Mazahar Abbas v. Sakeena — 1985 DIGILAW 984 (ALL)

JUDGMENT P. Dayal, J. 1. Mazhar Abbas filed this revision against Smt. Sakeena challenging the order dated 7-6-82, passed by Sri Narendra Bahadur Singh, Munsif Magistrate, Akbarpur, district Faizabad, rejecting his objections. 2. The parties were married to each other. The opposite party Smt. Sakeena moved an application for maintenance under Section 125 CrPC which was allowed on 1-12-81 and her maintenance allowance was fixed at Rs. 150/- per month by the Magistrate against the revisionist. The maintenance allowance was payable with effect from 25-4-80. The husband Mazhar Abbas filed a crimmal revision no. 2 of 1982 which was dismissed. Opposite party Smt.Sakeena moved an application under Section 128 CrPC with a prayer for realisation of Rs. 3200/- which had become due. The revisionist Mazhar Abbas filed objections which were dismissed and the Magistrate passed an order, realisation of the amount of Rs. 3200/- by deducting a sum of Rs. 200/- p. m. from the salary of the revisionist. 3. The revisionist claimed in this revision that he was employed at Lucknow in the vigilance section of the Police Department and that the courts at Lucknow had jurisdiction under Section 128 CrPC to realise the amount of maintenance from him. He raised second point to the effect that he had offered to maintain Smt. Sakeena in his objections and the learned Magistrate ought to have decided this point. Thirdly, he claimed that the arrears of the amount of maintenance allowance could not be realised from his salary. 4. The revisionist relied on the provisions of Section 128, CrPC which read as follows :- "128. A copy of the order of maintenance shall be given without payment to the person in whose favour it is made, or to his guardian, if any, or to person to whom the allowance is to be paid and such order may be enforced by any Magistrate in any place where the person against whom it is made may be, on such Magistrate being, satisfied as to the identity of the parties and the non-payment of the allowance due." It is evident from the wordings of the aforesaid section 128 that this section (Section 128) lays down the provisions for enforcing the order which was passed under Section 125 CrPC. It has been clearly laid down that such an order may be enforced by any Magistrate in any place where the person against whom it is made, may be, on such Magistrate being satisfied as to the identity of the parties and the non-payment of the allowance due. This provision has been specifically introduced by the legislature for meeting the situation where a person against whom an order is passed lives out side the jurisdiction of that Magistrate who had passed the order, as is the case in the present proceedings. The revisionist started living at Lucknow. Therefore, the order can be enforced at Lucknow only subject to the condition that the Magistrate in Lucknow has to satisfy himself about the identity of the parties and the non-payment of the allowance due. The forum for enforcing the order passed under Section 125 CrPC, as laid down in Section 128, is the Magistrate where the person against whom that order was made, resides. Sub-section (3) of Section 125 CrPC lays down that 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 months 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 : Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the court to levy such amount within a period of one year from the date on which it became due : 5. The procedure for executing the order passed under Section 125 is laid down in Section 126 CrPC which deals that proceedings under Section 125 may be taken against any person in any district where he is or where he or his wife resides or where he last resided with his wife, or, as the case may be, with the mother of the illegitimate child. So the proceedings may be taken against a person for realisation of the maintenance allowance in any district where he is living and the mode of the enforcement of the order of maintenance is provided in Section 128 CrPC. 6. So the proceedings may be taken against a person for realisation of the maintenance allowance in any district where he is living and the mode of the enforcement of the order of maintenance is provided in Section 128 CrPC. 6. As about the point of offer to maintain, it has been laid down in second proviso to Section 125 (3) that if any person offers to maintain his wife on condition of living with him and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her and may order under this section, notwithstanding such offer, if he is satisfied that there is just ground for so doing. This proviso itself makes it clear that a Magistrate may make on order under Section 125 CrPC, and the stage for considering the offer is when the parties' evidence is recorded in support of the respective claims. This proviso does not lay down that the offer to maintain can be made even after the decision on this point has been given after recording the evidence of the parties or that such an offer can be made at the time of execution and enforcement of the order. The revisionist relied upon the case of Smt. Ranjit Kaur v. Dr. Avtar Singh, AIR 1960 Punjab 221. in which case it was argued that the proviso may be taken into consideration only after an order for the payment of maintenance allowance has been made by the Magistrate under sub-section (1) of Section 125 and the same is desired to be enforced by the wife, and it was held that if this argument is accepted, it would mean that in an application under Section 488 CrPC for fixation of maintenance allowance the court is not entitled to take into consideration the offer made by the husband to maintain his wife on the condition of her living with him even if such offer is made in good faith and even though the wife had no just cause to stay away from her husband. But, this referred to the proviso of sub-section (1). But, this referred to the proviso of sub-section (1). As about the proviso to subsection (3), only this much was observed that this point was not directly involved and this cannot be treated as authoritative on this point while the first part of the Proviso was available to the husband even under sub-section (1) at the time of the decision of the application as well as at the time of the enforcement of the order. As about the other Proviso it has been observed : "If that be so then the latter part of the Proviso would be applicable as well and the trial Magistrate is bound to consider the grounds given by the wife, if any, while refusing the offer made by the husband to maintain her on condition of her living with him." Thus, there has not been a definite finding on the point that the Magistrate is bound to record evidence again on the point of offer to maintain when he decided that point earlier and such an offer is again made at the time of the enforcement of the order of maintenance allowance. In the instant case, the learned Magistrate has rightly observed that it was not proper to pass another order on the same point. The bonafide of the offer was thus considered by the Magistrate. 7. The revisionist, then, contended that the arrers of the amount of maintenance allowance could not be realised from his salary. He referred to section 60 (1) and its Proviso of CPC. But it is not a case where the provisions of Section 60 are applicable nor the revisionist comes under the definition of "labour etc." as contemplated by section 60 CPC. Under Section 421, CrPC the recovery of fine can be made by issuing warrant for the levied amount by attachment and sale of any moveable property belonging to the offender. Subsection (3) of Section 125 CrPC empowers the Magistrate to issue a warrant for levy amount due in the manner provided for levying the fine if there has beer breach of the Magistrate's order. It follows that the amount of the maintenance allowance can be realised under Section 421 CrPC. The salary of the employee is moveable property and the same can be attached under clause (a) of subsection (1) of Section 421 CrPC. It follows that the amount of the maintenance allowance can be realised under Section 421 CrPC. The salary of the employee is moveable property and the same can be attached under clause (a) of subsection (1) of Section 421 CrPC. The revisionist relied on the case of Parag Lal v. Smt. Munni Devi, 1980 Lucknow Law Journal 329 in which case the Special Magistrate, who had no power to direct the employer of the applicant for deducting 1/3rd of the amount from the applicant's salary and to remit the same to the opposite party, had passed such an order and it was held that the Special Magistrate could not have given a direction to the Executive Engineer and he could have only issued a warrant to the Collector under Section 421 (b) CrPC. Thus, in this case also a warrant may be issued to the Collector for attaching a sum of Rs. 200/- per month from the salary of the revisionist of sixteen months. But the order of the rejection of the objections of the revisionist is not liable to be set aside on this ground. The case of Smt. Renukh Paul v. Dhirendra Paul, 1974 CrLJ 171 was considered in the cited case but the provisions of Section 421 are divided into two parts. The sub-clause (a) of sub-section (1) reads 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:" Thus, the Magistrate who passed the order could under clause (a) of sub-section (1) of Section 421 himself issue a warrant for attachment of the salary of the offender. He was authorised to take recourse to any of these clauses (a) or (b) or take recourse to both the clauses (a) and (b). He was authorised to take recourse to any of these clauses (a) or (b) or take recourse to both the clauses (a) and (b). The facts of the case cited were different as the Executive Engineer was directed to remit the amount to the opposite party and not to the Court or the Magistrate who had jurisdiction to pass such an order and also a claim for recovery for period of more than a year was made. The cited case referred to clause (b) of sub-section (1) of Section 421, CrPC. Any clarification regarding clause (a) of sub-section (1) of Section 421, has not been given in it. 8. Yet, the stand convassed on behalf of the revisionist would obviously lead to anomalous and starting results. In fact it would mean that even though a decree was passed against the revisionist, and the opposite party was held entitled to maintenance allowance, she would not be paid the same due to some or the other obstruction or objection raised by the revisionist. It is well settled law that if an interpretation leads to an anomolous and mischievous results, the same is to be avoided. For that, the observations made in the case of Seaford Court Estates Ltd. v. Asher, (1949) 2 KB 481 may be cited: "A Judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsman have not provided for this or that, or have been guilty of some or the other ambiguity, it would certainly save the Judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a Judge cannot simply fold his hands and blame the draftsmen. In the absence of it, when a defect appears a Judge cannot simply fold his hands and blame the draftsmen. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it, and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give' force and life ' to the intention of the legislature." Also it was held in the case of A. R. Antulay v. Ramdas Sriniwas Nayak, AIR 1984 SC 718 that it is a well established canon of construction that the Court should read the section as it is and cannot rewrite it to suit its convenience; nor does any canon of construction permit the Court to read the section in such manner as to render it to some extent otiose. Therefore, this revision fails and is hereby dismissed. The stay order is vacated. Revision dismissed.