Supreme Court of India
AMARENDRA KUMAR PAULversusMAYA PAUL & ORS.
- Citation
- 2009 INSC 1009
- Decided
- 4 August 2009
- Disposal
- Dismissed
- Bench
- S B SINHA
Holding
An execution of a Section 125 maintenance order is not maintainable for children who have attained majority, and the limitation period is computed under Section 15 of the Limitation Act, excluding the period of stay.
Summary
The husband appealed against a magistrate's order granting maintenance to his wife and three children under Section 125 of the CrPC. The children, who were minors when the order was made, later attained majority or married, and the wife filed execution applications seeking arrears for periods after those events. The lower courts dismissed the execution for the period May 1997‑April 1998, holding the children were no longer entitled to maintenance, but allowed maintenance up to the dates of majority or marriage for the other periods. The husband contended that the execution applications were not maintainable because the children were adults and that the one‑year limitation under Section 125(3) barred the filings. The Supreme Court held that Section 125 applies only while a child is a minor (or an unmarried daughter) and ceases once majority or marriage is attained, and that the limitation period is governed by Section 15 of the Limitation Act, which excludes the period of stay. Since no maintenance order existed after the children became adults, no recovery could be claimed, and the appeal was dismissed.
Issues considered
- Whether an execution application under Section 125 CrPC is maintainable for children who have attained majority or married.
- What is the applicable period of limitation for filing an execution application under Section 125(3) and how a stay order affects its computation.
- Whether maintenance can be claimed for periods after the children cease to be entitled under Section 125.
Legislation cited
- Code of Criminal Procedure, 1973s. 125, s. 125(3)
- Indian Majority Act, 1875
- Limitation Act, 1963s. 15
Subjects
Section 125 CrPCmaintenanceminor childrenmajoritymarriagelimitation periodexecution of decreestay order
Judgment
[2009] 12 S.C.R. 380
A AMARENDRA KUMAR PAUL ., .
v.
MAYA PAUL & ORS.
(Criminal Appeal No. 1413 of 2009)
AUGUST 4, 2009
B
[S.B. SINHA AND CYRIAC JOSEPH, JJ.]
Code of Criminal Procedure, 1973:
..
c s.125 - Maintenance - Under s.125, son is entitled to
grant of maintenance till he has not attained majority and
daughter is entitled till she is not married.
s. 125 - Execution application - Period of limitation - On
facts, order of stay granted by revisional court and by High
D Court in the s. 125 proceedings - Limitation for filing
~
application for execution would be computed upon excluding
the period during which the order of stay was operating -
Limitation.
E In 1984, a maintenance application was filed against
appellant-husband uls.125 Cr.P.C. by respondent-wife for
herself and for her minor son and daughters. Magistrate
ordered payment of maintenance @ Rs.500 p.m. in favour ....
of wife and @ Rs.125 p.m. for the three minor children.
F On 13.7.1994, the magistrate allowed application for
enhancement of maintenance in respect of minor
children @ Rs.450 p.m. from February, 1993. Revisional
court and High Court upheld the order of magistrate.
In 1998, respondents filed an application for
G execution of order dated 13.7.1994 before the magistrate
.
praying for maintenance for the period May 1997 to April,
1998. The application was dismissed on 9.6.1999 opining
that all the children had attained majority. However
H 380
AMARENDRA KUMAR PAUL v. MAYA PAUL & ORS. 381
..>·.
despite this, wife filed another execution case claiming A
maintenance for the period February 1993 to May 2004.
;;.
The Magistrate opined that respondent-son became major
on 11.5.1997. Respondent-daughter got married on
11.5.2003 and the other daughter was still unmarried. It
was directed that the son was entitled to maintenance till B
he attained majority and daughters were entitled till
marriage. However maintenance applicatior for the
period May, 1997 to April, 1998 was dismissed as the
.~
same was rejected earlier by the Court. Revision
thereagainst was dismissed. c
In appeal to this Court, appellant contended that the
execution application for the purpose of executing the
order granting maintenance for the minor children was
not maintainable as they had attained majority; and that
the period of limitation prescribed for filing an execution D
';
application for executing an order under Section 125
CrPC being one year, the impugned judgment was not
maintainable.
