Orissa High Court
Surekha Mrudangia vs Ramahari Mrudangia on 7 August, 1989
Equivalent citations: 1990CRILJ639
ORDER K.P. Mohapatra, J.
1. The interesting point for consideration is whether future salary of a husband can be attached for recovery of arrears of maintenance by the wife in accordance with the procedure laid down in Section 125(3) read with Section 421(1)(a) of the Code of Criminal Procedure ('Code' for short).
2. Facts are simple and undisputed, the petitioner wife obtained an order of maintenance against the opposite party-husband under Section 125 of the Code at the rate of Rs. 125/- per month. She filed a petition (registered as Misc. Case No. 87 of 1985) for attachment of the salary of the opposite party. The petition was allowed by the learned Sub-Divisional Judicial Magistrate, Berhampur and a writ attaching a sum of Rs. 200/- from the salary of the opposite party per month was issued for execution by the Tahasildar, Berhampur under whom the opposite party was serving as a Mohorir. In the meanwhile, the opposite party filed Title Suit No. 77 of 1988 before the Subordinate Judge, Berhampur, the facts of which are unknown, but probably it is a matrimonial case between the parties and in view of pendency of the suit, he prayed for withdrawal of the writ of attachment. The learned Sub-Divisional Judicial Magistrate having rejected the petition on the ground that execution of an order of maintenance passed under Section 125 of the Code cannot be stopped because of pendency of a civil suit, the opposite party went up in revision to the Court of Session, Berhampur. The learned Additional Sessions Judge took the view that Section 125(3) did not provide for attachment of salary and so the petitioner should have taken recourse to Section 421(1)(a) of the Code. But without considering that the proceeding itself conforms to Section 421(1)(a) of the Code, he allowed the revision. The petitioner, therefore, approached this Court challenging the order of the learned Additional Sessions Judge.
3. Sub-section (3) of Section 125 of the Code for as it is relevant to the case is quoted below:
(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made."
Arrear maintenance is thus recoverable in the same manner provided for recovery of fines levied in a criminal case. Fine levied is recovered according to Section 421(1)(a) of the Code and is quoted below so far it relates to the case in hand :
"421. Warrant for levy of fine :-- (1) When an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may --
(a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender;
xx xx xx xx xx"
Identical provisions existed in Sections 488(3) and 386(1)(a) of the old Code. The provisions of Section 488(3) and 386(1)(a) of the old Code came up for interpretation before a Division Bench of the Rajasthan High Court as reported in AIR 1955 Raj 61: (1955 Cri LJ 621) Baldevi v. Ramnath. Wanchoo, C.J. (as His Lordship then was) held as follows:--
"Section 488(3) provides for execution of order of maintenance, and under it if any person fails to comply with the order, any Magistrate may, for every breach of order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines. There is also a provision for sentencing the man to imprisonment for a term extending up to one month or until payment is made.
The wife in whose favour the maintenance order is passed can ask for realisation under Section 488(3) of one month's arrears which are due to her. She cannot possibly ask for an order of attachment under Section 488(3) for moneys due to her as maintenance, which have not accrued to her up to that date.
So far as the words "movable property" in Clause (a) of Section 386(1), Criminal P.C. are concerned, they refer to tangible movable property which can be seized, and which must be belonging to the offender. If it is movable property of other description, the remedy is under Clause (b) by civil process. The very fact that execution by civil process is allowed in the case of movable property also shows that there is difference in the meaning of the words 'movable property' as used in Clause (a) and as used in Clause (b).
The wife therefore cannot ask the magistrate to attach the future salary of her husband as and when it becomes due, for two reasons. In the first place, future salary is not tangible corporeal property available for seizure. In the second place, it does not belong to the husband because he cannot be said to have earned his future salary."
(quoted from headnote) A similar view was taken in AIR 1956 Cal 135 : 1956 Cri LJ 527, Rajendranath Ghose v. Brojabala Ghose, 1965 (2) Cri LJ 293, The State v. Doraiswamy, and 1974 Cri LJ 171, Sm. Renuka Paul v. Dhirendra Nath Paul.
In 1988 Cri LJ 638, Gobind Sahai v. Prem Devi, without making reference to the case of Baldevi v. Ramnath 1955 Cri LJ 621 (Raj) (supra) or any decision of any other High Court, a learned Judge of the Rajasthan High Court took the view that unless the husband defaults without sufficient cause to comply with the order of maintenance, the Magistrate does not get jurisdiction to issue warrant for levying the amount due in the manner provided for levying fines. It may so happen that the husband whose salary attached for a particular month may not commit default. Therefore, assuming that the husband will commit default the next month's salary cannot be attached in advance.
