ORDER
G. Radhakrishna Rao, J.
1. Respondents 1 and 2 are wife and son of the petitioner. They filed a petition under Section 125 Cr.P.C. for maintenance before the Magistrate. The Magistrate granted maintenance at the rate of Rs. 250/- to the wife and Rs. 200/- to the son, payable from 3-10-1983. As the husband failed to pay any amount and as the total amount was Rs. 9,225/-, the wife and son filed Crl. M.P. No. 22/86. Notice was issued to the husband and later non-bailable warrant also was issued to the husband, but it was recalled. The husband filed a counter, admitting the amount but contended that under Section 125(3) Cr.P.C. the petition is barred by time and no warrant can be issued for the recovery of the amount. He also contended that he has no ready means to pay the arrears.
2. Before filing the petition, the wife and son filed Crl. M.P. No. 227/85 on 18-3-1985 for realisation of the maintenance and it was dismissed for default on 22-7-1985 for non-prosecution. Another Crl. M.P. 1093/85 was filed on 24-7-1985 and it was also dismissed for default on 8-11-1985. Subsequently the present petition has been filed on 13-11-1985 for realisation of the amount of Rs. 9,225/- towards arrears of maintenance from 3-10-1983. The Magistrate by his order dated 11-5-1986 in M.C. No. 6/84 directed the husband to pay the amount of Rs. 9,225/- within a month in two instalments. Against that, Crl. Revision Petition No. 34/86 was filed. The Sessions Judge, after considering Section 125(3) Cr.P.C. and the proviso found that in view of the three applications filed earlier to the present petition and they were dismissed for default, the question of limitation does not arise and dismissed the same. It is against that, the present petition has been filed under Section 482 Cr.P.C.
3. The proviso to Section 125 (3) Cr.P.C. reads as under:
“No warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date of which it became due”.
Relying on this proviso, the learned counsel for the petitioner contended that the application is time barred and, therefore, the petitioner is not bound to pay the amount and no warrant can be issued for recovery of the amount due for the period more than 12 months.
4. In this case, three applications have been filed. The first application was filed on 18-3-1985. The order of the Magistrate awarding maintenance is dated 19-3-1984. The first application is within 12 months. This application was dismissed on 22-7-1985. The second application Crl. M.P. No. 1093/85 was filed on 24-7-1985 and the delay of one day was condoned and that petition was dismissed on 8-11-1985. Again Crl. M.P. No. 22/86 was filed on 13-11-1985 with a condonation petition for condoning the delay of 5 days. Delay was condoned. As the delay has already been condoned and as the first application is within time, the lower court has not accepted the contention that the petition is barred by time.
5. Proviso 2 of Sub-section (3) of Section 488 of the Crl.P.C. (old) reads as under:
“No warrant shall be issued for the recovery of the amount due under this Section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due”.
While considering that proviso, the Allahabad High Court in Shankar Deo v. Savitri Devi, 1974 (1) Crl.L.J. 135 (Allahabad), held that successive applications made within one year of each other from the date of the order of maintenance is within time. In that case, the maintenance order was passed on 19-12-1966 at the rate of Rs. 40/- per month to be effective from the date of the order. The first execution application was made on 10-2-1967 and the wife claimed Rs. 140/- i.e. Rs. 40/- as arrears of maintenance and Rs. 100/- as costs of the case. A revision was filed against that by the husband and the proceedings were stayed by the Sessions Judge and after the dismissal of the revision by the Civil and Sessions Judge, a revision petition was filed in the High Court and the proceedings were stayed. Successive applications for recovery of maintenance had been made by the wife within a year of each other from 19-12-1966 to 26-2-1969. It was found that no part of the claim had become time barred and the order of the Sessions Judge is incorrect. The learned Sessions Judge has not given any reason for Holding that the wife is entitled only to a sum of Rs. 480/- and why the rest of the amount had become barred by limitation. The same reasoning also will apply to the facts of the present case.
