Mala Kumari State of U.P. and Another v. .....Revisionist(s) .....Opposite Party(s)

#2. Further, the explanation furnished by the Presiding Officer, namely Sri Vimal Prakash Arya, Additional Principal Judge, 1st Family Court, Jaunpur, is found to be unsatisfactory, inasmuch as this Court, in its order dated 13.04.2026 (paragraph no. 19), had specifically directed him to submit his explanation as to whether the amount of maintenance granted vide order dated 04.03.2023 has been closed finally and whether wife has to claim maintenance amount again and again in future by moving an application and for every time she has to move an application for execution of the order dated 04.03.2023.

#3. It is further noted that the application dated 09.04.2025 filed by the revisionist, whereby payment of continuous maintenance from the month of April, 2025 onwards was sought to be ensured from Opposite Party No. 2, has also not been properly addressed.

#4. Upon perusal of the explanation submitted by the Presiding Officer, this Court finds that no clear-cut reply has been given, and the Presiding Officer has taken an erroneous plea of the proviso to Section 144(3) of the BNSS (corresponding to the proviso to Section 125(3) Cr.P.C.), though the law laid down by Hon'ble the Supreme Court and this Court is otherwise.

#5. This Court in Mohammad Usman Alias Bhai Lal Vs. State of U.P. and 6 Others, 2021 SCC OnLine All 640, relying upon the decision of Hon'ble the Supreme Court in Shanta Alias Ushadevi and another vs. B.G. Shivananjapp, (2005) 4 SCC 468 has observed that it is unreasonable to insist on filing successive applications. The relevant 2 CRLR No. 1552 of 2026 observation made in the judgment is quoted herein below for ready reference :- "15. In Shantha Alias Ushadevi And Another v. B. G. Shivananjappa, (2005) 4 SCC 468, it was stated that Section 125 of the Code is a measure of social legislation and accordingly, is to be construed liberally for the welfare and benefit of the wife and the children. In the context of the provisions contained under Section 125(3), first proviso, prescribing limitation of one year to seek recovery of arrears of maintenance, it was observed that the liability to pay the maintenance as per the orders passed under Section 125(1) being a continuing liability, it was unreasonable to insist on filing successive applications. The relevant observations made in the judgement are as follows:- "8. ... Section 125 Cr.P.C. is a measure of social legislation and it has to be construed liberally for the welfare and benefit of the wife and daughter. It is unreasonable to insist on filing successive applications when the liability to pay the maintenance as per the order passed under Section 125(1) is a continuing liability."

#16. The provisions contained under Section 125(3) of the Code and the first proviso thereto again came up for consideration in Poongodi And Another v. Thangavel, (2013) 10 SCC 618, and it was held that the first proviso to Section 125(3) does not create any bar or fetter on claiming arrears of maintenance and it neither extinguishes nor limits entitlement to arrears of maintenance. It was stated thus:- "4. A reading of the order dated 21.4.2004 passed by the High Court would go to show that the proviso to Section 125(3) CrPC has been construed by the High Court to be a fetter on the entitlement of the claimants to receive arrears of maintenance beyond a period of one year preceding the date of filing of the application under Section 125(3) CrPC. Having considered the said provision of the Code we do not find that the same creates a bar or in any way affects the entitlement of a claimant to arrears of maintenance. What the proviso contemplates is that the procedure for recovery of maintenance under Section 125(3) CrPC, namely, by 3 CRLR No. 1552 of 2026 construing the same to be a levy of a fine and the detention of the defaulter in custody would not be available to a claimant who had slept over his/her rights and has not approached the Court within a period of one year commencing from the date on which the entitlement to receive maintenance has accrued. However, in such a situation the ordinary remedy to recover the amount of maintenance, namely, a civil action would still be available."

#32. Taking a similar view it was held in Mackinnon Mackenzie & Co. Ltd vs Audrey D'Costa & Anr., (1987) 2 SCC 469, that the proviso does not travel beyond the provision to which it is a proviso and its ambit cannot be stretched beyond the main provision.

#8. The ambit and scope of the powers to be exercised under Section 125(3) of the Code and the question as to whether the limitation prescribed under proviso to Section 125(3) would be applicable in respect of proceedings under Section 128 of consideration in the present case. the Code,

#38. Applying the aforesaid principles of statutory construction, the proviso to sub-section (3) of Section 125 would have to be held to be confined to the section which precedes it. The limitation of one year provided in terms thereof would have to be read in relation to issuance of a warrant for recovery of an amount due in terms of an order of maintenance passed under sub-section (1) of Section 125. The aforesaid limitation of one year under the proviso to Section 125 (3) cannot be held to travel beyond or stretch to an extent so as to being within its ambit the powers relating to enforcement of an order of maintenance under Section 128 of the Code.

#39. It may, therefore, be deduced that the scope of Section 125(3) and 128 of the Code being different and the first proviso to Section 125(3) creating an interdict only on issuance of warrant for recovery under Section 125(3), the said period of limitation of one year cannot be held to create a fetter on the right to claim enforcement under Section 128.

#40. The proceeding for enforcement of the order under Section 128, therefore, cannot be assailed on the ground that the same would be barred by limitation as provided under the proviso to Section 125(3) of the Code." emphasis supplied

#6. In view of the aforesaid legal position, Sri Vimal Prakash Arya, 4 CRLR No. 1552 of 2026 Additional Principal Judge, 1st Family Court, Jaunpur, is directed to submit a clear and specific explanation addressing the issues raised by this Court in respect of successive applications to execute the order of maintenance as continuous liability.

#7. The Chief Judicial Magistrate, Jaunpur, is also directed to submit a report as to whether the order dated 13.04.2026 as well as notice has been communicated to the Opposite Party No. 2 or not.

#8. List this case as fresh on 08.05.2026 for further hearing. April 28, 2026 DKS (Praveen Kumar Giri,J.)