Amrendra Kumar Paul vs Maya Paul & Ors

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 3 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 stating :

5. 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 under :

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

Explanation.-In excluding the time required for 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.

(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 excluded."

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 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 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 14 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.

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.

August 4, 2009.