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Criminal Revision No.3 of 1987, decided on 12th August, 1987.

---S. 488(3)--Enforcement of order for payment of maintenance allowance--Limitation. The law prescribes a period of 12 months to levy the amount of maintenance allowance. It postulates that no warrant for levying the amount due against husband or father under section 488, Cr.P.C. shall be issued unless 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 quite clear from the language used in proviso 2 of subsection (3) of S.488, Cr.P.C. that the application is to be moved for payment of the amount within a period of one year when it became due. If the application was beyond time, the Magistrate could not issue warrant for payment of the past dues.

---S. 490--Provisions of S. 490, Cr.P.C. empower any Magistrate in any place to enforce order against husband or father as the case may be--Only conditions enjoined upon the Magistrate is that he must be satisfied as to the identity of the parties and non-payment of the maintenance allowance.

---S. 488(3)--Enforcement of order for payment of arrears of maintenance allowance--Application was moved after a period of five months from date of passing of the order for payment of maintenance allowance--Sub-Divisional Magistrate kept said application pending unnecessarily for a long period when ultimately was transferred to the Court of another Magistrate who again consumed long period in deciding the matter and finally dismissed application on the ground that he had no jurisdiction--Minor, without any delay, moved second application before Additional District Magistrate who passed original order for payment of maintenance--Minor, held, could not be burdened with the liability recognized by S. 488(3) proviso (ii), Cr.P.C. as it was rather the Magistrate who fell prey of wrong interpretation of law by disowning his jurisdiction.

P L D 1964 Lah. 242; P L D 1961 Lah. 199; A I R 1960 Madhya Pradesh 241 and A I R 1958 Orissa 257 ref.

P L D 1961 Lah. 199; P L D 1974 S C 22 and P L D 1975 AJK 131 distinguished.

Raja Lehrasap Khan for Petitioner.

M.S. Tariq for Respondent.

The petition raises question of limitation to enforce an order for payment of maintenance allowance under Section 488 (3), Cr.P.C.

2. Zafar Iqbal is admitted minor son of Muhammad Suleman. Zafar Iqbal resided alongwith his mother in village Abdupur, whereas Muhammad Suleman resided at Ban Khurman. It is undenied that the parties reside within the limits of Tehsil and District Mirpur. Zafar Iqbal moved the A.D.M. Mirpur under section 488, Cr.P.C. for payment of maintenance allowance in his favour. The application was moved on August 5, 1980. The learned A.D.M. allowed the application in favour of the minor son against father with the direction of payment of maintenance allowance in the sum of Rs.100 per month from the date of the application. It was further maintained that the arrears i.e. period between the application and passing of the order, shall be paid in lump sum, whereas the maintenance allowance was to be paid within the period between first to eighth day of every month, through mother of the minor. Zafar Iqbal filed an application for realisation of the amount by enforcing the order of the Magistrate, in the Court of S.D.M. Mirpur on April 19, 1982 i.e. five months and 7 days after the passing of the final order. The learned S.D.M. issued notice to the father to show cause why the amount should not be realised as well as to explain as to way he failed to pay arrears in the light of the direction of the A.D.M. Nevertheless, the application for enforcement of order was transferred by the District Magistrate to the Court of Revenue Assistant, Magistrate 1st Class, Mirpur, on May 21, 1984. The objections to the application were filed by the father on February 17, 1986. Ultimately, the application of the minor was dismissed for want of jurisdiction on March 5, 1987. On failure to secure maintenance allowance in consequence of dismissal of first application, the minor moved another application before the A.D.M. two days after the dismissal of the first application i.e. on March 7, 1987. In the second application, the minor described all the facts relating to the previous application and reasons of its dismissal. Moreover, he claimed the arrears with effect from the date of the application till the time of second application. The petitioner was opposed by the father, among others, on the ground of limitation. The objection was overruled with the direction of payment of maintenance allowance upto date. This order was passed on April 23, 1987. The father feeling dissatisfied with the decision of the A. D.M. preferred revision petition before the Sessions Judge Mirpur and on failure to secure an order in his favour, challenged the said order before this Court.

3. Raja Lahrasap Khan, the learned Counsel representing the father, argued that it was imperative under proviso 2 of subsection (3) of section 488, Cr.P.C. to move for enforcement of order passed under section 488, Cr.P.C. within a period of one year. The present application of the minor being patently beyond the statutory period, was not maintainable. The learned Counsel emphasised that the only remedy available to the minor was to bring his suit in the civil Court for realisation of the arrears. He cited PLD 1964 Lahore 242. His contention was opposed by Mr. M.S. Tariq, the learned Counsel who represented the minor. It was contended on behalf of the minor that the second application was in continuation of the first application moved before the S.D.M. within statutory period. Therefore, the objection was devoid of force. The learned Counsel cited PLD 1961 Lahore 199.

