Research › Search › Judgment

J&K High Court · body

2020 DIGILAW 513 (JK)

Farooq Ahmad Khan v. Mahbooba Khan

2020-09-30

SANJAY DHAR

body2020
JUDGMENT Through the medium of this petition filed under Section 482 Cr. P. C, petitioner has challenged order dated 20.11.2019 passed by learned Judicial Magistrate 1st Class (City Judge), Srinagar, on an application filed by the respondent under Section 490 of the Jammu and Kashmir Code of Criminal Procedure. It has been further prayed that the entire proceedings initiated under Section 488 of Cr. P. C against the petitioner be quashed. Apart from this, the petitioner has also challenged the order dated 04.10.2017 passed by learned trial court whereby petitioner has been asked to pay interim maintenance to the respondent. A further prayer is made seeking necessary direction on an application stated to have been filed by the petitioner before the trial court on 10.11.2018 under the provisions of Section 476 read with Section 195 of the J&K Cr. P. C. 2) The facts emanating from the record reveal that the petitioner and respondent are legally wedded couple for the last 39 years. It appears that since the year 2014, the respondent (wife) is living separately from the petitioner (husband). It further appears that the respondent herein had filed an application for grant of interim maintenance in her favour against the petitioner herein on the grounds that she had been deserted by her husband in the old age and that she required an amount of Rs. 90,000/ to meet her day to day expenditure. It was the case of the respondent (wife) that the petitioner is a retired Deputy Commissioner and he is also owner of two hotels besides City School at Kakapora. The income of the petitioner was stated to be more than Rs.10.00 lacs per month. 3) The case of the petitioner (husband) before the trial court was that the respondent (wife) is the Manager and authorized signatory of Nausheen Guest House at Rajbagh, Srinagar. According to the petitioner, respondent earned a handsome income from the said Guest House as is evident from the bank statements which show that the income of the said Guest House is transferred to the personal account of the respondent. It was also contended that the respondent earns a rental income of Rs.15,000 per month from a flat owned by her in Zakir Nagar, New Delhi. On these grounds, it was urged that the respondent (wife) is capable of maintaining herself and her petition under Section 488 of J&K Cr. It was also contended that the respondent earns a rental income of Rs.15,000 per month from a flat owned by her in Zakir Nagar, New Delhi. On these grounds, it was urged that the respondent (wife) is capable of maintaining herself and her petition under Section 488 of J&K Cr. P. C is misconceived and had been filed only with an aim to harass the petitioner. 4) The record of the case reveals that vide order dated 04.10.2017, passed by learned trial court (Forest Magistrate), Srinagar, the respondent (wife) has been granted interim maintenance to the tune of Rs.15,000/ per month payable by the petitioner till disposal of the main petition under Section 488 of Cr. P. C. The order was challenged by way of a revision petition by the petitioner herein before the learned Principal Sessions Judge, Srinagar. The revision petition came to be dismissed in terms of order dated 27.04.2018. Feeling aggrieved of the said order, petitioner again tried his luck before this Court by filing a petition under Section 561-A Cr. P. C (CRMC No.176/2018). The said petition came to be dismissed by this Court in terms of order dated 11.09.2018. It seems that when the petitioner did not pay the amount of interim maintenance to the respondent on regular basis, the learned trial court passed order dated 20.11.2019 directing the attachment of his pension and pensionary benefits. It is this order, apart from other proceedings of the learned trial court, which is under challenge before this Court. 5) I have heard the learned counsel for the parties and perused the record of the case including the trial court record. 6) In the face of the fact that the order granting maintenance in favour of the respondent (wife) has attained finality, it is not open to this Court to entertain a fresh petition challenging the said order one more time. Similarly, the proceedings initiated by the respondent (wife) under Section 488 of Cr. P. C against the petitioner that are pending before the learned trial court cannot be interfered with at this stage. Needless to mention here that the pleas raised by the petitioner herein with regard to the means of respondent (wife) to maintain her are matters of trial and the same can be determined only by the learned trial court after recording evidence of the parties. Needless to mention here that the pleas raised by the petitioner herein with regard to the means of respondent (wife) to maintain her are matters of trial and the same can be determined only by the learned trial court after recording evidence of the parties. The petitioner by raking up these issues repeatedly by filing successive petitions before this Court is abusing the process of the Court which deserves to be deprecated. 