Dismissing the appeal, the Court E
HELD: 1. The Magistrate in his judgment dated
.,;9.6.1999 categorically arrived at a finding of fact that in
the year 1997, all the three children of the first respondent
had attained majority. Her daughter was 8 years of age
F
on 31.8.1984. She, thus, attained majority on or about
31.8.1994 whereas the other daughter and son who were
twins, being aged 5 years on the said date, became major
in 1997. An application for grant of maintenance,
therefore, was maintainable, so far as the children were
~ concerned, till they had not attained majority. As a cause
G
of action for grant of maintenance would arise only in the
event a person having sufficient means, neglects or
refuses to maintain his legitimate or illegitimate minor
child unable to maintain itself. Once, therefore, the
H
382 SUPREME COURT REPORTS [2009] 12 S.C.R.
A children attained majority, the said provision would cease ••
to apply to their cases. [Paras 9 and 11] [387-B-C; 388-H;
389-A-B] ..
2. A period of limitation is provided for in terms of
Section 125 CrPC. However, in a case of this nature,
8
Section 15 of the Limitation Act would apply. In fact, the
order of stay was granted by the revisional court as also
by the High Court in these proceedings. The limitation for
filing application for execution would be computed upon "'
excluding the period during which the order of stay was
C operating. It is clear from the order of the Magistrate that
no order of maintenance was passed in favour of the
children after they attained majority. In that view of the
matter, the question of recovery of any amount from the
petitioners towards the maintenance granted to the
D children after they had attained majority does not arise. ~
In this case the direction was issued to recover the
amount of maintenance only for the period prior to the
sons' attaining majority and the daughters getting
married and hence no interference with the impugned
E judgment, in this behalf, is called for. [Paras 14, 15 and
18] [391-A; 392-D; 392-G-H; 393-A]
Shantha @ Ushadevi & Anr. v. B.G. Shivananjappa ..
(2005) 4 sec 468, relied on.
F Case Law Reference:
(2005) 4 sec 468 relied on Para 13
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1413 of 2009.
G
From the Judgment & Order dated 23.07.2007 of the High
Court of Calcutta in C.R.R. No. 1510 of 2006.
R.K. Gupta, S.K. Gupta, Arun Yadav, Manoj K. Mishra for
H the Appellants.
AMARENDRA KUMAR PAUL v. MAYA PAUL & ORS. 383
•
-"" Avijit Shattacharjee, Subrata Siswas for the Respondents. A
The Judgment of the Court was delivered by
5.8. SINHA, J. 1. Leave granted.
2. Appellants herein are aggrieved by and dissatisfied with s
a judgment and order dated 23rd July 2007 passed by a
learned Single Judge of the Calcutta High Court whereby and
whereunder the order dated 15th February 2006 passed by the
,_ Judicial Magistrate, 2nd Court, Serhampore, in Execution Case
No.186 of 2005 for execution of an order passed under Section c
125 of the Code of Criminal Procedure (for short, 'the Code')
was upheld.
3. The relationship between the parties is not in dispute. 1
The 1st respondent is the wife of the appellant herein. They
D
. have three children. 1st respondent herein filed an application
" in the year 1984 for grant of maintenance in terms of Section
125 of the Code not only on her own behalf but also on behalf
of her two minor daughters, viz., Sandhu Priya Paul and
Sandhu Priti Paul as also her minor son, viz., Sandhu Prakash
Paul from February 1983. Pursuant thereto or in furtherance E
thereof an order was passed in her favour by a learned
~- Magistrate on 24th August 1987 directing payment of
maintenance @ Rs.500/- per month in favour of 1st respondent
and@ Rs.125/- per month for the three minor children.
F
An application for enhancement of the said amounts of
maintenance was filed which was registered as Misc. Case
No.6 of 1993. The learned Chief Judicial Magistrate, by a
judgment and order dated 13th July 1994, directed
enhancement of maintenance in respect of the said minor
• children @ Rs.450/- per month from February 1993. A criminal G
revision case thereagainst filed by the appellant was dismissed
by the learned Sessions Judge by an order dated 18th
February 1997. The said order was challenged by the appellant
before the High Court and the High Court dismissed the
H
384 SUPREME COURT REPORTS [2009] 12 S.C.R.
A application being C.R.R.No.1852 of 1997 filed by the appellant ~.,.
by an order dated 12th March 2004 stating :
"13. I find, thereforP. that there is no reason whatsoever to
interfere with the impugned order of the learned Additional
Sessions Judge, Murshidabad dated 1·8.2.1997 in
B
Criminal Motion No.285/94 and the same is affirmed. This
revisional application has no merits and is, therefore,
dismissed."
4. In the meantime, in the year 1998, an application for
C execution of the order dated 13th July 1994 was filed in the court
of Chief Judicial Magistrate, Murshidabad praying for
maintenance for the period May 1997 and April 1998. The said
application was dismissed opining that one of the objections
taken therein was that all the children had attained majority. The
D relevant portion of the said order dated 09th June 1999 runs
as under:
"It appears that this execution case is filed for the
maintenance allowance of three children of the Petitioner
and for the period from May 1997 to April 1998 in
E
execution of the order passed in their favour on 13. 7.1994.