4. I have perused the record in the light of the objections raised in this Court. The proposition confines to the question of limitation as envisaged under proviso 2 of subsection (3) of Section 488, Cr.P.C. relating to enforcement of order for payment of maintenance allowance. The law prescribes a period of 12 months to levy the amount of maintenance allowance. It postulates that no warrant for levying the amount due against husband or father under Section 488, Cr.P.C. shall be issued unless 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 quite clear from the language used in proviso 2 of subsection (3) of Section 488, Cr.P.C. that the application is to be moved for payment of the amount within a period of one year when it became due. If the application was beyond time, the Magistrate could not issue warrant for payment of the past dues. In the present case, the situation, a: explained above, is not contrary to the provision of law described under proviso 2 of subsection (3). It is noticed that the application was moved after a period of five months from the date of passing of the order for payment of maintenance allowance. The S.D.M. kept pending the application unnecessarily for a long period when ultimately it was transferred to the Court of Revenue Assistant, Magistrate 1st class; who, again consumed long period in deciding the matter. It is regretable that an application for enforcement of an order under Section 488. Cr.P.C. consumed more than 6 years in the Court of S.D.M. and Revenue Assistant. Magistrate 1st Class, Mirpur, without any justification. The attitude adopted by these Magistrates is, obviously, deplorable. Nevertheless, the fact remains that the first application was dismissed, again, due to error of the Magistrate. This is so as Section 490, Cr.P.C. empowers any Magistrate in any place to enforce the order against husband or father, as the case may be. The only condition enjoined upon the Magistrate is that he must be satisfied as to the identity of the parties and non-payment of the maintenance allowance. In the present case, not only that the father, defaulter in the case, resided within the local limits of Revenue Assistant Magistrate 1st Class, Mirpur, the Magistrate even otherwise, in compliance with the provision of section 490, Cr.P.C was equally competent to enforce the order. That order was patently illegal.

5. It is also noticed that the minor, without any delay, moved the second application before the A.D.M. who passed original order for payment of maintenance allowance. Thus, there is no negligence on the part of the minor to realise the arrears of maintenance allowance. The second application is not an independent. action of the minor but it is in the process of the continuation of the first application: moved before the S.D.M. and subsequently dismissed by the Revenue Assistant, Magistrate Ist Class. The minor, therefore, cannot be burdened with the liability recognized by proviso second of subsection (3) of Section 488, Cr.P.C. This is quite in accordance with the accepted rule of justice. There have been cases where the first application was dismissed for default and second application was moved after some interval for payment of dues and such second application was considered as continuation of the previous application. Similarly, there is also an instance before this Court where a wife applied for enforcement of an order for payment of maintenance allowance and her application was dismissed as the husband was not traceable. She applied second time, after some interval after passing of the statutory period. Her second application was also deemed within time in consideration of the facts of that case. The present case is on stronger footing as compared to those cases. In this respect, reference may be made to Kirparam Chhotan Raot's case (AIR 1960 Madhya Pradesh 241) where the first application for recovery of the arrears of maintenance allowance was filed by the wife within 12 months. The husband was not served throughout the proceedings and ultimately, the application was dismissed for default in appearance on the part of wife. More than a month thereafter, another application was filed by wife. The second application was filed after lapse of' one year. An objection was raised before the learned Judge that the application could not be made for payment of arrears as the same was barred by limitation. The objection was overruled. It was observed:-

"The dismissal for default of appearance, of an application for a warrant for recovering arrears of maintenance cannot render the application non-existent fox the purposes of satisfying the condition as to limitation laid down in S. 488 (3) proviso 2.

(2) Hence where an application for levy of maintenance is made within the period of one year mentioned in the priviso, but is dismissed for default, another application made subsequently for the same purpose, may be granted, although such application may have been made after the period of one year mentioned in the proviso."

In Jagat Bandhu Sahu's case (AIR 1958 Orissa 257), the wife in whose favour an order was passed under Section 488, Cr.P.C., applied for realisation of the arrears of maintenance allowance due to her. The application was dismissed as the husband was not traceable. After the expiry of period of one year when the whereabouts of husband were known to her, she moved another application in which she claimed all the arrears due against the husband. The application was opposed on the ground of limitation. The objection was overruled by the learned Chief Justice of Orissa High Court. The relevant observation is reproduced:-

"The wife applied for the realisation of arrears of maintenance due. The claim included also a certain amount which was for a period more than one year old from when it fell due. But in the application it was clearly 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:

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 maintenance. The limitation provided in the second proviso to sub-S. (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."

6. The learned Counsel for the minor argued that the first application was dismissed for want of jurisdiction as the minor was not adequately advised by his Counsel to move the application before the Magistrate within local limits of whose jurisdiction father resided. The gist of the argument was that the period consumed in the first application was due to wrong advice of the Counsel, as such the minor was eligible to condonation of delay. Reference was made to PLD 1961 Lahore 199, PLD 1974 S.C. 22 and PLD 1975 AJK 131. I am, riot convinced to hold that the Counsel representing the minor before the S.D.M. or Revenue Assistant, Magistrate 1st Class, wrongly advised him. The legal advice was absolutely correct and the Revenue Assistant, Magistrate 1st Class was equally competent to grant the application by directing father to pay the arrears. It was rather the Magistrate who fell prey of wrong interpretation of law by disowning his jurisdiction. Therefore, the authorities cited by the learned Counsel are not relevant to the proposition under consideration.

7. Raja Lehrasap Khan, the learned Counsel representing the father, further pleaded for fixing instalments for payment of arrears of maintenance as, according to him, father had no means to pay the arrears at once. I have considered the plea in the light of the record. The amount of maintenance was fixed by the learned A.D.M. keeping in view the financial condition or means of the father. The father has not been able to show sufficient cause for his failure to comply with the direction of the Court, to pay maintenance to his minor son. In absence of any sufficient cause for his negligence and failure to pay the maintenance allowance, I do not consider him entitled to any leniency or concession at this stage. The fact of the matter is that in present days and time when the costs of necessities of life have gone so high, the amount of maintenance allowance being one-fourth of the statutory amount, is immaterial, rather insufficient for the maintenance of the minor. He is already placed in hardship and difficult position as nothing was paid to the minor during last six years. Therefore, I do not consider expedient to deprive him further of an amount due to him since long. The plea is, therefore, rejected.

8. In view of the above position, finding no force in the application, it is hereby dismissed. The order of the learned A.D.M. is maintained.

M.B.A/327/H.C.A. Application dismissed.

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