JUDGMENT
A. Pasayat, J.
1. Scope and ambit of Section 125(3) of the Code of Criminal Procedure, 1973 (in short, the ‘Code’) is the subject-matter of this writ application.
2. Background facts leading to filing of this application are undisputed. Petitioner No. 1 Sabita Kumari Nayak is the wife of opposite party No. 1 Satrughana Nayak, while petitioners 2 to 4 are their minor children. A case under Section 135 of the Code was filed by Sabita claiming maintenance for herself and on behalf of her minor children on 21 -7-1982 before the learned SDJM, Kendrapara. On 10-4-1984, the learned SDJM disposed of the case granting maintenance of Rs. 400/- per month being payable by opposite party No. 1 from the date of application, i.e., 21-7-1982. As there was no payment and directions of the Court were not complied with, an application for realisation of arrear as well as for future maintenance by way of attachment of opposite party No. 1’s salary was filed and the said application was registered as Criminal Misc. Case No. 6 of 1985. In the said application petitioner No. 1 had prayed for realisation of maintenance dues for 31 months. Opposite party No. 1 appeared before the learned SDJM and took several adjournments for payment of maintenance to the petitioner, but did not make any payment. It is to be noted that after establishment of Family Court at Cuttack the case which was pending before the learned SDJM was transferred to the Court of Judge, Family Court and was re-numbered as Criminal Proceeding No. 192 of 1991. During pendency of Criminal Misc. Case No. 6 of 1985 before the learned SDJM, petitioner filed another application for dispensing with NBW for default in making payment of arrear maintenance. The learned SDJM directed issuance of NBW. Details of the arrears were submitted by the petitioner with prayer for realisation through attachment and sale of property. Attachment order was issued to the employer of opposite party No. 1 by learned Judge, Family Court by order dated 11-10-1991. Considering the applications filed by order dated 9-1-1991 direction was given for attachment of the salary by issuance of attachment warrant. It was stipulated that the arrears related to the periods from 21-7-1982 to 15-2-1985, and from 16-2-1985 to 15-11-1989. On 11-10-1991, petitioner No. 1 presented a petition before the learned Judge, Family Court, for issuance of attachment order against the salary of opposite party No. 1 for realisation of arrear maintenance. An order of attachment was issued attaching the salary of opposite party No. 1 to the extent of Rs. 600/- per month towards arrear maintenance. On 4-9-1992 opposite party No. 1 filed an application stating that two separate cases were to be registered in terms of Section 125(3) of the Act on the petitions dated 8-12-1991 and 10-3-1991. It was further submitted that the applications are barred by limitation. By order dated 6-5-1993, the learned Judge, Family Court directed his office to register two separate proceedings in view of the petitions filed by the petitioner and taking into consideration the objection filed by opposite party No. 1. Two criminal proceedings were registered, and they were numbered as Criminal Proceedings Nos. 174 of 1993 and 175 of 1993.
On 6-7-1993 petitioner No. 1 filed an application praying for condonation of delay in filing the two petitions, and to tag the two criminal proceedings registered with the original file. Considering the circumstances under which the applications were filed and highlighting conduct of opp. party No. 1 throughout the proceedings the said petition of the petitioner was rejected by the learned Judge, Family Court.
3. Petitioners’ stand in essence is that the original application was filed in time. Opposite party No. 1 did not prefer to make any payment and required the petitioner No. 1 to go on filing applications which led to multiplicity of proceedings and that is not the intent and purpose of Section 325(3). The learned Judge, Family Court while passing order for starting two separate cases has overlooked the fact that the petitioner No. 1 has prayed throughout for attachment of salary bf opposite party No. 1 for realisation of past and current maintenance. According to the petitioners; the view of the learned Judge, Family Court is untenable in view of first proviso to Sub-section (3) of Section 125 of the Code. The learned Counsel for opp. party No. 1 submitted that the first proviso to Sub-section (3) of Section 125 of the Code is clear and categorical, and it puts an embargo on the power of the Magistrate to issue any warrant for recovery of the amount due unless the application is made to the Court within a period of one year from the date of which it became due.
