Our attention was also invited to a decision of the learned Single Judge at Nagpur Bench of this Court in Bhagwat Baburao Gaikwad and Anr. v. Baburao Bhaiyya Gaikwad and Anr., Criminal Application No. 794 of 1993, decided on September 28, 1993 (since reported in 1994 (1) Mh.L.J. 202). The learned Single Judge (M.S. Vaidya, J.) held in the said case that a warrant for attachment of the salary of the husband can be issued by the Magistrate for recovery of the arrears of maintenance allowance claimed by wife and child. Similarly, the learned Single Judge (K.P. Mahapatra, J.) of the Orissa High Court in Surekha Mrudangia v. Ramahari Mrudangia, 1990(1)Cr.L.C. 84, held that, for default of payment of maintenance, salary of the husband shall be liable for attachment when it becomes due at the end of the month and till then the writ of attachment shall remain dormant so as to revive at the appropriate time. In our opinion, the propositions enumerated in these two cases lay down the correct propositions of law. The learned Single Judge of Orissa High Court also thought it fit to recommend for amendments of the provisions of Sections 125 and 421 of the Criminal Procedure Code, in such a manner that it shall not be difficult for the deserted wives and children to recover the arrears and current maintenance. We are also of the view that a time has come when Sections 125 and 421 of Criminal Procedure Code require suitable amendments so as to enable the deserted wives, children and the parents to recover maintenance in a more effective and speedy way. The present procedure is not only time-consuming but also cumbersome and as such, it is a call of the day that these provisions are suitably amended. Further, it cannot be lost sight of the fact that the term salary has also undergone a radical change since the enactment of Section 421 of Criminal Procedure Code, 1973. In view of this we, therefore, respectfully disagree with the views expressed by our learned Single Judge (Puranik, J.) in Jagoo Sarju v. Ramkali Jagoo, 1982 Mh.L.J. 859, and hold that a salary becomes a tangible movable property when it accrues to a person and as such a warrant for attachment of such salary can be issued but it remains dormant and pending till the salary becomes actually due so as to make the warrant effective. The issuance of a warrant for attachment of the future salary at the inception cannot, therefore, be regarded as unauthorised and illegal.
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Bombay High Court
Naseera Begum And Ors. vs Syed Habibur Rehman And Anr. on 5 October, 1993
Equivalent citations: (1995) IILLJ 462 Bom, 1995(1)MhLj321
Bench: B Deshmukh, S Dani
1. This revision, which is a referred matter to this Bench by the learned Single Judge of this Court raises an interesting point as to whether future salary of a person can be held to be a tangible movable property for the purposes of Section 421 of Criminal Procedure Code and it cannot, at any time, be attached for recovery of the defaulted amount of the maintenance awarded to a wife.
2. The present Petitioners Nos. 2 and 3 are the minor sons of Petitioner No. 1. The Petitioner No. 1 is the legally wedded wife of Respondent No. 1. Inasmuch as the petitioners were deserted and neglected by Respondent No. 1, by refusing to maintain them, the petitioner No. 1, for herself and for her sons, started this legal battle in 1981 for monthly maintenance. She filed an application under Section 125, Criminal Procedure Code, 1973, for the monthly maintenance on July 27, 1981 in the Court of the Judicial Magistrate, First Class, Nanded. It was Miscellaneous Application No. 115 of 1981, By an order, dated August 25, 1982 she was awarded monthly maintenance of Rs. 200 for herself and Rs. 50 each for the Petitioners Nos. 2 and 3. The present petitioners then moved the Sessions Court for enhancement of the amount while Respondent No. 1 husband also moved the Sessions Court for the cancellation of the order of maintenance. These two proceedings, Criminal Revision Petitions Nos. 132/1982 and 162/1982, came to be rejected by the Sessions Court by the common order, dated April 12, 1983. Respondent No, 1-husband then moved this Court in Criminal Application No. 193/1983 which came to be dismissed on November 29, 1983. The Petitioner No. 1 wife then approached the trial Court for recovery of maintenance on several occasions and lastly by the present Misc. Application No. 230 of 1988.
