P. Vaithi vs. Kanagavalli [2010 (1) LW (Crl.) 574]: Madras High Court
Though limitation period for recovery of maintenance under section 125(3) of CrPC is one year, section 128 does not prescribe any such limitation
6. After an order is passed directing to pay
maintenance, the party in whose favour such an order has been passed has got
two options to work out to recover the arrears from the other. He can choose to
approach the court under Section 125(3) Cr.P.C. requesting the court to punish
the defaulter by imposing appropriate imprisonment. On the other hand, he can
also approach the court under Section 128 of Cr.P.C. seeking to recover the
amount due under the maintenance order. A comparison of Sections 125(3) and 128
of Cr.P.C. would keep things beyond any pale of doubt that in so far as the
proceeding under Section 125(3) is concerned, the statute has prescribed a
period of limitation of one year, whereas in respect of a proceeding under
Section 128 of Cr.P.C., there is no limitation provided at all. This is
because, while exercising the power under 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 provide such a
period of limitation of one year to file a petition. Since, while enforcing an
order under 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 provide for such a period of
limitation. Therefore, to put it in nutshell, for initiating a proceeding for
enforcing an order by invoking Section 128 of Cr.P.C., absolutely, I find no
provision providing for limitation as it is provided in respect of proceedings
under Section 125(3) of Cr.P.C. In the case on hand, the petition was filed
under Section 128 of Cr.P.C. Though it was filed beyond one year, in my
considered opinion, the lower court was right in entertaining the same as the
same is not barred by any limitation.