1 Cri.Rev.No.941/13 HIGH COURT OF MADHYA PRADESH BENCH AT GWALIOR ***
Present HON. SHRI JUSTICE B.D.RATHI *** (Cri. Rev. No.941/2013) Anil Jain Vs.
Shilpa Jain Shri R.K.Jain, Advocate for the petitioner.
Shri Pradeep Katare, Advocate for the respondent.
O rder (Passed on 11th of November, 2014) Per B.D.Rathi, J. –
“By allowing this petition, the order impugned dated 01-11-2013 passed by Executing Court and the letter dated 30-07-2013 issued by learned JMFC, Ambah District Morena be set aside.”
(2) Facts in brief are that respondent/wife has filed an application under Section 125 of the Code claiming maintenance from petitioner which was registered as MJC NO.95/2009. The aforesaid application filed by the respondent was allowed by the trial Court and petitioner was directed to pay maintenance to the tune of Rs.10,000/- per month from the date of filing of application. Since the order of trial Court was not complied with by the petitioner therefore, respondent has moved an application under Section 128 of the Code for the purpose of recovery of maintenance from the petitioner. On the aforesaid application, trial Court has issued a letter dated 30-07-2013 directing the Branch Manager to deduct Rs.10,000/- p.m. from the salary of petitioner and be credited in the account of respondent without issuing show cause notice to the petitioner.
(3) Counsel for the petitioner submitted that the order dated 30-07-2013 passed by learned trial Court ordering to deduct Rs.10,000/- per month under the head of maintenance from the account of petitioner is arbitrary and contrary to law. It is further submitted that since the respondent is living separately from the petitioner without any cause, therefore, she is not entitled for any maintenance. It is also submitted that since the decree of divorce has been passed between the parties, therefore, respondent is not entitled for any maintenance from the petitioner. Thus, the order/letter impugned passed/issued by the learned trial Court is sought to be set aside. It is also submitted that application of the petitioner to recall the letter dated 30/7/2013 was also dismissed vide order dated 1/11/2013 by the Executing Court.
(4) Combating the submission of petitioner’s counsel, counsel for the respondent submitted that the order dated 23-08-2012 passed by learned trial Court granting maintenance to the respondent has already been put to challenge by the petitioner up to this Court which was dismissed by this Court in M.Cr.C.No.7439/2012. Hence, he prayed for dismissal of petition.
(5) Having regard to the arguments advanced by learned counsel for the parties, entire record has been perused.
(6) The following incidental questions are arising in this petition to the effects:-
“(i) Whether without affording opportunity of hearing, the impugned order could be passed ?.
(ii) Whether ground of separate living without any sufficient reason by the respondent-wife had to be considered by the trial court before passing the impugned order?.
(iii) Whether, divorced wife has right to get maintenance ?.
(iv) Whether future salary could be ordered to be attached to meet out the maintenance amount ?.
Question No.(i) (7) To examine the principal controversy involved in the matter, the record of the trial court (MJC No.18/12) has been perused.
(8) On perusal of the record it seems that on 21/9/2012 an application under section 128 of Cr.P.C. was preferred for recovery of the awarded amount of maintenance. So, in order to understand the controversy, the provisions of sections 125(3) and 128 of Cr.P.C. are relevant to be considered. Both these provisions are supplementary to each other and show that the order of maintenance can be made enforceable with the help of these two provisions.
(9) Firstly, the provisions given in section 125(3) of Cr.P.C. is taken up. Same runs as follows:-
Order for maintenance of wives, children, and parents.-
(1) xxxx xxxx xxxx (2) xxxx xxxx xxxx
(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 for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] 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 that 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.
Explanation.-If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him.
(10) The opening word employed in section 125 (3) of Cr.P.C. lays down specifically that “if any person so ordered fails without sufficient cause to comply with the order, then Magistrate may, for every breach of the order, issue a warrant for levying the amount.
(11) On coming to this particular case, a perusal of the original record indicates that show-cause notice was not given to the petitioner before passing the order of attachment of his salary. Therefore, the impugned order is not sustainable in the eyes of law not only because the order impugned was passed in contravention of the provisions of section 125(3) of Cr.P.C. but on the ground that no opportunity of hearing was afforded to the petitioner before taking any stringent action against him. It clearly violates the principles of natural justice. Apart that under provisions of section 128 of Cr.P.C. it was also mentioned that until and unless the Magistrate is not satisfied with non-payment of allowance, he cannot proceed for enforcement of the order of maintenance by issuing attachment warrant, meaning thereby the satisfaction of the Magistrate is mandatory which could be achieved only after following due procedure as established by law. Therefore, on this sole ground, the impugned order cannot be allowed to stand and is liable to be set aside.
Question No.(ii) (12) Admittedly, the order passed in favour of the respondent-wife under section 125 of Cr.P.C. for grant of maintenance was challenged by the petitioner in Cri. Rev. No.168/12 and same was dismissed on 23/8/12 from the court of Additional Sessions Judge, Ambah, district Morena. Thereafter, M.Cri.C.No.7439/12 was preferred and same was again dismissed by this court vide order dated 13/8/2013 in conformity with the order of maintenance passed in favour of the respondent-wife. Therefore, at the time of recovery proceedings the second question was not germane to be considered.
(13) Before reaching on the conclusion to decide the aforesaid question as to whether a divorced wife can claim maintenance from her husband, the definition of wife has been given under the Explanation of provision under sub-section (1) of section 125 of Cr.P.C.
(14) The expression wife includes a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried. Aforesaid provision was enacted in order to provide a quick and summary remedy so that the divorced woman gets sufficient means of livelihood, after the divorce and, therefore, something is provided in advance to contemplate the future needs.
(15) Hence, a careful reading of the provisions of the Act would indicate that a divorced woman is entitled to a reasonable and fair amount of maintenance. Same would extend to the whole life of the divorced wife unless she gets married for a second time.
(16) Now the fourth question remains whether attachment of future salary could be ordered by the court under the Act.
(17) The future salary is not tangible corporeal property available for seizure. Only when the salary become payable and takes shape of tangible corporeal property, it can be attached for realisation of arrear as well as current maintenance according to provisions of section 421(1)a) of Cr.P.C.
(18) In this case by the letter dated 30/7/2013 addressed to the Branch Manager of Bank of India Krishi Upaj Mandi, Branch Narsinghgarh Road, Sihore, district Sihore the directions were issued to the concerning Bank to deduct monthly amount of Rs.10,000/- from the salary of the petitioner-Anil Jain to meet out the recovery sum and after deduction the amount be sent to the court. From the language it is clear that attachment order of future salary was passed against the petitioner. Attachment of future salary is not permissible under the law. On this count, the impugned letter dated 30/7/2013 (Annexure-A/1) is also liable to be set aside.
(19) Accordingly, the petition is allowed. The impugned letter dated 30/7/2013 (Annexure-A/1) stands hereby set aside to the extent that the amount if any deducted so far from the salary of the petitioner pursuant to such letter/impugned directions dated 30/7/2013 by the Bank, same be treated and adjusted from the total arrears of the maintenance amount outstanding against the petitioner. The Executing Court is directed to consider the matter afresh after giving due opportunity of hearing to both the parties and thereafter pass a fresh order in accordance with law. Parties are directed to remain present before the Executing court on 12/1/2015.
(20) The record of the case be sent back alongwith a copy of this order to the trial court for compliance.
(B.D.Rathi) Judge (Bu)