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2011 DIGILAW 756 (GAU)

Tapash Kanti Dey @ T. K. Dey v. Anjali Deb Dey

2011-09-09

A.C.UPADHYAY

body2011
JUDGMENT A.C. Upadhyay, J. 1. Heard Mr. AK Bhowmick, learned senior counsel assisted by Mr. R. Datta, learned Counsel for the Petitioner and Mr. DC Roy, learned Counsel appearing for the Respondent. 2. This is an application under Section 19(4) of the Family Court Act, 1984 seeking revision of the ex-parte order dated 9.3.11, passed by the learned Judge, Family Court, Agartala, West Tripura, in Case No. Misc.(Int.) 78 /11, arising out of the Misc. (Maintenance) 77/11, whereby a direction was issued to the Drawing and Disbursing Officer (for short, 'DDO') of the Petitioner, to deduct a sum of Rs. 6000/- per month from the salary of the Petitioner w.e.f. 1/3/11, towards the interim maintenance allowance for the Respondent-wife. 3. The Petitioner herein, alleged that he received a notice issued by the learned Judge, Family Court, Agartala, in connection with the aforementioned cases along with a copy of the application filed Under Section 125 Code of Criminal Procedure, accompanied by a certified copy of the order dated 9.3.11 passed in MIsc (Int) 78/2011, by the Judge, Family Court, Agartala, directing the Drawing and Disbursing Officer(DDO) of the Petitioner's Department, to deduct a sum of Rs. 6000/- per month, from the salary of the Petitioner. 4. The application filed Under Section 125 Code of Criminal Procedure filed by the Respondent/wife claiming maintenance allowance from the Petitioner revealed that the marriage ceremony of the Petitioner with the Respondent-wife was solemnized on 10.8.95. Thereafter, a female child was born to the couple in the year 1998. It is also stated in the said petition that the Respondent is taking shelter at her brother's house since 1999. 5. By referring to the above situation of the Respondent wife staying with her brother for last 12 years, learned Counsel for the Petitioner submitted that nowhere in the petition, the Respondent has ever stated as to how she could maintain herself from 1999 till the year 2011, without asking any maintenance allowance from the Petitioner. It has been contended on behalf of the Petitioner that there was no earthly reason for the learned Judge, Family Court to grant an interim maintenance allowance to the Respondent-wife, without serving notice to the Petitioner. 6. Mr. It has been contended on behalf of the Petitioner that there was no earthly reason for the learned Judge, Family Court to grant an interim maintenance allowance to the Respondent-wife, without serving notice to the Petitioner. 6. Mr. A.K. Bowmik, learned senior counsel appearing on behalf of the Petitioner pointed out that the petition does not disclose any reason whatsoever or any urgent or emergent situation, for which the Respondent-wife had to seek ex-parte interim order for grant of maintenance allowance against the Petitioner from the learned Family Court. Learned Counsel further pointed out that without giving any opportunity to the Petitioner to make the payment of the maintenance allowance as ordered by the learned Family Court, surprisingly, a direction was issued to the employer of the Petitioner, i.e., Director, Airport Authority of India, Agartala, for deduction of the amount of Rs. 6000/-, per month from salary of the Petitioner. Learned Counsel for the Petitioner-husband submitted that no reason, whatsoever was assigned by the learned Judge, Family Court for resorting to coercive method of realization of the maintenance dues, from the Petitioner, which is apparently illegal and against the provision of law. 7. It is stated on behalf of the Petitioner that the Respondent-wife had voluntarily deserted the Petitioner, as far back in the year 1989, for no reason whatsoever, and since then in spite of several requests, she did not return to her matrimonial home. The daughter of the Petitioner has been residing with him and the Petitioner has been discharging duty of a loving father by looking after maintenance, education and well being of his child. The Respondent-wife did not even care to bother about the well being and where about of the child all these years. 