Contrary views have been expressed by the Andhra Pradesh High Court in two decisions reported in 1983 Cri LJ 479, Ahmed Pasha v. Wajid Unissa, and 1986 Cri LJ 1846, in Re Yerasuri Lakshminarayana Murthy. The learned Judge have expressed that the provisions of Section 125 of the Code are designed to provide maintenance to the wife who is unable to support herself. The wife cannot be placed in the position more disadvantageous than a money lender or a Bank who has got the right under Section 60, C.P.C. to attach the salary of an official to the extent indicated therein in execution of a money decree. The expression 'movable property' appearing in Section 125(3) of the Code should be given a wide interpretation. Therefore,. according to the learned Judges, in case of default by the husband to pay arrear and current maintenance, salary, which would include salary to be earned at the end of the month, can be attached under Section 421(1)(a) of the Code.
A learned Judge of the Karnataka High Court in a case reported in 1984 (2) Kar LJ 213 : (1985 Cri LJ 707), Rudraiah K.V. v. Muddagangamma B.E., made reference to the cases of Baldevi v. Ramnath (supra), Ahmed Pasha v. Wajid Unissa (supra) and 1981 (1) Cri LJ 682, Ali Khan v. Hajrambi, and took an ameliorative and practical view and in my opinion rightly so when he observed as follows:--
"But the main grievance of the counsel for the petitioner appears to be that future salary is not tangible corporeal property belonging to the person concerned when warrant for levy of the amount by attachment is issued and therefore Clause (a) is not applicable.
I am unable to agree with him, and, with due respect, the decision in Baldevi. The warrant issued under Clause (a) becomes effective the moment the salary accrued due to the person concerned or when that money becomes payable to him and until then the direction contained in the attachment warrant remains dormant. In this view of the matter, it cannot be said that the salary payable to an employee is not amenable for a levy warrant issued under Clause (a) referred to above."
4. It is difficult to differ from the views expressed by the Rajasthan, Calcutta and Mysore High Courts to the effect that future salary is not tangible corporeal property available for seizure. Only when the salary becomes payable and takes the shape of tangible corporeal property, it can be attached for realisation' of arrear as well as current maintenance according to the provisions of Section 125(3) read with Section 421(1)(a) of the Code.
The view of the Rajasthan High Court expressed in the case of Govind Sahai v. Prem Devi (1988 Cri LJ 638 (Raj) (supra) also appears to be reasonable, because unless the husband makes default without sufficient cause to comply with the order of maintenance, the Magistrate does not acquire jurisdiction to issue warrant of attachment of the salary after it has become due.
The learned Judges of the Andhra Pradesh High Court did not accept the principle laid down-in the aforesaid decisions. They did not discuss the legality and propriety of the view that future salary is not tangible corporeal property. They were swayed away more with the consideration that Section 125 is a beneficial provision which is designed to save a deserted wife from destitution. So, unless future salary of the erring husband, who has been directed to pay maintenance and who commits default, is attached in the analogy of Section 60 C.P.C., the intent and purpose of the beneficial legislation shall not be served. The view expressed undoubtedly is progressive revealing the judicial intention for doing justice so as to save a deserted wife from going to the streets.
I am very much appreciative of the practical view taken by N. D. Venkatesh, J. of the Karnataka High Court in the case of Rudraiah K.V. v. Muddagangamma D. E. (1985 Cri LJ 707) (supra). After thorough discussion of the earlier views, he has taken a middle course which does not offend the earlier views of the Rajasthan, Calcutta and Mysore High Courts, nor the other view expressed by the Andhra Pradesh High Court. According to the learned Judge, once the court has issued writ of attachment of salary in default of payment of the arrear or current maintenance without sufficient cause, the salary when becomes due or any part thereof shall be liable for attachment. If during any particular month maintenance is paid, the writ of attachment shall remain dormant. In any case, for default, until the salary becomes payable to the husband at the end of the month, the writ of attachment of salary shall continue to remain dormant so as to revive at the end of the month. Unless such a practical view is taken deserted wives and children shall be rendered to starvation and destitution. It is common experience in courts that in a sizable number of cases under Section 125 of the Code, the deserted wives have to depend upon the salary of the erring husbands for maintenance. Unless a middle course, as has been commended by the Karnataka High Court, is adopted and the erring husbands are not allowed to remain scot-free on the principle that future salary is not liable for attachment; a great injustice will be done to the deserted wives and the children who shall be driven to hunger and destitution. I am, therefore, in agreement with the views expressed in the case of Rudraiah K.V. v. Muddagangamma B.E. (supra) and hold that for default of payment of maintenance without sufficient cause, salary of the husband or part thereof shall be liable for attachment in accordance with law when the same becomes due at the end of the month and till then the writ of attachment which has once been issued by the Magistrate shall remain dormant so as to revive at the appropriate time.
5. Before parting with the case, I would like to observe that it would be worthwhile to amend the provisions of Sections 125 and 421 of the Code in such a manner that it shall not be difficult for the deserted wives and the children to recover arrear and current maintenance, because the existing procedure is cumbersome and unsatisfactory and gives undue privilege to the husband to thwart the course of justice.
6. For the reasons stated above, the criminal revision is allowed and the impugned order of the learned Additional Sessions Judge is set aside. M.C. No. 87 of 1985 of the court of the learned Sub-Divisional Judicial Magistrate, Berhampur, shall revive and proceed according to law in the light of the observations made above.