It appears that the children are 1) minor Bandhu Priya Pal,
2) minor Bandu Priti Pal and 3) minor Sandhu Prokash
Pal.
F Now it appears from the certified copy of the petition
for maintenance dated 31.8.1984, that the then age of the
claimant Sandhu Priya Pal was 8 years and of the other
two was 5 years being the twin of their parents. Therefore
in 1997 all of them were in the age of 18 or more than 18
G years. Hence, as per the order in execution and the
provision of law on this point the claimants are not entitled
to maintenance after attaining the age of majority i.e. 18
years and, therefore, the objection sustained and the
instant case stands dismissed."
H
AMARENDRA KUMAR PAUL v. MAYA PAUL & ORS. 385
[S.S. SINHA, J.]
.........
5. However, despite the same, the 1st respondent filed A
another Execution Case bearing No.1 a6 of 2005 before the
learned Judicial Magistrate Second Court, Berhampore
claiming maintenance @ Rs.450/- per month on and from
February 1993 to May 2004. By reason of an order dated 15th
February 2006, the learned Magistrate Second Court, B
Be~hampore, directed as under :
"Now, in the present case, the Petitioner has filed an
affidavit dated 6.5.05, wherein she admitted that her son
Sandhu Prakash Pal has become major on 11.5.97. That
her daughter Sandhu Priya Pal has been married on
c
11.5.2003 and that Sandhu Priti Pal is still unmarried. The
copy of this affidavit has duly been served to the learned
advocate for the OP but he did not file any objection,
thereby admitting its content. Moreover, at the time of
,.. hearing the learned advocate for the OP admits the D
contents of the affidavit.
Hence, I am to hold that the son is entitled to
maintenance till attaining majority as per provision of
Clause (b), sub section (i), Section 125 Cr. P.C. and that E
the daughters are entitled to maintenance till marriage.
However, the application for the period from May,
1997 to April 1998 has been dismissed by this Court by
order dated 9.6.1999 passed in Misc. Ex. No.378 of 1998.
F
Hence, I am not inclined to allow maintenance to the
Petitioner from May 1997 to April, 1998 as the same was
earlier rejected by this Court.
Hence, it is ORDERED that Bandhu Prakash Pal is
.. entitled to get maintenance till 11.5.1997, Bandhu Priya G
Pal is entitled to get maintenance till 11.5.2003 i.e., the
date of her marriage and Sandhu Priti Pal is entitled to get
maintenance till May, 2004, as claimed in the petition. All
the three children are entitled to get maintenance since
H
386 SUPREME COURT REPORTS [2009] 12 S.C.R.
A February, 1993. The period from May, 1997 to April, 1998, ~--
is to be excluded in case of both the daughters of the
Petitioner."
6. Appellant filed a revision application thereagainst which
was dismissed stating :
B
"Having considered the rival submissions of the
learned advocates appearing for the parties, I am of the
opinion that the submissions made by Mr. Monda! has
sufficient force and he has very correctly submitted that the
c question of limitation for filing the execution case does not
at all arise in the instant case in view of the stay order
passed by the learned Sessions Court and then by this
Hon'ble Court. Thus, accordingly, there was no bar in
entertaining the application for realization of arrear
D maintenance. This application has no merits and stands
dismissed. ..
I further, make it clear that while computing the
amount of arrear maintenance, the learned Judge must
take into account, if any amount has been paid towards
E
the maintenance of the opposite party no.1 by the
Petitioner for the period in question and for that purpose
the Petitioner shall be given reasonable opportunity to
establish the same and if the learned judge finally found
that any amount has been paid by the Petitioner for the
F said period, the same is to be adjusted against payment
of arrear maintenance."
7. Mr. R.K. Gupta, the learned counsel appearing on behalf
of the appellant would submit that the execution application for
G the purpose of executing the order granting maintenance for the ..
minor children was not maintainable as they had attained
majority. It was furthermore contended that the period of
limitation prescribed for filing an execution application for
executing an order under Section 125 of the Code being one
H
AMARENDRA KUMAR PAUL v. MAYA PAUL & ORS. 387
[S.S. SINHA, J.]
..;-..._ year, the impugned judgment cannot be sustained . A
8. The learned counsel appearing on behalf of the
respondents, however, would support the judgment of the High
Court.
9. The learned Chief Judicial Magistrate, as noticed S
hereinbefore, in his judgment dated 09th June 1999, has
categorically arrived at a finding of fact that in the year 1997,
all the three children of the 1st respondent had attained majority.
