ALI KHAN v. HAJRAMBI — 1980 DIGILAW 271 (BOM)

JUDGEMENT 1. This is for the fourth time this matter relating to recovery of arrears of maintenance in favour of the wife/respondent No. 1, has come up before this Court. 2. After the order of maintenance was passed on 21-11-1975, the wife/respondent No. 1 put in her first application for execution of the order on 19-10-1977. The husband/petitioner made an offer to take back the wife. A point was also taken by him that certain portion of the claim for arrears of maintenance was barred by time. The objections raised by the husband having been dismissed and a warrant ordered to be issued under Section 125(3) r/w. Section 421(b), the husband preferred criminal revision application No. 7/78 in this Court pointing out two irregularities; one relating to non-compliance of the provisions contained in the second proviso to Sub-Section (3) to Section 125, Cr. P.C., and the second relating to issuance of an order for holding back the maintenance amount from the salary of the husband without issuing necessary warrant as provided by law. When the matter came up for hearing it was agreed that the matter should be sent back to, the court of the Magistrate for following the procedure laid down in Sub-Section (3) of Section 125, Cr. P.C. After remand as the learned Magistrate did not hold the inquiry regarding offer made by the husband, the petitioner again preferred Criminal Revision Application No. 34/79 which was again accepted and the matter was remanded. This time also the counsel agreed that the disposal was not in accordance with the law and the case should be remitted for a fresh decision on two questions formulated as under :- (1) Whether a letter could be addressed to the Collector for reduction of a portion of the salary of the petitioner; and (2) Whether the claim by the wife in respect of the past maintenance and recurring maintenance is barred by limitation in terms of Section 125, Cr. P.C. There was another Criminal Revision No. 85/79 filed by the petitioner because the learned Magistrate still committed the same mistake in answering the two questions. The petition was allowed and the case was again remanded by order dated 26th April, 1980. 3. On 23-5-1980 the advocate for the wife made an application for issuance of a warrant against the husband and sent to the Collector for recovery. The petition was allowed and the case was again remanded by order dated 26th April, 1980. 3. On 23-5-1980 the advocate for the wife made an application for issuance of a warrant against the husband and sent to the Collector for recovery. The Court passed the following order :- "Issued warrant under Section 125(3) r/w. Section 421(b) as ordered in Order dated 26-10-1979. Hon'ble Addl. Judicial Commissioner in Cr. Revn. No. 85/79 has held that the recovery of part maintenance shall be made. Sd/- R.K. Batta. 23-5-80" On the aforesaid date the learned Magistrate also passed an order posting the case to 5/6/80 for inquiry regarding the offer made by the husband. By his order dated 1-8-1980 he has held that the refusal of the wife to live with the petitioner was genuine and for sufficient reason. 4. It is against the aforesaid two orders this criminal revision application has been preferred. 5. The first point taken up by Mr. Fernandes, learned advocate for the petitioner, is that the order dated 23-5-1980 regarding issuance of warrant for attachment of future salary of the petitioner for the purpose of recovery of the arrears of maintenance is without jurisdiction not being supported by any provision of law. Section 421 of the Code of Criminal Procedure speaks of levy of fine. It says that when the 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 :- (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. There has been no change in the aforesaid two ways in the new Criminal Procedure Code. In'Baldevi v. Ramnath' AIR 1955 Raj 61 : (1955 Cri LJ 621), it has been held that under Section 488(3)(old Code)(corresponding to Section 125 of the new Code), the wife cannot ask the Magistrate to attach the future salary of the husband as and when it becomes due for two reasons; firstly future salary is not available for seizure. In'Baldevi v. Ramnath' AIR 1955 Raj 61 : (1955 Cri LJ 621), it has been held that under Section 488(3)(old Code)(corresponding to Section 125 of the new Code), the wife cannot ask the Magistrate to attach the future salary of the husband as and when it becomes due for two reasons; firstly future salary is not 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. No decision to the contrary has been brought to my notice. Relying on the aforesaid decision I am to hold that attachment of future salary is not permissible. As to the other way there is also no scope for effecting attachment of the salary. The Magistrate is authorised only to 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. It has been further stated that where the Court issues a warrant to the Collector under Clause (b) of Sub-Section (1), the Collector shall realise the amount in accordance with law relating to recovery of arrears of land revenue, as if such warrant were a certificate issued under such law. This aspect of the matter has not been considered by the Magistrate at all. It is strange that a Senior Civil Judge has not cared to look into the law. In this view of the matter the order dated 23-5-1980 is clearly not sustainable and has got to be set aside. 