8. On perusal of the order dated 9.3.11, it appears that the interim order directing payment of maintenance was passed by the learned Judge, Family Court, Agartala, on an application filed by the Respondent/wife, wherein it was stated that due to mental and physical torture meted upon her by the husband, she was compelled to leave the association of the Petitioner/husband and had to take shelter in the house of her parents since 1999. The Respondent-wife further stated that the Petitioner-husband neither did ever care to visit the house of her parents to take her back, nor he gave any suitable maintenance to her, for which she was compelled to approach the Tripura Women Commission for getting suitable redressal. Thereafter, a process of reconciliation between the Respondent/wife and the Petitioner was organized, however, the same did not succeed and as such the Respondent/wife had no other alternative but to approach the Tripura Women Commission, for taking necessary steps and it was decided that the Petitioner/husband would pay monthly maintenance of Rs. 1000/- per month to the Petitioner/wife. According to the Respondent/wife, the Petitioner/husband paid Rs. 1000/- only for one month after the said order. In the said petition, the Respondent/wife also contended that the Petitioner/husband is an Assistant Manager (Stores) under the Airport Authority of India, Tripura and is earning Rs. 60000/- per month and thus having sufficient means to maintain her, but he willfully refused to maintain her, who has no source of income. Thus having failed to secure maintenance as per the direction of the Tripura Women Commission, consequently, she approached the Family Court, Agartala for redressal of her grievances. She claimed monthly maintenance allowance of Rs. 25000/- from the Petitioner/husband. 9. On perusal of the impugned order, it appears that the learned Judge, Family Court, Agartala, on consideration of the interim application filed by the Respondent-wife, taking note of the fact that the Petitioner-husband is serving as Assistant Manager(Stores), under the Airport Authority and drawing a monthly salary of Rs. 60000/- held the Petitioner to have been neglecting the wife, who did not have any source of income. Learned Judge, Family Court, consequently, passed the impugned ex-parte interim maintenance order by relying on the decision of the Apex Court reported in Savitri v. Govind Singh Rawat: AIR 1986 SC 984 . Learned Judge, Family Court directed the DDO (Drawing and Disbursing Officer) of the Petitioner-husband to deduct a sum of Rs. 6000/- per month from the salary of the Petitioner-husband and arrange to send the amount to the Respondent-wife by money order in the given address. 10. Mr. Learned Judge, Family Court directed the DDO (Drawing and Disbursing Officer) of the Petitioner-husband to deduct a sum of Rs. 6000/- per month from the salary of the Petitioner-husband and arrange to send the amount to the Respondent-wife by money order in the given address. 10. Mr. AK Bhowmick, learned senior counsel for the Petitioner raised the following issues for consideration in this case: (i) That the learned Judge, Family Court failed to consider that the Respondent/wife was living separately from the Petitioner for last 12 years without claiming any maintenance and did not also state anywhere as to how she emergently required interim maintenance to maintain her. (ii) The learned Family Judge while considering the petition for interim maintenance allowance of the Respondent/wife failed to assess the reason as to why the interim order of maintenance allowance is required to be granted to the Respondent/wife, who approached the Court after living separately for 12 years from her husband; since there is no indication in the petition, as to how the Respondent/wife could maintain herself for last 12 yeas without any support or assistance of her husband. (iii) Learned Counsel further questioned the legality of the order passed by the learned Judge, Family Court directing the DDO of the Petitioner to deduct the amount of maintenance allowance from the salary of the Petitioner, without any inkling of refusal by the Petitioner to pay the maintenance allowance ordered by the Court. 11. In reply to the above contentions, Mr. DC Roy, learned Counsel for the Respondent/wife submits that there is no limitation prescribed for claiming interim maintenance allowance and the Respondent is also not required to explain as to how she was maintaining herself for last 12 years. Learned Counsel reiterated the decision of the Hon'ble Supreme Court Savitri v. Govind Singh Rawat (supra) to submit that the learned Judge, Family Court is empowered under the law to grant interim maintenance on a petition, for interim maintenance, which is supported by the authority of law and therefore, there is no illegality in the impugned order, as alleged by the Petitioner. 12. 