3. Respondent-husband is gainfully employed with the State Government as a Mechanic and drawing monthly salary. Therefore, in the recovery proceedings in Misc. Application No. 230 of 1988, the wife sought the relief of attachment of salary of her husband in execution of the amount of arrears of maintenance. By an order dated August 1, 1989 the Judicial Magistrate, Nanded, awarded the said relief and directed the attachment of the salary of the respondent-husband. The order was challenged by the husband in Criminal Revision Petition No. 203 of 1989 before the Sessions Court at Nanded and by an order, dated September 16, 1989, the 2nd Additional Sessions Judge, Nanded allowed the said revision and set aside the order of attachment holding that it could only be done under Section 421 of Criminal Procedure Code, 1973 by civil process through the Collector of the District as recovery of arrears of land revenue. The order of the 2nd Additional Sessions Judge is carried to this Court in Criminal Revision Application 327 of 1989 by the wife.
4. At the time of the hearing of this revision petition, reliance was placed on number of rulings on behalf of both the sides. On behalf of respondent-husband reliance was placed on the ruling of the learned Single Judge of this Court (Puranik, J.) in Jagoo Sarja v. Ramkali Jagoo, 1982 Mh.L.J. 859, for holding the future salary as not movable and tangible property within the meaning of Section 421 of Criminal Procedure Code and as such, was not liable for attachment in execution. In the present Criminal Revision Application No. 327 of 1989, the learned Single Judge of this Court (N.P, Chapalgaonker, J.) respectfully disagreed with the views expressed in 1982 Mh. LJ 859 (supra) and thought fit that the view taken in the earlier case requires reconsideration. By an order, dated February 20, 1991 the matter has been referred to the Division Bench of this Court and as such it is placed before us.
5. At the outset it would be proper to refer to certain rulings relied on behalf of both sides. Shri Mohd. Mustafa Ahmad Momin, learned Counsel for Respondent No. 1, mainly relied on two judgments of the Calcutta High Court in Rajendranath v. Brijbala, and Smt. Renuka v. Dhirendra, 1974 Cr. L.J. 121. In the first case, it is held that for the purpose of enforcement of maintenance order, a Magistrate is required to follow the procedure 1 prescribed in Section 386 of Criminal Procedure Code, 1898 and where the salary of the defaulting husband is to be attached, the provisions of Clause (b) of Sub-section (1) of the said section have to be followed. It was ultimately held that the order directing to attach a definite sum of money out of the husband's salary and its payment to the wife was illegal and liable to be set aside. In the other case, the order of the Magistrate attaching the salary of the husband for de- 2 fault in payment of amount of maintenance was also held invalid and for the purposes of Sub-section (3) of Section 386 of Criminal Procedure Code, 1898 it was held to be a decree required to be executed as such. Keeping reliance on these rulings, it is submitted on behalf of respondent-husband that the only mode provided for the recovery of the maintenance under Section 125(3) of Criminal Procedure Code, 1973 is by Section 421 of the said Code and as the future salary of a person cannot be a tangible movable property in his possession, the order of recovery of maintenance has to be executed only as the amount of arrears of land revenue under Clause (b) of Sub-section (1) of Section 421 of Criminal 3 Procedure Code, 1973 and not by way of attachment of the salary.
6. Smt. Ansari, learned Counsel for the petitioners, on the other hand, placed reliance on the A four rulings i.e. Ahmed Pasha v. Wajid Unissa, 1983 Cr.L.J. 479; In re : Yerasuri Lakshmi-naryan Murty, 1986 Cr.LJ. 1846; Rudraiah K.V. v. Muddagangamma B.E., (1985 (1) Crimes 700 and Surekha Mrudangia v. Ramahari Mrudangia, 1990(1) Cr.L.C. 84.
7. In the case of Ahmad Pasha v. Wajid Unissa, (supra) recovery of arrears of maintenance by issuance of warrant for attachment of 5 salary was held permissible by holding that the wording of Section 125(3) of Criminal Procedure Code, 1973 permits the Magistrate to follow the procedure prescribed under Section 421, Criminal Procedure Code for levy of fines for recovery of arrears of maintenance. It was further held that as the Section 421, Criminal Procedure Code, 1973, provides for issuance of warrant, for attachment or sale of any movable property, the issuance of such warrant for attachment of salary for recovery of maintenance was uphled. In the case of Yerasuri Lakshminarayan Murty (supra), it is held that the salary could be attached for the payment of maintenance under Section 125(3) of Criminal Procedure Code on the ground that it is imperative on the part of the person against whom the decree for payment is passed to comply with it and the expression 'movable property' must be given a wide interpretation so as to include the salary in it. In the case of Rudraiah v. Muddagangamma (supra), a similar view was taken and when the husband was found having failed to comply with the order of maintenance, issuance of warrant of attachment of the salary under Section 421(1)(a) of Criminal Procedure Code, 1973 was held valid and effective. In the case of Surekha Mrudangia v. Ramahari Mrudangia (supra), also the arrear of maintenance was held as recoverable in the same manner provided for recovery of fine under Section 421(1)(a) of the Code. As stated above, the learned Single Judge of this Court took a view in Jagoo Sarju v. Ramkati Jagoo, 1982 Mh.LJ. 859, that the amount of maintenance payable under Section 125, Criminal Procedure Code, has to be recovered under Section 421, Criminal Procedure Code, 1973 and as the future salary cannot be said to be a tangible movable property, no warrant for its attachment could be issued. The learned Single Judge placed reliance on Baldevi v. Ramnath, AIR 1955 Raj. 61 and All Khan v. Hajrambi, 1981 Cr.LJ. 682.
