Future pay cannot be attached to recover maintenance arrears.

IN THE HIGH COURT AT CALCUTTA

Criminal Revisional Jurisdiction
Appellate Side
Present:The Hon’ble Justice Ashim Kumar Roy

C.R.R. NO. 399 of 2007

Amal Mukherjee
versus
Pranati Mukherjee & Anr.

For Petitioners : Mr. Jayanta Nath Saha For O.P. No. 1 : Mr. Subhasish Chakraborty Ms. Shreyashi Biswas
Mr. Soumya Chakraborty
Ms. Sasita Halder

Heard On : August 26th, 2008.

Judgment On : 12-11-2008.

In connection with a maintenance proceeding under Section 125 of the code of Criminal Procedure, the present petitioner was directed to pay a sum of Rs. 2,000/- per month to his wife, the opposite party herein as her monthly maintenance. Since the petitioner allegedly made no payment the wife/opposite party moved an application under Section 125 (3) of the Code of Criminal Procedure before the court concerned for enforcement of the said order and for realization and recovery of the amount due i.e. a sum of Rs. 22,000/- relating to the period from February 2005 to December 2005, which give rise to Misc. Case No. 50 of 2006 and the Learned Additional Presiding Judge, Family Court, Calcutta made an order directing that a sum of Rs. 1,000/- per month be deducted from the pension account of the petitioner and be credited to the savings account of the wife/opposite party on and from January, 2007 during the coming 22 months towards the recovery of arrears maintenance in addition to Rs. 2,000/- per month which has already been directed to be deducted from the pension account of the petitioner towards the payment of future maintenance. The petitioner challenged the said order on the ground in default of payment of maintenance allowance and for recovery of the same the future pension cannot be attached.

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2. Heard the learned advocates appearing on behalf of the parties. Perused the impugned order as well as other materials on record. Considered their respective submissions.

3. In the case of Md. Jahangir Khan Vs. Mst. Manoara Bibi, reported in 1992 Cri L.J. 83, a Division Bench of our High Court held that the future salary not being a tangible corporeal property the same cannot be attached for recovery of the arrear maintenance.

4. It may be noted that the Learned Judge also in her order observed that no future income can be attached as she was of the view since same was not salary but was pension to which the petitioner is entitled during her lifetime the same can be attached. In this regard the observations made by the Division Bench of our High Court in the aforesaid case of Md. Jahangir Khan Vs. Mst. Manoara Bibi (supra) would be very relevant and is quoted below; Para 13. “A single Judge of Orissa High Court relying on a Karnataka decision in Rudraiah V. Muddagangamma, 1985 Cri LJ 707 sought to make a synthesis in Surekha V. Ramahari, 1990 Cri LJ 639. His Lordship while agreeing that only tangible corporeal property could be attached held that salary when becomes due was liable to attachment. According to the learned Judge, writ of attachment should remain dormant and would revive at the end of the month. With deep respect to the learned Judge, we cannot accept his view for the foregoing reasons. On similar reasons, we are unable to agree with the finding of the referring Judge.”

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5. Thus, the future pension of the petitioner not being tangible and still not been earned by him same cannot be attached.

6. The impugned order is thus set aside and accordingly the criminal revision is allowed.

The Learned Judge is directed to proceed with the matter against the petitioner who is in alleged default of making payment of maintenance allowance and to enforce the order of maintenance in accordance with the provisions of Section 125 (3) of the Code of Criminal Procedure. Both the parties are directed to appear before the court concerned within fortnight from this date and the Learned Magistrate is directed to take necessary steps immediately thereafter. In view of the disposal of the main criminal revision C.R.R. No. 399 of 2007, the application for modification and/or variation of the order dated February 2007 passed by the Hon’ble Mr. Justice P.N. Sinha being CRAN No. 1800 of 2007 stands disposed of.

Urgent xerox certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible.

( Ashim Kumar Roy, J. )

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