Posted On by &filed under High Court, Madhya Pradesh High Court.


Madhya Pradesh High Court
Maya Devi And Others vs Shankarlal Rajak on 14 November, 2000
Equivalent citations: 2001 (2) MPHT 195
Author: S Pandey
Bench: S Pandey


ORDER

S.C. Pandey, J.

1. This revision is directed against the order dated 24-11-95 passed by the Judicial Magistrate, 1st Class, Jabalpur in MJC No. 443/95.

2. Applicant No, 1 Maya Devi and her two daughters namely, Ku. Goldi and Ku. Pooja had filed an application for grant of maintenance under Section 125 of the Code of Criminal Procedure, 1973 (henceforth the Code)
in Criminal Case No. 23/88 which was allowed. Applicant No. 1 was granted maintenance at the rate of Rs. 200/- per month and so far as applicant Nos. 2 and 3 are concerned, they were granted maintenance at the rate of Rs. 100/-each per month by order dated 5-1-91. Thereafter an application was made on 26-4-95 for recovery of the amount alleging that from April, 93 onwards the amount has not been paid.

3. The respondent inter alia raised an objection to the effect that in view of Section 125(3) of the Code recovery of amount should he confined to one year prior to Filing of the application. The rest of the amount stood time barred in view of sub-section (3) of Section 125 of the Code. The Court below accepted the objection of the non-applicant and issued warrant of recovery only in respect of the amount Rs. 5,100/- which was due for a period of one year prior to filing of the application.

4. It appears from MJC No. 23/88, the original order passed on 5-1-91 that Ku. Goldi and Ku. Pooja were alleged to be aged about 6 and 4 years respectively at that time. It appears from the records that thereafter MJC No. 3/94 for enhancement of the maintenance was filed, in which the earlier order dated 5-1-91 passed in Criminal Case No. 23/88 was modified and it was held that applicant No. 1 shall be entitled to Rs. 300/- p.m. and applicant Nos. 2 and3 shall get Rs. 200/- p.m. each. Thus, a liability of Rs. 700/- p.m. was imposed upon the non-applicant by order dated 10-3-95.

5. It is the contention of the petitioners at this stage that petitioner No. 1 made an application under Section 125 of the Code on behalf of petitioner Nos. 2 and 3 who were minors. They continued to be minors on the date of passing of the impugned order in the year 1995 and, therefore, at least so far petitioner Nos. 2 and3 are concerned, limitation provided in first proviso of Section 125(3) of the Code would not apply. Reliance is placed on a case reported in 1994 Cr.LJ. 565 (Laxmi and others Vs. Nakka Narayan Goud and another).

6. It was held in the case of Laxmi and others (supra) that in view of Section 6 read with Section 29(2) of Indian Limitation Act, no limitation could be prescribed for the minors and the proviso is limited to major persons. It was further held that so long as the minors do not attain majority, there can be no fetter of limitation prescribed under 1st proviso to sub-section (3) of Section 125 of the Code and the said provision has to be read down to the effect that the prescribed limitation is only applicable to persons who had attained majority when the cause of action for recovery of amount due arose.

7. It has been laid down in sub-section (2) of Section 29 of the Limitation Act, 1963 that where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed in the Schedule to that Act, then apart from the provisions of Section 3 of Indian Limitation Act, Sections 4 to 24 of the Limitation Act shall apply to the extent they are not excluded from operation by any special law or local law.

8. In the case of Kaushalya Rani Vs. Copal Singh (AIR 1964 SC 260), the Supreme Court was required to interpret the meaning of words ‘special law” in Section 29(2) of the Limitation Act, 1908 and it was held that the limitation of sixty days as per Section 417(4) of the Code of Criminal Procedure, 1898 provided for filing leave to appeal against acquittal under Section 417(3) of that Code which was covered by those words. However, interpreting Section 29 (2) (a) and (b) of Limitation Act, 1908, as they stood then, it was held that Section 5 of Limitation Act would not apply for filing an application under Section 417 (3) of the Code of Criminal Procedure, 1898. However, the legislature redrafted and recast Section 29(2) of the Limitation Act while passing the Limitation Act, 1963. The newly drafted Section 29(2) of the Limitation Act, 1963 applied Section 5 of Limitation Act to local and special laws. In AIR 1976 SC 105, the Supreme Court followed the decision of Kaushalya Rani for holding that an application under Section 417 (3) read with Section 417 (4) of the Code of Criminal Procedure, 1898 is a special law. It, however, applied Section 5 of the Limitation Act, 1963 in view of Section 29(2) of that Act.

9. From the aforesaid decisions, on parity of reasoning an inference can be drawn that Section 125 of the Code is a “special law” within the meaning of Section 29(2) of the Indian Limitation Act, 1963. It provides for protection against vagrancy and is supplemental the right to obtain maintenance under the general civil law. It has been held to be a speedy remedy to be given to persons named in that Section who are not being provided with maintenance. The Ist proviso to sub-section (3) of the Code is special law for the reason it provides limitation for claiming maintenance to the extent of one year from the date it became due.

10. Once this conclusion is reached. Section 6 of the Limitation Act are attracted as it is made applicable by Section 29(2) of the Limitation Act, 1963. Section 6 of the Limitation Act confers a legal disability to a minor to institute a suit or make an application. For this reason, the applicant Nos. 2 and 3 could not have filed an application for execution of the order as per Section 125(3) of the Code. This Court, consequently, agrees with the decision tendered by Hon’ble Mr. Justice B. Subhashan Reddy in the matter of Laxmi and others (supra) and holds that so long as applicant Nos. 2 and 3 do not attain majority, the time given under 1st proviso to Section 125(3) of the Code would not run. Accordingly the order dated 24-11-95 is hereby set aside and the case is sent back for determination of maintenance amount due so far applicant Nos. 2 and 3 are concerned. It is made clear that 1st proviso to Section 125(3) of the Code shall remain in operation so far as applicant No. 1 Maya Devi is concerned.

11. With the above observations, the impugned order dated 24-11 -95 is set aside. The case is remitted back for fresh orders in accordance with law.

12. The revision is allowed to the extent indicated above.

13. Criminal Revision allowed.


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