8. The question involved is, therefore, whether the future salary of an employee can be said to be a tangible movable property for the purposes of Section 421, Criminal Procedure Code, 1973 and can or can it not be attached by issuance of warrant in a proceeding to recover the arrears of maintenance at any time. At the outset it is necessary, in our opinion, to consider the object in making the provisions in Chapter IX of the Code of Criminal Procedure, 1973 with respect to maintenance and its recovery. It cannot be doubted that the provisions are inserted to enable the deserted wives, children and aged parents to secure monetary relief from those who, though having financial capacity, have failed to maintain them. The provisions are undoubtedly for the speedy and quick remedy for a wife to claim maintenance when discarded and, being unable to maintain herself, is in dire need of financial assistance. The provisions in respect of maintenance and its recovery are, therefore, required to be construed in such a manner so as to prove beneficial to those for: whom they are enacted and so as to fulfil the desired object. The laws are to be adopted to those cases which mostly frequently occur - "Ad ea quae prequentitus accidure jura adaptan-tur". The law should not allow the rights to be destroyed. On the other hand, when there is a right, there is a remedy and if one has a right, there must be the means to vindicate and maintain it. Indeed, it is a vain thing to imagine a right without a remedy for want of right and want of remedy are reciprocal.
9. It will not be out of place to refer to certain relevant provisions contained in the Code of Civil Procedure, 1908. Section 60 of the Code lists the properties liable to attachment and sale in execution of a decree and as per Sub-clause (i)(a) one- third of the salary in execution of any decree for maintenance shall not be liable to such attachment. It, therefore, stands that a salary is liable for attachment in execution of a decree under the said provisions beyond the limit mentioned in it. If this is permissible, we fail to understand as to why it should not be so when an order in respect of recovery of arrears of maintenance is tried to be executed under Section 125(3), Criminal Procedure Code. It need not be stated a money claim secured by a banker or a money-lender can be successfully executed against a debtor under Section 60 of the Civil Procedure Code, 1908 even by attachment and sale of a movable property. If a wife, who has been awarded the monthly maintenance from her husband, is not to be allowed to recover the maintenance by way of the mode of attachment of the salary, she, in our opinion, though a deserted lady and in need, is reduced to a level lower than a banker or a money-lender.
10. A useful reference can also be made to a similar situation available under the provisions of the Hindu Marriage Act, 1955. Section 24 of the said Act provided for the maintenance pen-dente lite and the expenses of the proceedings. It is enacted that in any proceedings under the said Act, a wife can ask for the interim alimony together with the funds necessary to meet the expenses of the proceedings and the court is empowered to award such maintenance pen-dante lite. Similarly, Section 25 of the said Act provides for permanent alimony and maintenance. The orders under both these contingencies are executable. We may also refer at this stage to Section 21 of the Hindu Marriage Act, 1955 whereby the provisions of Code of Civil Procedure, 1908 are made applicable to all the proceedings initiated and decided under the Hindu Marriage Act. It is, therefore, clear that the order in respect of interim alimony award under Section 24 or permanent alimony under Section 25 of the said Act can be executed as a decree of the Court and by referring to the provisions of Section 60 of the Civil Procedure Code, 1908. In both these cases, therefore, if the husband against whom order to pay maintenance is passed is an employee drawing a fixed monthly salary, the wife can execute the order even by attaching the salary to the extent and upto the limit as mentioned in section 60 of Civil Procedure Code, 1908. If this is so, we fail to appreciate as to why a wife who is awarded maintenance under Section 125, Criminal Procedure Code, should not be allowed to execute such an order by resorting to the remedy of attachment of the salary by warrant under Section 124(3), Criminal Procedure Code. We may also refer to the provisions of Order XXI, Rule 12 of the Code of Civil Procedure in this connection under which the movable property of a judgment-debtor can be attached even when it is not in his possession.