7) The contention of the learned counsel for the petitioner that because learned trial court has not been able to dispose of the case within six weeks in terms of order dated 11.09.2018 passed by this Court offers a justification for quashing of the proceedings pending before the trial court, is without any merit. The trial court record shows that the parties have resorted to filing of a number of ancillary proceedings in the form of interim applications and transfer petitions which have consumed much time of the said Court thereby stalling the progress of the main case. Apart from this, factors like law and order situation in Srinagar during the last year and the prevailing COVID-19 pandemic, have also contributed towards delay in disposal of the case. Even otherwise, delay in disposal of the case by the trial court cannot be a ground to quash the proceedings pending before the said court. 8) That takes us to the legality of order dated 20.11.2019 passed by the learned trial court, whereby, on an application filed by the respondent (wife) under Section 490 of the Jammu and Kashmir Code of Criminal Procedure for execution of order of interim maintenance, the concerned Treasury Officer has been directed to stop the payment of pension and other pensionary benefits to the petitioner herein till the petitioner makes payment of arrears of maintenance to the respondent. It has been contended by the learned counsel for the petitioner that the impugned order is without jurisdiction, inasmuch as pension and pensionary benefits of the petitioner could not have been directed to be stopped. According to the learned counsel, in the first instance, the learned trial court should have resorted to attachment of any other property of the petitioner. It has been contended by the learned counsel for the petitioner that the impugned order is without jurisdiction, inasmuch as pension and pensionary benefits of the petitioner could not have been directed to be stopped. According to the learned counsel, in the first instance, the learned trial court should have resorted to attachment of any other property of the petitioner. 9) On the other hand, learned counsel for the respondent has argued that the maintenance allowance granted in favour of the wife cannot be considered as debt and, as such, it was open to the learned trial court to attach the pension and pensionary benefits of the petitioner in order to recover the arrears of maintenance in favour of the respondent. Learned counsel has relied upon the judgment of the High Court of Bombay in Bhagwant v. Radhika, 2019 SCC Online Bom 607 and the judgment of the High Court of Gujarat in the case of Ashokbhai Devsingbhai Chauhan v. Taraben Ashokbhai Chauhan, MANU/GJ/2782/2019. 10) So far as the proceedings under Chapter XXXVI of the J&K Cr. P. C are concerned, the same are quasi-civil in nature. Section 488 of the J&K Cr. P.C is designed to provide maintenance to the destitute wives who are unable to support themselves. The maintenance amount granted under the said provision is required to be recovered in accordance with the procedure prescribed under sub-section (3) of Section 488 of the J&K Cr. P. It reads as under: “(3) 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 month’s 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. Provided further if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing 11) From the afore-quoted provision, it is clear that the procedure for recovery of maintenance amount is the same as provided for levy of fines. 12) Section 386 of the J&K Cr. P. C provides the mode of recovery of fines. It reads as under: “386. Warrant for levy of fine.—(1) Whenever 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 realize the amount by execution according to civil process against the movable or immovable property, or both, of the defaulter: Provided that, if the sentence directs that in default of payment of fine the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless for special reasons to be recorded in writing it considers it necessary to do so. (2) The Government] may make rules regulating the manner in which warrants under sub-section (1), clause (a), are to be executed, and for the summary determination of any claims made by any person other than the offender in respect of any property attached in execution of such warrant. (2) The Government] may make rules regulating the manner in which warrants under sub-section (1), clause (a), are to be executed, and for the summary determination of any claims made by any person other than the offender in respect of any property attached in execution of such warrant. (3) Where the Courts issue a warrant to the Collector under sub-section (1), clause (b), such warrant shall be deemed to be a decree, and the Collector to be the decree-holder, within the meaning of the Code of Civil Procedure, 1977, and the nearest Civil Court by which any decree for a like amount could be executed shall, for the purposes of the said Code, be deemed to be the Court which passed the decree, and all the provisions of that Code as to execution of decrees shall apply accordingly : Provided that no such warrant shall be executed by the arrest or detention in prison of the offender 13) From a perusal of the aforesaid provision, it is clear that a Court can adopt two modes for recovery of amount of maintenance from the husband. One by issuing a warrant for the levy of the amount by attachment and sale of any movable property belonging to the husband and second by issuing a warrant to the Collector of the District authorizing him to realize the amount by execution against the movable or immovable property, or both, of the husband. 