12. In view of the rival contentions raised by the learned Counsel for both the parties, it would be necessary for this Court to discuss and decide the following: i) Whether the circumstances, for granting the ad interim maintenance allowance Under Section 125 Code of Criminal Procedure as indicated in the Supreme Court's decision in Savitri v. Govind Singh Rawat (supra) were satisfied ii) Whether the maintenance allowance ordered by the Court should be directed to be deducted from the salary, without giving opportunity to carry out the direction/order to make payment of the maintenance allowance, or should the Court exercise its power to deduct the maintenance allowance from the salary of the Petitioner without giving prior opportunity to the Petitioner to comply with the Court's order 13. Section 125 Code of Criminal Procedure is meant to achieve social purpose and the object is purely to prevent destitution and vagrancy of married women in the society. The provision has been enacted to provide speedy remedy to enable the estranged wife for supply of food, cloth and shelter. It is undeniable that in our society, a woman after getting married hardly desire to leave the matrimonial house unless she is compelled to do so, or unless there is some apparent reasons, which triggered her own choice of leaving the association of her husband, with some oblique desire. Undeniably, when a woman deserts the company of her husband and leaves on her own, for a long period of 12 years without any help and support from her husband, she is required to justify the reasons, for which she did not approach the appropriate Forum, for redressal of her grievances. 14. In a decision reported in 2011 CriLJ 320 (D.Velusamy v. D. Patchaiammal), the Hon'ble Court observed that when a petition Under Section 125 Code of Criminal Procedure is filed after a delay of 12 years it is to be satisfactorily explained by the wife as to why the delay has occurred in order to dispel the doubts as regards the authenticity of her claim. 15. 15. In the case of Savitri v. Govind Singh Rawat reported in AIR 1986 SC 984 , the Hon'ble Apex Court by emphasizing the power of trial Court Under Section 125 Code of Criminal Procedure to order for ex-parte interim maintenance allowance, held as under: "There is no room for the apprehension that the recognition of such implied power would lead to the passing of interim orders in a large number of cases where the liability to pay maintenance may not exist. It is quite possible that such contingency may arise in a few cases but the prejudice caused thereby to the person against whom it is made is minimal as it can be set right quickly after hearing both the parties. The magistrate, may, however, insist upon an affidavit being filed by or on behalf of the applicant concerned stating the grounds in support of the claim for interim maintenance to satisfy himself that there is a prima facie case for making such an order. Such an order may also be made in an appropriate case ex parte pending service of notice of the application subject to any modification or even an order of cancellation that may be passed after the Respondent is heard. 16. Mr. Bhowmick, learned senior counsel for the Petitioner categorically pointed out that while passing an ex parte order for interim maintenance, pending service of notice of the application, such an order may be made in appropriate cases, subject to any modification or cancellation that may be passed after the Respondent is heard. Learned Counsel further pointed out that in the instant case, the learned Judge, Family Court disposed of the application for interim maintenance allowance by passing an ex parte order for payment of interim maintenance of Rs. 6000/- per month, without issuing any notice. The learned Judge did not keep the misc. application open for hearing to enable the Petitioner to approach the Family Court, for modification or alteration of such order, which is contrary to what has been indicated by the Supreme Court in Savitri (supra). 17. Apparently, the impugned order passed by the Judge, Family Court did not indicate any future date for appearance of the Petitioner in the case to enable him to avail an opportunity of being heard. 17. Apparently, the impugned order passed by the Judge, Family Court did not indicate any future date for appearance of the Petitioner in the case to enable him to avail an opportunity of being heard. The impugned order also did not discuss the circumstances and urgency to extend the privilege of extraordinary relief of ad-interim maintenance allowance to the Respondent-wife, who approached the learned Family Court, for such relief after a long lapse of 12 years. 18. Procedure has been specifically enacted Under Section 125(3) and 128 Code of Criminal Procedure in respect of execution and enforcement of the order allowing maintenance allowances. Though the provision of Section 125 Code of Criminal Procedure for providing maintenance allowance is quasi-civil procedure, the Court cannot make a departure from the express provision of execution as contained in the Code of Criminal Procedure. 