Sandhu Priya Paul was 8 years of age on 31st August 1984.
She, thus, attained majority on or about 31st August 1994 c
whereas Sandhu Priti Paul and Sandhu Prak~sh Paul, who
were twins, being aged 5 years on the said date, became
major in 1997.
10. Sub-section (1) of Section 125 of the Code reads as D
:> under:
"125. Order for maintenance of wives, children and
patents,-(1) If any person having sufficient means neglects
)
or refuses to maintain-
E
(a) his wife, unable to maintain herself, or
•, (b) his legitimate or illegitimate minor child, whether
married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a F
married daughter) who has attained majority, where
such child is, by reason of any physical or mental
abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or G
....
herself,
-..
:< a Magistrate of the first class may, upon proof of such
neglect or refusal, order such person to make a monthly
allowance for the maintenance of his wife or such child,
H
388 SUPREME COURT REPORTS (2009] 12 S.C.R.
...,_
A father or mother, at such monthly rate, as such magistrate
thinks fit, and to pay the same to such person as the
Magistrate may from time to time direct:
Provided that the Magistrate may order the father of
a minor female child referred to in clause {b) to make such
B
allowance, until she attains her majority, if the Magistrate
is satisfied that the husband of such minor female child, if
married, is not possessed of sufficient means.
Provided further that the Magistrate may, during the
c pendency of the proceeding regarding monthly allowance
for the maintenance under this sub-section, order such
person to make a monthly allowance for the interim
maintenance of his wife or such child, father or mother, and
the expenses of such proceeding which the Magistrate
D considers reasonable, and to pay the same to such person
~
as the Magistrate may from time to time direct:
Provided also that an application for the monthly
allowance for the interim maintenance and expenses for (
proceeding under the second proviso shall, as far as
E
possible, be disposed of within sixty days from the date
of the service of notice of the application to such person.
Explanation.-For the purposes of this Chapter.-
F (a) "minor" means a person who, under the provisions
of the Indian Majority Act, 1875 (9 of 1875) is
deemed not to have attained his majority;
(b) "wife" includes a woman who has been divorced by,
or has obtained a divorce from, her husband and
G has not remarried." "
11. An application for grant of maintenance, therefore, is .-
maintainable, so far as the children are concerned, till they had
not attained majority. As a cause of action for grant of
H
AMARENDRA KUMAR PAUL v. MAYA PAUL & ORS. 389
,)
[S.B. SINHA, J.]
__..._
maintenance would arise only in the event a person having A
sufficient means, neglects or refuses to maintain his legitimate
or illegitimate minor child unable to maintain itself. Once,
therefore, the children attained majority, tl1e said provision
would cease to apply to their cases
B
12. Sub-section (3) of Section 125 of the Code provides
for ;:i period of limitation, stating :
~ "(3) If any person so ordered fails without sufficient
cause to comply with the order, any such Magistrate may,
for every breach of the order, issue a warrant for levying
c
the amount due in the manner provided for levying fines,
and may sentence such person, for the whole, or any port
of each month's allowance for the maintenance or the
interim maintenance and expenses of proceeding, as the
case may be, remaining unpaid after the execution of the D
)<
warrant, to imprisonmrnt for a term which may extend to
one month or until payment if sooner made :
Provided that no warrant shall be issued for the
recovery of any amount due under this section unless E
application be made to the Court to levy such amount
within a period of one year from the date on which it
'./.,
became due:
Provided further that if such person offers to maintain
his wife on condition of her living with him, and she refuses
F
to live with him, such Magistrate may consider any
grounds of refusal stated by her, and may make an order
under this section notwithstanding such offer, if he is
satisfied that there is just ground for so doing.
G
Explanatiori'.-lf a husband has contracted marriage
with another woman or keeps a mistress, it shall be
considered to be just ground for his wife's refusal to live
with him."
H
390 SUPREME COURT REPORTS [2009] 12 S.C.R.
A 13. A Division Bench of this Court in the case of Shantha
@ Ushadevi & Anr. v. B.G. Shivananjappa (2005) 4 SCC 468,
--
held:
"7. It is true that the amount of maintenance became due
by virtue of the Magistrate's order passed on 20-1-1993
B
and in order to seek recovery of the amount due by
issuance of warrant, application shall be made within a
period of one year from the date the amount became due.
In the present case, the application, namely, Crl.Misc.