11. The nature of the proceedings contemplated by Chapter IX of the Code of Criminal Procedure was enumerated in Kuldip Kaur v. Surinder Singh, 1989Mh.LJ. 1, by the Supreme Court thus:
"The scheme of the provisions embodied in Chapter IX of the Criminal Procedure Code comprising of Sections 125 to 128 which constitutes a complete Code in itself deals with three questions, namely, (1) adjudication as regards the liability to pay monthly allowance to the neglected wife and child;
(2) the execution of the order on recovery of monthly allowance; and, (3) the mode of execution of an order for monthly allowance."
The provisions of Chapter IX of Criminal Procedure Code were, therefore, regarded as constituting a complete Code in itself. Similarly, the Supreme Court in Bhagwan Dutt v. Kamla'. Devi, , observed thus:
"Section 488, Criminal Procedure Code is intended to serve a social purpose. It provides a machinery for summary enforcement of the moral obligations of a man towards his wife and children so that they may not out of sheer destitution become a hazard to the well-being of orderly society."
Again in Nand Lal v. Kanhaiya Lal, , the Supreme Court made it clear that merely because of the provisions regarding maintenance allowance appeared in the Code of Criminal Procedure, it could hardly be said that the proceeding was of the criminal nature and all the provisions contained in the Code were applicable to it.
It may also further be noted that even though Section 125, Criminal Procedure Code, did not contain any specific provision to grant interim maintenance, the Supreme Court in Savitri Govind v. Govind Singh, 1985 Mh.L.J. 976, observed thus:
"every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its order effective..... In order to enjoy the fruits of the proceedings under Section 125, Criminal Procedure Code, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court."
The Supreme Court, therefore, has held the proceedings under Chapter IX of the Criminal Procedure Code as basically of civil nature and in any event, not punitive. The wife who applies for maintenance under Section 125, Criminal Procedure Code, is the petitioner and the husband is respondent in these proceedings. It is not that the wife is complainant and the husband is accused. To marry is not an offence. Section 125, Criminal Procedure Code, awards a right to claim maintenance to a deserted wife unable to maintain herself and who is denied maintenance by her husband though having sufficient means to pay. By enacting Section 125, the Legislature desired to create a speedy remedy for the deserted wives so as to claim the financial assistance. Such criminal proceedings have an element of expeditious consideration and are of civil nature. Therefore, in our opinion, when an order of maintenance passed under the similar provisions of other Acts is allowed to be executed by attachment of the salary, similar course should be open and available in respect of maintenance order under Section 125(3), Code of Criminal Procedure.
12. It is also necessary to refer to the provisions of Sections 125(3) and 421 of Criminal Procedure Code, 1973 in this connection. Section 125(3), Criminal Procedure Code, 1973 provides that if any person ordered to pay maintenance fails without sufficient cause to comply with the order, any Magistrate may for every breach of the order issue a warrant for levying the amount due in the manner provided for levying fines. Section 421, Criminal Procedure Code, provides that 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;
(b) issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter.
Section 421, Criminal Procedure Code, does not prohibit attachment of movable property altogether. It would also be useful to refer to the relevant provisions of the General Clauses Act, 1987 (Act 10 of 1897). Section 3(36) of the said Act defines 'movable property' thus:
'"movable property' shall mean property of every description, except immovable property."