6. In U. Upay Latt v. Ma Po Byu, 1936 (37) Crl.L.J. 91 (B) (Rangoon). It was held that the Proviso to Section 488 (3) of the Cr.P.C. was clearly enacted to prevent the person in whose favour an order for maintenance was made, from being negligent and allowing arrears to pile up until their recovery would become a hardship or an impossibility. It was not meant that a loop-hole should be given to the person against whom an order for maintenance was made to evade payment by preventing the service of process on him. In fact the proviso was evidently worded in the way it was, expressly to preclude the possibility of such an evasion. In that case the wife had applied for maintenance for four months. Since the husband could not be traced, the application was dismissed. She again applied for maintenance, in arrears for fifteen months. It was held that a warrant could be issued for the whole period and the order of maintenance of fifteen months was correct.
7. In Cheti Bai v. Narcomal Shehoomal, 39 Crl.L.J 847, it was held that a person in whose favour an order for maintenance has been made must, to enable her to recover arrears of maintenance, apply to the court to recover such arrears within one year from the date the arrears became due. In that case, the learned Magistrate held that under Section 488 Cr.P.C. claim for maintenance allowance has to be enforced for a period of twelve months and not more. It was held by their Lordships that the learned Magistrate had allowed himself to fall into error by misreading proviso 2 to Sub-clause (3) of Section 488 Cr.P.C. In that case also, successive applications for recovery of arrears of maintenance had beer made by the applicant within a year of each other.
8. In Jagat Bandhu Sahu v. Lakshmi Devi, 1958 Crl.L.J 1425, the wife applied for realisation of arrears of maintenance due. The claim included also a certain amount which was for a period more than one year old from the date when it fell due. But in the application it was stated by the wife that the sum had already been claimed by her in an application brought within time but it could not then be realised. It was held that under these circumstances the application should be taken to be the continuation of the previous application upon which it was not possible to realise the amount due to the inability of the Court. The claim was therefore not barred by limitation and the Magistrate was justified in issuing a warrant for realization of the arrear of the maintenance. The limitation provided in the second proviso to Sub-section (3) should not be so construed as to give a loop-hole for a negligent husband to avoid payment in the first instance and, then by evading appearance before the Court when the application is made, raise the plea of limitation.
9. In Kirparam Chootan Rao v. Kalabai, 1960 Crl.L.J. 1093 (1), it was held that dismissal for default of appearance, of an application for warrant for recovering arrears of maintenance cannot render the application non-existent for the purpose of satisfying the condition as to limitation laid down in Section 488 (3) Proviso 2.
10. In Shanker Deo case (1 supra) it was found that successive applications for recovery of arrears of maintenance made by the wife within a year of each other from 19-12-1966 to 26-2-1969 is not barred by limitation.
11. What all that has to be done in a claim for realisation of the amount due under a maintenance order is that the first application must be filed within a period of one year mentioned in the Proviso to Section 125 (3) Cr.P.C. Even if the applications filed within one year have been dismissed for default or for non-prosecution or for some other reason, the party is entitled to recover the same, provided another application has been filed within one year. But when it was dismissed for default, another application made subsequently for the same purpose within one year may be granted although such application may have been made after the period of one year mentioned in the Proviso. It is only the first application that has to be made within one year.
12. In this case, three applications were filed The first application was dismissed for non-prosecution and the second application was filed with a condonation petition to condone the delay of one day and the delay was condoned and the second application was also dismissed. The third application was filed within five days and that application was beyond 12 months from the date of the order. Basing on the rulings cited above and the view expressed by this Court that the first application has to be filed within one year from the date when it has become due, I feel that the entire claim that has been made, has to be ordered. The previous applications have to be treated as successive application made for recovery of the arrears. When successive applications are made and when the first application is within one year, the husband cannot plead that the claim chat has been made is more than 12 months and that he need not pay the amount due for more than 12 months.
12. In the result, the petition is dismissed.