19. The order for payment of maintenance is to be enforced when there is a failure to pay the maintenance in terms of the direction issued by the Court. In Hazi Abdul Khaleque v. Mustt. Samsun Nehar 1991 Cri L J 1843, the procedure has been analysed as follows: "8. Chapter IX of the Code of Criminal Procedure hereinafter referred as the 'Code' in its Section 128 provides for enforcement of order of maintenance, but how was the order to be enforced has not been provided. 9. Section 128 reads: 128. Enforcement of order of maintenance--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 the person to whom the allowance is to be paid; and such order may be enforced by any Magistrate in any place where the CRL. REV. Pet. No. 20 of 2011 Page 11 of 13 11 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. 10. It. only provides for furnishing of copy of the order. It also provides that such order could be enforced by any magistrate at any place where the person against whom it was made may be, which only means that any magistrate of the place where the person may be may enforce the order on being satisfied, about the identity of the parties and also that the dues had not been paid. As said before how was the due to be recovered i.e. the procedure was not provided. 11. Under Chapter XXXII, Section 431 of the Code provides that "Any money (other than a fine) payable by virtue of any order made under this Code, and the method of recovery of which is not otherwise expressly provided for, shall be recoverable as if it were a fine." The proviso to Section 431 is not relevant here. The order for payment of maintenance was an order under the Code for payment of money, for the recovery of which no method had been expressly provided. Accordingly, under Section 431 of the Code, I think the maintenance money could be recovered, as if it were fine. 12. Section 421 of the Code provides for recovery of fine and the procedure laid down for the purpose was by issue of warrant for attachment and sale of any movable property belonging to offender, in this case the present Petitioner (opposite party in the maintenance proceeding) or issue of 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. The proviso to Section 421clearly stipulates that "no such warrant shall be executed by the arrest or detention in prison of the offender." 13. On consideration of the above provisions, there should be nodoubt that for recovery of money as maintenance which has to be in accordance with the procedure for recovery of fine no warrant of arrest or detention of the Petitioner could have been ordered. I, therefore think that the impugned order dated 1-9-89 was clearly erroneous and has to be set aside. 20. In view of the above discussion, it clearly transpires that the recovery of arrear maintenance dues can be ordered by the executing Court only when there is a refusal to make the payment in terms of the order passed by the Court. To pass an order for a recovery from the salary of the Petitioner without any refusal is apparently illegal exercise of power, which is not permissible in law. The Court while passing an ex parte order for maintenance allowance cannot direct the departmental head of the concerned employee to deduct the maintenance allowance from the salary of the employee, at the threshold, when initial order is passed. The Court while passing an ex parte order for maintenance allowance cannot direct the departmental head of the concerned employee to deduct the maintenance allowance from the salary of the employee, at the threshold, when initial order is passed. Any such compelling method of deduction of the maintenance allowance from an employee should be resorted to, only when there is a refusal and resistance, in making payment of the maintenance allowance. To resort to coercive procedure for execution of the order of the Court, without refusal and resistance by the Petitioner and without even issuing a notice, is uncalled for. 21. In view of the above discussions without further lingering the issue, I hold that the impugned order passed by the learned Judge, Family Court, Agartala warrants interference by this Court. Consequently, the impugned order is set aside and the matter is remanded back to the Family Court, Agartala with the direction to dispose of the prayer made by the Respondent for interim maintenance allowance as well as the prayer for maintenance allowance in accordance with law. 22. In the light of the above observations and directions, this petition stands disposed of. 23. Let a copy of this order be sent to the learned Judge, Family Court, Agartala immediately. 24. In order to avoid delay, parties are directed to appear before the learned Judge, Family Court, Agartala on 05.11.2011.