Law: Criminal Procedure Code (V of 1898)

Section: 488(3)

  Case Details (a) Criminal Procedure Code (V of 1898), S. 488(3) proviso 2 Applicant prevented by act of Court from enforcing order of maintenance Can recover arrears for more than a period of one year Maxim : Actus curiae neminem gravabit (an act of the Court shall prejudice no man). In an application under section 488 of the Criminal Procedure Code, 1898 the husband after paying to his wife maintenance allowance for his three children at the rate of Rs. 15 p.m. each from 13 10 55 to 12 10 56 made an application to the Guardian Judge under section 25 of the Guardians and Wards Act, 1890 for the custody of the children and obtained an ex pane order on 28 11 56. Against this order the wife filed an appeal to the High Court and while the appeal was pending she made another application to the Magistrate on 3 4 1957 for realisation of arrears of maintenance from 13 10 56 to 3 4 57. The husband appeared before the Magistrate and raised the objection that in view of the order of the Guardian Judge as well as by an order of the High Court dated 21 3 57, by which the wife's petition for staying the ex parte order of Guardian Judge was dismissed, he was not liable to pay the maintenance allowance. The Magistrate holding that maintenance order under the circumstances could not be executed consigned to the record the application of the wife. On 4 5 1959 the High Court accepted the appeal of the applicant. After the acceptance of the appeal the wife presented another application to the Magistrate on 3 6 1959 for realisation of the maintenance allowance from 13 10 56 to 12 5 1959 and thereafter from month to month till the decision of the application. Relying on the second proviso to subsection (3) of section 488 of the Criminal Procedure Code, 1898, on behalf of the husband, it was urged that the applicant was not entitled to recover arrears of maintenance allowance for more than a period of 12 months prior to the date of the last application which had been filed on 3 6 59. Held, the wife was entitled to realise the arrears of maintenance allowance for the period from 13 10 1956 to 3 4 1957 when her application had been consigned to the record room by the…