IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 02.02.2010

CORAM:

THE HONOURABLE MR.JUSTICE S.NAGAMUTHU

Criminal Revision Case No.1237 of 2009
and
M.P.No.1 of 2009


P.Vaithi .. Petitioner

Vs.

1. Kanagavalli

2. Tamil Selvai .. Respond
ents

Prayer : Criminal Revision Case is filed
 und
er Section 39
7 read
 with 401 of Cr.P.C. to set asid
e the ord
er of the
learned
 Jud
ge of the Family Court, Salem, mad
e in C.M.P.No.146/2008 in M.C.No.29
/2004 d
ated
 22.10.2009

For Petitioner :: Mr.S.AyyathuraiFor Respond
ents :: Mr.R.Nalliyappan

ORDER

In M.C.No.29
/2004, the Family Court, Salem, d
irected
 the petitioner to pay a sum of Rs.750/- p.m. to the 1st
respond
ent and
 Rs.500/- p.m. to the 2nd
 respond
ent toward
s their maintenance und
er Section 125 of Cr.P.C.
The said
 ord
er, d
ated
 17.11.2006 has become final. However, the said
 amount was not paid
. Seeking to
enforce the same, the respond
ents filed
 C.M.P.No.146/2008 before the lower court und
er Section 128 of
Cr.P.C. By an ord
er d
ated
 22.10.2009
, the Family Court d
irected
 the petitioner to pay the amount and
 also
cautioned
 the petitioner that an ord
er of attachment would
 be passed
 in the event of failure of the petitioner
to pay the amount. The petitioner is aggrieved
 by the said
 ord
er. Thus, he is before this Court with this
revision.

The only contention raised
 by the learned
 Counsel for the petitioner is that such a petition for enforcement
could
 be filed
 only in respect of arrears of maintenance for a period
 of one year. He would
 further submit that
since, in this case, C.M.P.No.146/2008 was filed
 covering a period
 exceed
ing one year, the court ought to have
d
ismissed
 the application as barred
 by limitation. To substantiate his contention, the learned
 counsel relies on
jud
gments in Yoosuf Rawther v. Ashref and
 another reported
 in 19
9
7 Crl.L.J.4313 and
 Jagannath Patra v.
Purnamashi Saraf and
 another reported
 in AIR 19
68 Orissa 35.

The learned
 Counsel for the respond
ents would
 however oppose this petition. Accord
ing to him, the limitation
provid
ed
 und
er Section 125 (3) is not applicable to the facts of the present case.

I have consid
ered
 the rival submissions mad
e on either sid
e and
 also perused
 the record
s.

At the outset, I have to state that a proceed
ing und
er Section 125 Cr.P.C. is quasi civil and
 quasi criminal. In so
far as it d
ecid
es the civil rights of the parties to claim maintenance, it is civil in nature. When the ord
er is not
obeyed
 by the person against whom the same has been mad
e, then the court is empowered
 to impose a
punishment of imprisonment of one month for each breach. To that extent, the proceed
ing is criminal. To put
it comprehensively, I have to state that the proceed
ing is quasi civil and
 quasi criminal.
After an ord
er is passed
 d
irecting to pay maintenance, the party in whose favour such an ord
er has been
passed
 has got two options to work out to recover the arrears from the other. He can choose to approach the
court und
er Section 125(3) Cr.P.C. requesting the court to punish the d
efaulter by imposing appropriate
imprisonment. On the other hand
, he can also approach the court und
er Section 128 of Cr.P.C. seeking to
recover the amount d
ue und
er the maintenance ord
er. A comparison of Sections 125(3) and
 128 of Cr.P.C.
would
 keep things beyond
 any pale of d
oubt that in so far as the proceed
ing und
er Section 125(3) is
concerned
, the statuete has prescribed
 a period
 of limitation of one year, whereas in respect of a proceed
ing
und
er Section 128 of Cr.P.C., there is no limitation provid
ed
 at all. This is because, while exercising the power
und
er Section 125(3) Cr.P.C. the action being essentially a criminal in nature, resulting in punishment of
imprisonment, the legislature has perhaps, thought it fit to provid
e such a period
 of limitation of one year to
file a petition. Since, while enforcing an ord
er und
er Section 128 of Cr.P.C. for recovery of the amount, there is
no question of straight away imposing such a punishment of imprisonment and
 that may be the reason for the
legislature not to provid
e for such a period
 of limitation. Therefore, to put it in nutshell, for initiating a
proceed
ing for enforcing an ord
er by invoking Section 128 of Cr.P.C., absolutely, I find
 no provision provid
ing
for limitation as it is provid
ed
 in respect of proceed
ings und
er Section 125(3) of Cr.P.C. In the case on hand
, the
petition was filed
 und
er Section 128 of Cr.P.C. Though it was filed
 beyond
 one year, in my consid
ered
 opinion,
the lower court was right in entertaining the same as the same is not barred
 by any limitation.

Now the jud
gment relied
 on by the learned
 counsel for the petitioner in Yoosuf Rawther v. Ashref and
 another
reported
 in 19
9
7 Crl.L.J.4313 as cited
 supra requires to be consid
ered
. In that jud
gment, the Court had

occasion to consid
er the period
 of limitation provid
ed
 only in respect of a petition filed
 und
er Section 125(3)
of Cr.P.C. The Court was not inclined
 to give any find
ings in respect of the proceed
ings und
er Section 128
Cr.P.C. Therefore, the views expressed
 in the said
 jud
gment have no relevance to the Section 128 of Cr.P.C. at
all. For similar reason, the jud
gment inf Jagannath Patra v. Purnamashi Saraf and
 another reported
 in AIR 19
68
Orissa 35 also d
oes not come to the help of the petitioner. In view of all the above, the revision fails and
 the
same is accord
ingly d
ismissed
. Consequently, connected
 Miscellaneous Petition is also closed
. I clarify that the
petitioner is at liberty to enforce the maintenance ord
er without being bound
 by the limitation provid
ed

und
er Section 125(3) of Cr.P.C.

02.02.2010

S.NAGAMUTHU,J.

Crl.R.C. No.1237/2009
 02.02.2010

Crl.R.C.No.53 of 2010 Dt.19
.01.2010 01.02.2007