14) The question arises whether the learned trial court was within its jurisdiction to attach the pension and pensionary benefits by adopting the mode of attachment of movable property belonging to the petitioner (husband). Having regard to the nature of the proceedings, a wide interpretation has to be given to the expression “movable property” appearing in Clause (a) of Section 386(1) of the Cr. P. C, so as to include within its ambit salary, pension and pensionary benefits. However, it has to be seen as to at what stage pension and pensionary benefits of a person become his movable property. This question was considered by the Supreme Court in the case of Union of India v. Jyoti Chit Fund & Finance, AIR 1976 SC 1163 . Para 11 of the said judgment is relevant to the context and the same is reproduced as under: “11. This question was considered by the Supreme Court in the case of Union of India v. Jyoti Chit Fund & Finance, AIR 1976 SC 1163 . Para 11 of the said judgment is relevant to the context and the same is reproduced as under: “11. We may state without fear of contradiction that provident fund amounts, pensions and other compulsory deposits covered by the provisions we have referred to, retain their character until they reach the hands of the employee. The reality of the protection is reduced to illusory formality if we accept the interpretation sought. We take a contrary view which means that attachment is possible and lawful only after such amounts are received by the employee. If doubts may possibly be entertained on this question, the decision in Union of India v. Radha Kissen Agarwal & Anr. erases them. Indeed our case is an a fortiori one, on the facts. A bare reading of Radha Kissen makes the proposition fool-proof that so long as the amounts are Provident Fund dues then, till they are actually paid to the government servant who is entitled to it on retirement or otherwise the nature of the dues is not altered. What is more, that case is also authority for the benignant view that the government is a trustee for those sums and has an interest in maintaining the objection in court to attachment. We follow that ruling and over-rule the contention.” 15) From a perusal of the afore-quoted observations of the Supreme Court, it is clear that so long as the pension and pensionary benefits are not actually paid to a pensioner, the same do not become movable property of the pensioner which means that until the pension and pensionary benefits are not credited in the bank account of the pensioner or are paid in cash to him, the said pension and pensionary benefits cannot be attached. I am supported in my aforesaid view by the judgment of this Court in the case of Director General, J&K Funds Organization v. Mst. Kulsuma Bano & Ors., 2015 (II) S.L.J 886 (HC). I am supported in my aforesaid view by the judgment of this Court in the case of Director General, J&K Funds Organization v. Mst. Kulsuma Bano & Ors., 2015 (II) S.L.J 886 (HC). While relying upon the observations of the Supreme Court in Jyoti Chit Fund & Finance (supra), the Court quashed the order of the Magistrate whereby the Magistrate had directed withdrawal of an amount of Rs.28,000/ from the GP Fund Account of the husband in connection with recovery of arrears of maintenance in favour of the wife. 16) In the light of the legal position discussed hereinbefore, let us now advert to the facts of the instant case. By virtue of the impugned order, learned Magistrate has directed the Treasury Officer to stop the pension and pensionary benefits of the petitioner (husband). Such a direction is patently contrary to the legal position discussed hereinbefore, inasmuch as the pension and pensionary benefits pertaining to the petitioner have been attached at a stage when the same are yet to be disbursed in his favour. It is one thing to direct attachment of pension and pensionary benefits when the same are yet to be disbursed by the Treasury Officer and it is entirely a different thing to attach the said benefits when they are credited into the bank account of the pensioner. The former is not permissible under law whereas the later mode can be resorted to while enforcing an order of recovery of maintenance. 17) For the foregoing reasons, the petition is partly allowed and the order dated 20.11.2019, passed by learned trial Magistrate, is set aside. It shall be, however, open to the learned trial Magistrate to enforce the execution of order of interim maintenance including the arrears thereof by directing attachment of the pension and pensionary benefits of the petitioner after the same are credited to his account or are paid to him as also by directing attachment of any other property of the petitioner or by any other mode permissible under law. 18) The trial court record along with copy of this order be sent back.