Case: Amrendra Kumar Paul Vs. Maya Paul

3. The relationship between the parties is not in dispute. The 1st respondent is the wife of the appellant herein. They 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., Bandhu Priya Paul and Bandhu Priti Paul as also her minor son, viz., Bandhu Prakash Paul from February 1983. Pursuant thereto or in furtherance 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.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 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 application being C.R.R.No.1852 of 1997 filed by the appellant by an order dated 12th March 2004 statingI find, therefore, that there is no reason whatsoever to interfere with the impugned order of the learned Additional Sessions Judge, Murshidabad dated 18.2.1997 in Criminal Motion No.285/94 and the same is affirmed. This revisional application has no merits and is, therefore, dismissed.In the meantime, in the year 1998, an application for 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 relevant portion of the said order dated 09th June 1999 runs as underappears 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 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 Bandhu Prokash Pal.Now it appears from the certified copy of the petition for maintenance dated 31.8.1984, that the then age of the claimant Bandhu 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 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.However, despite the same, the 1st respondent filed another Execution Case bearing No.186 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, Berhampore, directed as underin the present case, the Petitioner has filed an affidavit dated 6.5.05, wherein she admitted that her son Bandhu Prakash Pal has become major on 11.5.97. That her daughter Bandhu Priya Pal has been married on 11.5.2003 and that Bandhu 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 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 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. 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 Pal is entitled to get maintenance till 11.5.2003 i.e., the date of her marriage and Bandhu 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 February, 1993. The period from May, 1997 to April, 1998, is to be excluded in case of both the daughters of the Petitioner.Respondent no.1 filed a revision application thereagainst which was dismissed statingconsidered the rival submissions of the learned advocates appearing for the parties, I am of the opinion that the submissions made by Mr. Mondal has sufficient force and he has very correctly submitted that the 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 Honble Court. Thus, accordingly, there was no bar in entertaining the application for realization of arrear 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 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 said period, the same is to be adjusted against payment of arrear

Reasoning: 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 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 children attained majority, the said provision would cease to apply to their cases.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 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 towhether the amount of maintenance could have been directed to be recovered despite the fact that the children had attained majority.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 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 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 inference with the impugned judgment, in this behalf, is called for.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.