Saturday, 13 April 2019

Whether pension of husband can be attached for recovery of maintenance to wife?

The above said Section shows that in civil disputes
pensions cannot be attached at the instance of creditors.
Commentary relied on by learned counsel for the
applicant/husband at serial No.16 under head of attachment shows
that, “maintenance allowance granted to wife cannot be considered
as debt – She is not a creditor hence exemption under S.11 cannot
be granted to husband. (1985)87 Punk LR 682 : (1985) 12 Cri LT
219”. The said commentary itself shows that pensions can be
attached to recover amount of maintenance. Hence, the stand
taken by learned counsel for the applicant/husband that pensions
cannot be attached is not digestible.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL REVISION APPLICATION NO.202 OF 2018

Bhagwant s/o Pandurang Narnawre, Vs Radhika w/o Bhagwant Narnawre,

CORAM : M.G.GIRATKAR, J.
DATE : APRIL 5, 2019.



1. Heard. ADMIT. Heard finally by consent of learned
counsel Shri P.K.Mishra for the applicant/husband and learned
counsel Shri S.J.Kadu for the nonapplicant/
wife.
2. Learned counsel for the applicant/husband submitted
that learned Magistrate exceeded its jurisdiction by passing order
of attachment of pension. He submitted that before retirement, the
applicant/husband was getting salary of Rs.1,53,000/per
month
and after retirement he is getting pension of Rs.72,000/per

month. He further submitted that the applicant/husband is not in
a position to pay Rs.30,000/per
month to his wife as
maintenance. Learned counsel pointing out Section 11 of the
Pensions Act, 1871 submitted that as per the said Section, pensions
cannot be attached. He submitted that order of learned Magistrate
directing the applicant/husband to pay interim maintenance at
Rs.30,000/per
month to the nonapplicant/
wife is perverse one.
He submitted that Rs.30,000/as
maintenance is exorbitant.
Whereas, he submitted that at the most it should be at Rs.20,000/per
month. Lastly, learned counsel for the applicant/husband
submitted the learned Magistrate wrongly passed order below
Exhibit 5 without giving an opportunity of hearing. Hence, he
prayed to allow the present revision application.
3. Learned counsel Shri S.J.Kadu for the nonapplicant/
wife submitted that pensions can be attached for
payment of maintenance amount. He submitted that the
applicant/husband is well settled person having sufficient means
and is getting Rs.72,000/per
month as pension. He pointing out
crossexamination
of the applicanthusband
submitted that the
applicant/husband received Rs.20.00 lacs as pensionary benefits.
He is residing at Amravati in his own house. He purchased a row
house at Nagpur. The said admission made by the
applicant/husband shows that the applicant/husband can pay
maintenance at Rs.30,000/per
month to his wife. Nobody is
dependent on him. Hence, the present revision is liable to be
dismissed.
4. Learned counsel Shri P.K.Mishra for the
applicant/husband pointed out Section 11 of the Pensions Act,
1871 and submitted that pensions cannot be attached. The said
Section 11 is reproduced herein below:
“11. Exemption of pension from attachment.No
pension granted or continued by Government on
political considerations, or on account of past
services or present infirmities or as a
compassionate allowance,
and no money due or to become due on account
of any such pension or allowance.
shall be liable to seizure, attachment or
sequestration by process of any Court a[***] at
the instance of a creditor, for, any demand
against the pensioner, or in satisfaction of a
decree or order of any such Court.
b[This section applies a[***] also to pensions

granted or continued, after the separation of
Burma from India, by the Government of
Burma.]
[a] The words “in Part A States and Part C
States” were omitted by S.2 A.L.O., 1956 (1111956).
[b] Inserted by A.O., 1937 (141937).
[c] That is, on or after 141937.”
The above said Section shows that in civil disputes
pensions cannot be attached at the instance of creditors.
Commentary relied on by learned counsel for the
applicant/husband at serial No.16 under head of attachment shows
that, “maintenance allowance granted to wife cannot be considered
as debt – She is not a creditor hence exemption under S.11 cannot
be granted to husband. (1985)87 Punk LR 682 : (1985) 12 Cri LT
219”. The said commentary itself shows that pensions can be
attached to recover amount of maintenance. Hence, the stand
taken by learned counsel for the applicant/husband that pensions
cannot be attached is not digestible.
5. Having heard the submissions made by learned
counsel for the parties, it appears that the applicant/husband is

retired and getting pension. The wife is also doing beauty parlour.
The maintenance amount at Rs.30,000/per
month granted by
learned Magistrate appears to be exorbitant. Pending disposal of
domestic violence proceedings before learned Magistrate, at this
stage amount of Rs.20,000/per
month towards interim
maintenance appears to be proper. Hence, following order is
passed.
ORDER
(i) The criminal revision application is partly allowed.
(ii) Order of interim maintenance is maintained. However,
amount at Rs.30,000/per
month is modified.
(iii) Instead of Rs.30,000/per
month, the applicant/husband shall
pay Rs.20,000/per
month towards interim maintenance to his
wife during the pendency of D.V.Act proceedings.
(iv) The order of attachment of pension is hereby quashed and set
aside subject to the applicant/husband clears all arrears of
maintenance within a period of one month from today.

(v) Learned Magistrate is directed to decide the Criminal
Application No.254/2016 pending before it within a period of 3
months from the date of receipt of writ of this order.
The criminal revision application stands disposed of in
aforesaid terms.
JUDGE

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