Petition No.47 of 1993 was filed well within one year. As
no amount was paid even after the disposal of the matter
by the High Court, the appellant filed IA No.1 in
Crl.Misc.Petition No.47 of 1993 wherein the arrears due
up to that date were calculated and sought recovery of that
amount under Section 125(3). Thus, IA No.1 was filed
D even when Crl.Misc.Petition No.47 of 1993 was pending
and no action to issue warrant was taken in that
proceeding. Crl.Misc.Petition No.47 of 1993 which was
filed within one year from the date the amount became due
was kept alive and it was pending throughout. The purpose
E of filing IA on 16-6-1998 was only to mention the amount
due up to date. The fact that the additional amount was
specified in the IA does not mean that the application for
execution of the order by issuing a warrant under Section
125(3) was a fresh application made for the first time. As
F already noticed, the main petition filed in the year 1993
was pending and kept alive and the filing of subsequent
IA in 1998 was only to specify the exact amount which
accrued due up to that date. Such application is only
supplementary or incidental to the petition already filed in
G 1993 admittedly within the period of limitation. The fact that
only a sum of Rs.5365 representing the arrears of eight
months was mentioned 'the(ein does not curtail the scope
of criminal miscellaneous petition filed in 1993 more so
when no action was taken thereon and it remained
H pending."
AMARENDRA KUMAR PAUL v. MAYA PAUL & ORS. 391
[S.S. SINHA, J.]
14. A period of limitation is provided for in terms of the A
aforementioned provision. However, in a case of this nature,
Section 15 of the Limitation Act would apply which reads as
under:
"15. Exclusion of time in certain other cases.-(1) In B
computing the period of limitation of any suit or application
for the execution of a decree, the institution or execution
of which has been stayed by injunction or order, the time
of the continuance of the injunction or order, the day on
which it was issued or made, and the day on which it was c
withdrawn, shall be excluded.
(2) In computing the period of limitation for any suit
of which notice has been given, or for which the previous
consent or sanction of the Government or any other
authority is required, in accordance with the requirements D
of any law for the time being in force, the period of such
notice or, as the case may be, the time required for
obtaining such consent or sanction shall be excluded.
Exp/anation.-1.n excluding the tiyie required for E
obtaining the consent or sanction of the Government or any
other authority, the date on which the application was made
for obtaining the consent or sanction and the date of receipt
of the order of the Government or other authority shall both
be counted. F
(3) In computing the period of limitation for any suit
or application for execution of a decree by any receiver
or interim receiver appointed in proceedings for the
adjudication of a person as an insolvent or by any
..... liquidator or provisional liquigator appointed in G
proceedings for the winding up of a company, the period
beginning with the date of institution of such proceeding
and ending with the expiry of three months from the date
of appointment of such receiver or liquidator, as the case
H
392 SUPREME COURT REPORTS [2009] 12 S.C.R.
A may be, shall be excluded.
(4) In computing the period of limitation for a suit for
possession by a purchaser at a sale in execution of a
·decree, the time during which a proceeding to set aside
the sale has been prosecuted shall be excluded.
B
(5) In computing the period of limitation for any suit
the time during which the defendant has been absent from
India and from the territories outside India under the
administration of the Central Government, shall be
c excluded."
15. In fact, the order of stay had been granted by the
revisional court as also by the High Court in the aforementioned
proceedings. The limitation for filing application for execution
D would be computed upon excluding the period during which the
order of stay was operating. • -
16. We may place on record that the notice was issued
only on the question s to whether the amount of maintenance
could have been directed to be recovered despite the fact that
E the children had attained majority.
17. It appears that the said question was formulated on the
basis of the submission made at the Bar. We have dealt with
all the questions raised before us. In view of the findings arrived
F at by us, such a question does not arise for consideration.
18. It is clear from the order of the learned Magistrate that
no order of maintenance was passed in favour of the children
after they attained majority. In that view of the matter, the
question of recovery of any amount from the petitioners towards
G the maintenance granted to the children after they had attained
"
majority does not arise. In this case the direction has been
issued to recover the amount of maintenance only for the period ..,.
prior to the sons' attaining majority and the daughters getting
married and hence no interference with the impugned judgment,
H
AMARENDRA KUMAR PAUL v. MAYA PAUL & ORS. 393
[S.B. SINHA, J.]
in this behalf, is called for. A
19. In any view of the matter, it, in our opinion, is not a fit
case wherein we should exercise our discretionary jurisdiction
even it be assumed that the Execution case was filed only by
the respondent.
B
20. For the reasons aforementioned, this appeal is
dismissed. However, in the facts and circumstances of this
case, there shall be no order as to costs.
D.G . Appeal dismissed. c
...
'.
•,
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "Section 125 CrPC"Sign in to search