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Criminal Miscellaneous No. 3369 of 11963, decided on 11th March 1964.

Arrears of maintenance for period beyond one year from date of application ---Not recoverable under S. 488‑Such arrears can be realised only through Civil Courts‑Husband divorcing wife‑Liable to pay maintenance for period of iddat.

U. Hpay Latt v. Mapobya A I R 1935 Rang. 407 not fol.

Jasodabai wife of Tara Chand v. Tara Chand Tek Chand A I R 1939 Sind 180 rel.

Sardar Ata Ullah for Petitioner.

Inayat Hussain for Respondent.

Date of hearing : 11th March 1964.

An order was made on the 7th of May 1962 under section 488, Cr. P. C. in favour of Mst. Kalsoom Begum against her husband Muhammad Arif for payment of maintenance at the rate of Rs. 100 p.m. Mst. Kalsoom Begum put in an application on the 20th of March 1963, for the recovery of the maintenance allowance, but this was dismissed in default on the 20th of August 1963. Thereafter, she made another application for the same relief on the 18th of September 1963. Muhammad Arif petitioner appeared and stated before the learned Magistrate that he had divorced Mst. Kalsoom Begum, his wife. Thereupon, the learned Magis trate directed him to pay maintenance allowance at the stipulated rate from the 7th of May 1962 till 3rd of March 1963. Muhammad Arif has filed a revision petition against this order.

2. It is contended by the learned counsel for the petitioner that according to second proviso to subsection (3) of section 488, Cr. P. C. no warrant shall be issued for the recovery of any amount due under section 488, Cr. P. C. unless an application is made to the Court to levy such amount within a period of one year from the date on which it became due. It is, therefore, urged that since the second application was made on the 18th of September 1963 no warrant for its recovery could have been issued. It is further contended that the petitioner was not liable to pay the maintenance allowance for the period of iddat. The learned counsel for the respondent has contended that since the first application was made within the period of one year the amount was realisable by issuing a warrant. He has cited U. Hpay Latt v. Mapobya (A I R 1935 Rang. 407) in support of this contention there is no doubt that this authority supports the contention of the learned counsel but I am sorry that I am not inclined to follow this authority, because it is against the very wordings of the statute. The proviso runs as follows :‑

"Provided further that no warrant shall be issued for the recovery of any amount due under this section unless applica tion be made to the Court to levy such amount within a period of one year from the date on which it became due."

No doubt the wife in such a case can recover the maintenance allowance for the total period through a civil Court but so far as the recovery through a criminal Court is concerned it can only order the recovery of the amount for the period of one year before the date of the application. In the present case, therefore, the learned Magistrate can recover the amount due from the petitioner from the 17th of September 1962 till the 3rd of March 1963, the date on which the period of iddat expires. Jasodabai wife of Tara Chand v. Tara Chand Tek Chand (A I R 1939 Sind 180) supports my view. In this case, the Magistrate had totally dismissed the petition as it was filed after one year of the passing of the order for mainte nance. The learned Judge of the Chief Court set aside the order and directed the learned Magistrate to recover the amount for the period beginning from one year before the filing of the applica tion. The second contention of the learned counsel for the petitioner has no force because till the expiry of the period of Iddat Mst. Kalsoom Begum continues to be the wife of Muhammad Arif and she would be 'entitled to receive the maintenance till then. The revision petition is disposed of accord ingly.

K. B. A.

Order accordingly.

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