4. On a reading of the proviso it appears that the Legislature intended that the person in whose favour an order under Section 125(3) of the Code has been passed does not sleep over and allow the arrears to grow. Direction levying the amounts as and when they fall due, must be implicit in the direction given to the affected person. While interpreting Statutes Court has a duty to endeavour to see its legislative intendment and where the language is ambiguous and is capable of more than one meaning, the Court has a duty to sympathetically and imaginatively discover the true purpose and object of the provision by filling gaps, clearing doubts and mitigating hardships, harassment or unfair consequence. Chapter II of the Code deals with social purpose and is a beneficial and social legislation. The provisions contained in the Chapter have to be construed liberally and the Court should not take a negative approach. On the contrary it must be positive and affirmative action-oriented.
5. It has to be noticed that the proviso to Sub-section (3) of Section 125 of the Code in clear and categorical terms put an embargo on the power of the Magistrate to issue any warrant for recovery of the amount due unless the application is made to the Court within a period of one year from the date on which it became due. The first proviso to Sub-section (3) of Section 125 prescribes the period of limitation for an application for recovery of any amount of maintenance from the date from which it became due. Acquiescence of the opposite party cannot confer jurisdiction on the Magistrate to enlarge the limitation. In certain circumstances, an application can be made for a period beyond one year, for example, where a pending application has been closed for statistical purposes and fresh application is filed for the period covered by the earlier application and the period subsequent thereto. The proviso has been enacted to prevent person in whose favour an order for maintenance has been made from being negligence and allowing the arrears to pile up, so that their recovery becomes a hardship so far as the person from whom recovery is to be made is concerned. Court cannot enforce more than one year’s arrears. The first proviso to Sub-section (3), makes it abundantly clear that an application under the said Sub-section has to be made within a period of one year from the date on which the amount became due. Necessarily in clear terms the first proviso to Sub-section (3) puts an embargo on the power of the Magistrate to issue any warrant for recovery of the amount due, unless the application is made within one year from the date of the amount became due. In such a situation, it is incumbent on the Magistrate to first ascertain as to when the amount has become due. The proviso does not prescribe an overall period of one year for which maintenance may be claimed. The limitation of one year prescribed is in relation to the date on which the amount falls due in terms of the order of the Magistrate. The legal position is, therefore, clear that an application has to be filed within one year from the date it became due. But this case has some peculiar features. The factual background has been highlighted above. It shows a confused state of affairs, and lower Courts have added to the confusions in great measure. It is trite law that a party should not be made to suffer on account of mistake of Court. The learned Judge. Family Court, Cuttack by order dated 6-5-1993 started separate proceedings on the petition stated to have been filed on 3-11-1989. On 9-1-1991 another application was filed for attachment of salary for realisation of the outstanding maintenance. The petitioner in the said application had prayed for realisation of maintenance for the periods from 21-7-1982 to 16-3-1985 and from 16-2-1985 to 15-11 -1989. Though another memorandum was filed on 13-12-1990 giving details of the arrear up to 22-11-1990 with a prayer to issue warrant of attachment the Court did not consider the same while dealing with the petition dated 9-1-1991. On 18-8-1991 an application was tiled under Section 125(3) in the aforesaid proceeding for realisation of maintenance for the period from 16-11-1989 to 18-3-1991. The said application was numbered as Criminal Proceeding No: 174of 1993. On 11-10-1991, the learned Judge, Family Court was moved for attachment of salary which was done, and attachment of salary warrant was issued, and some amount was recovered. At the belated stage opposite party No. 1 filed an objection taking the plea of limitation.
6. In the peculiar circumstances, we are of the view that opposite party No. 1 is liable to pay for the period from 21-7-1982 to 15-11-1989. The subsequent memorandum dated 13-12-1990 being not in accordance with law, same has been rightly not acted upon by the learned Judge, Family Court. We direct opposite party No. 1 to pay the arrear maintenance after adjustment of payment if any made within two months from today. This order is being passed in the peculiar facts and circumstances of the case, particularly taking note of the claim by minors who are petitioners 2,3 and 4 who in a given case may be entitled to extension of the period of limitation in terms of Section 4 of the Indian Limitation Act, 1963 read with Section 29(2) thereof.
The writ application is disposed of accordingly.