It, therefore, includes not only tangible corporeal movable property, but also the intangible movable such as a right to receive salary and wages from an employer. The definition in the General Clauses Act, 1897 will have to be considered for determining the connotation of the expression 'movable property' for the provisions of the Code of Criminal Procedure including Section 125(3) and Section 421. The only question is when the future salary can be said to be a movable property belonging to the husband against whom the recovery proceeding is initiated. It is true that, the salary, unless it becomes due, cannot be said to be the property of a person. To get salary, a person has to earn it. It, however, cannot be construed that it never assumes the status of a movable tangible property. In case of a salaried employee, the salary becomes due: when he avails it and at that moment it becomes his movable tangible property. If this is so, it cannot be gainsaid that a future salary can in no case be attached by a warrant. The salary becomes a movable property under Sub-clause (a) of Clause (1) of Section 421, Criminal Procedure Code when it becomes due. If this is so, it cannot be said that at no time a wife cannot ask to attach the salary of her husband in recovery proceedings. The Court is not prohibited forever to issue a warrant of attachment of the salary. It, however, also cannot be lost sight of the fact that a warrant takes effect when the salary becomes due and assumes the status of movable tangible property of the husband. Therefore, the issuance of a warrant for an attachment of the salary by itself cannot be said to be unwarranted by the provisions of the law. Considering the similar situations and the provisions we are, therefore, of the view that a future salary is not tangible property at inception, but it takes the shape of a tangible property when it becomes due. Therefore, when the salary becomes payable and takes the shape of tangible corporeal property it can be attached for realisation of arrears as well as current maintenance under Section 125(3) read with Section 421(1)(a) of the said Code. In case of default in payment of maintenance, the salary of the husband would, therefore, be liable for attachment in accordance with law when it becomes due at the end of the month and till then the warrant of attachment issued by the Magistrate has to remain dormant so as to revive at the appropriate time.
13. Our attention was also invited to a decision of the learned Single Judge at Nagpur Bench of this Court in Bhagwat Baburao Gaikwad and Anr. v. Baburao Bhaiyya Gaikwad and Anr., Criminal Application No. 794 of 1993, decided on September 28, 1993 (since reported in 1994 (1) Mh.L.J. 202). The learned Single Judge (M.S. Vaidya, J.) held in the said case that a warrant for attachment of the salary of the husband can be issued by the Magistrate for recovery of the arrears of maintenance allowance claimed by wife and child. Similarly, the learned Single Judge (K.P. Mahapatra, J.) of the Orissa High Court in Surekha Mrudangia v. Ramahari Mrudangia, 1990(1)Cr.L.C. 84, held that, for default of payment of maintenance, salary of the husband shall be liable for attachment when it becomes due at the end of the month and till then the writ of attachment shall remain dormant so as to revive at the appropriate time. In our opinion, the propositions enumerated in these two cases lay down the correct propositions of law. The learned Single Judge of Orissa High Court also thought it fit to recommend for amendments of the provisions of Sections 125 and 421 of the Criminal Procedure Code, in such a manner that it shall not be difficult for the deserted wives and children to recover the arrears and current maintenance. We are also of the view that a time has come when Sections 125 and 421 of Criminal Procedure Code require suitable amendments so as to enable the deserted wives, children and the parents to recover maintenance in a more effective and speedy way. The present procedure is not only time-consuming but also cumbersome and as such, it is a call of the day that these provisions are suitably amended. Further, it cannot be lost sight of the fact that the term salary has also undergone a radical change since the enactment of Section 421 of Criminal Procedure Code, 1973. In view of this we, therefore, respectfully disagree with the views expressed by our learned Single Judge (Puranik, J.) in Jagoo Sarju v. Ramkali Jagoo, 1982 Mh.L.J. 859, and hold that a salary becomes a tangible movable property when it accrues to a person and as such a warrant for attachment of such salary can be issued but it remains dormant and pending till the salary becomes actually due so as to make the warrant effective. The issuance of a warrant for attachment of the future salary at the inception cannot, therefore, be regarded as unauthorised and illegal.
14. At the time of the hearing of this revision, a certified copy of the order, dated June 26, 1991 of the Chief Judicial Magistrate, Nanded in Misc. Criminal Case No. 442 of 1990 under Section 127, Criminal Procedure Code, 1973, is placed on record and it is submitted on behalf of the husband that, inasmuch as the initial order of monthly maintenance stands cancelled, the entire recovery proceedings will have to be dropped. The submissions, however, cannot be accepted. By the said order, dated June 26, 1991 itself the maintenance allowance in favour of the present Petitioners Nos. 2 and 3 has been maintained and the question in respect of arrears of the maintenance has to be considered and as such, the recovery proceedings will have to be continued.
15. In the result, the impugned order, dated September 16, 1989 of the 2nd Additional Sessions Judge, Nanded, in Criminal Revision Petition No. 203 of 1988 is hereby quashed and set aside and the order, dated August 1, 1989 of the Chief Judicial Magistrate in Misc. Application No. 230 of 1988 is hereby restored. The matter is remanded to the Chief Judicial Magistrate, Nanded with a direction to decide and dispose of the above Miscellaneous Application No. 230 of 1988 according to law expeditiously. No order as to costs.
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