6. The second piece of argument advanced by Mr. Fernandes is that the learned Magistrate also failed to consider whether the claim of the wife is or is not within time. He also appears to be very much right on this score. In support of his contention he has referred to the decision in'Iftekhar Husain v. Smt. Hameeda Begum' 1980 Cri LJ 1212 (All). I have my respectful concurrence with the aforesaid decision. The learned Magistrate was thus not alive to this aspect of the law. The learned Magistrate ought to have perused the provisions of law before proceeding to issue the warrant. This carelessness on the part of the learned Magistrate has caused immense loss to the parties. Mr. I have my respectful concurrence with the aforesaid decision. The learned Magistrate was thus not alive to this aspect of the law. The learned Magistrate ought to have perused the provisions of law before proceeding to issue the warrant. This carelessness on the part of the learned Magistrate has caused immense loss to the parties. Mr. Fernandes has also pointed as to how the Court has proceeded in a whimsical way while it issued the warrant first before holding the inquiry as directed by this Court. He also appears to be right in this respect. 7. Mr. Fernandes has then challenged the decision of the learned Magistrate as regards the refusal of the wife to live with the husband. But so far as this aspect is concerned I have no doubt that the husband has no case. It is not in dispute that maintenance has been ordered to the wife on the ground of ill-treatment meted out to her by the relatives of the husband with whom they live. According to Mr. Fernandes the finding of the learned Magistrate that the wife's refusal to join the husband is erroneous inasmuch as the evidence on record does not support the stand taken by the Court. The learned Magistrate could not have availed himself of the earlier finding. In other words the contention of Mr. Fernandes is that the wife's claim that she apprehends danger to her life or ill-treatment cannot be taken as adequate. According to him she must rejoin the husband and if she is meted out ill-treatment she can then only make out a case for refusing to continue to live with the husband. He has however not been able to support his above contention with any authority. I am also not very much impressed with the proposition that whenever the husband, after the passing of the maintenance order makes an offer to maintain his wife, the latter must rejoin first and then make out a case for living separately. In my view if the wife from the conduct anterior to the order of maintenance and conduct after passing of the order and from other circumstances is able to establish that there is reasonable apprehension of ill-treatment, there is no reason why such apprehension could not furnish sufficient ground for her refusal to live with him. In my view if the wife from the conduct anterior to the order of maintenance and conduct after passing of the order and from other circumstances is able to establish that there is reasonable apprehension of ill-treatment, there is no reason why such apprehension could not furnish sufficient ground for her refusal to live with him. In the instant case not only the husband has not paid a single pie after passing of the maintenance order but has exhibited no conduct from which it is possible to infer that he had genuinely made attempt to get back his wife. In other words, there is nothing on record to indicate any change in the situation that existed prior to the passing of the maintenance order. In addition some evidence has also been led in this enquiry. In this view of the position, the finding of the learned Magistrate that the wife's apprehension of ill-treatment is genuine, appears to be unassailable. I, therefore, confirm the finding of the learned Magistrate on this score. But since irregularities are noticed on the other two counts, the order dated 23-5-1980 has got to be set aside being contrary to law. 8. This criminal revision is accordingly allowed in part and the learned Magistrate is again directed to decide the two questions afresh in the light of the discussion made above within a period of one month from the date of receipt of this order without fail. There shall be no cost in view of the peculiar circumstances of the case. Revision allowed.