Both the learned counsel arguing the case before me then urged a yet another point pertaining to the interpretation of S. 421(1) of Code of Criminal Procedure. Pointing out that the aforesaid sub-section has said, "when an offender has been sentenced to pay a fine, the Court passing sentence may take action for recovery of a fine, in either or both of the following ways." Emphasis was led on the word "may take action". It was submitted, quite with force, that the provisions contained in this sub-section were not restrictive provisions, but they were enabling provisions. It was, therefore, submitted that, even if a restricted interpretation was put on clause (a) of the said section, the section itself did not bar the jurisdiction of the Court to recover the amount of fine in ways other than the two ways enumerated in the section. Sub-section (1) enables the Criminal Courts to recover the levy of fine in two ways specified in clauses (a) and (b) of the said sub-section leaving it open to the Courts also to adopt other legal measures for levying of the fines. In that context also, reference was again made to the provisions contained in S. 83 of the Code of Criminal Procedure by submitting that the mode indicated in Ss. 83(3) and 83(4) both read with S. 85(2) could be used for attachment and sale of intangible moveable assets of a person liable to pay the amount which was leviable as fine. This contention also contains a good deal of force.
When a money lender or a Bank has got the right to attach the salary or an official to the extent indicated therein in execution of the money decree or maintenance decree, it is preposterous to say that a wife cannot seek for attachment of her husband's salary for recovering the arrears of maintenance granted by the Magistrate under S. 125(3). A wife who is entitled to maintenance under S. 125, Cr.P.C. and who is also entitled to recover the arrears under S. 125(3), cannot be placed worst than a money lender. What is available under S. 60, C.P.C. for a maintenance decree-holder, can also be made available under S. 125(3), Cr.P.C. for the recovery of arrears of maintenance."
When a money lender or a Bank has got the right to attach the salary or an official to the extent indicated therein in execution of the money decree or maintenance decree, it is preposterous to say that a wife cannot seek for attachment of her husband's salary for recovering the arrears of maintenance granted by the Magistrate under S. 125(3). A wife who is entitled to maintenance under S. 125, Cr.P.C. and who is also entitled to recover the arrears under S. 125(3), cannot be placed worst than a money lender. What is available under S. 60, C.P.C. for a maintenance decree-holder, can also be made available under S. 125(3), Cr.P.C. for the recovery of arrears of maintenance."
Bombay High Court
Bhagwat Baburao Gaikwad And ... vs Baburao Bhaiyya Gaikwad And ... on 28 September, 1993
Equivalent citations: 1994 (2) BomCR 695, 1994 CriLJ 2393, II (1994) DMC 195
Bench: M Vaidya
