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Om Parkash vs Javitri Devi on 15 December, 2017

Crl. Revision (F) 279 of 2017 1

IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH

Crl. Misc. 22247 of 2017 in/and
Crl. Revision (F) 279 of 2017 (OM)
Date of decision: December 15, 2017

Om Parkash
…Petitioner
Versus
Javitri Devi
…Respondent

CORAM:- HON’BLE MS. JUSTICE JAISHREE THAKUR

Present: Mr. Virender Kumar, Advocate,
for the petitioner.

Mr. Satya Vir Singh Yadav, Advocate,
for the respondent.

JAISHREE THAKUR, J.

Crl. Misc. 22247 of 2017

For the reasons stated in the application, delay of 48 days in

filing the revision is condoned.

Main case

1. The petitioner herein seeks to challenge order dated 03.03.2017

passed by the District Judge, Family Court, Karnal, by which a application

for interim maintenance filed by the respondent has been allowed and the

respondent has been granted interim maintenance of `4000/- per month from

the date of filing of the petition along with litigation expenses.

2. In brief, the facts are, that the petitioner and the respondent

solemnized a marriage around forty years ago and out of this wedlock a

female child was born. After the respondent was turned out of her

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matrimonial home, she started to reside with her daughter in Karnal. Having

no source of income, she filed a petition under section 125 of the Code of

Criminal Procedure (for short ‘the Code’) seeking maintenance, along with

an application for interim maintenance. The respondent-wife alleged that

she has no source of income, whereas the petitioner has retired from HUDA

and has a pension, hence she would be entitled to receive maintenance. The

petitioner contested the matter stating that the respondent had not come to

court with clean hands and in fact she had left the matrimonial home of her

own accord. The District Judge Family Court, Karnal, held that the

petitioner is liable to pay 50% of his pension received to his destitute wife as

interim maintenance. Aggrieved against the said order the instant revision

petition has been filed.

3. Mr. Virender Kumar, learned counsel appearing on behalf of the

petitioner, argues that the maintenance, as assessed, is on the higher side as

the petitioner has a pension of `9,500/- per month and has to maintain

himself by paying for electricity, water and other commodities. It is

submitted that a sum of `2,00,000/- had been deposited in the shape of a

Fixed Deposit in favor of the respondent and apart from that he had given a

sum of `1,00,000/- to her. It is submitted that he had given a sum of `10,

00,000/- to his son-in-law for purchasing a plot in Delhi and the entire

transactions had been met out of his retiral benefits. It is argued that apart

from transferring funds, a house was purchased in the name of the

respondent and their daughter Munni Devi and the petitioner had transferred

the said house in favor of her daughter. It is argued that the petitioner has a

meager pension of `9,500/- per month. It is also argued that the District

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Judge, Family Court, has erred in awarding 50% of the pension when in fact

pension cannot be attached. It was also brought to the notice of this court

that condition warrants of arrest have been issued, vide order dated

12.9.2017, against the petitioner by the District Judge, Family Court,

Karnal, during the pendency of the proceedings in the this Court, for not

making payment of interim maintenance, under an application filed under

Section 125 (3) of the Code.

4. Per contra, learned counsel appearing on behalf of the

respondent/wife has argued that the petitioner being the legally wedded

husband of the respondent/wife, is under a legal and moral obligation to

maintain his wife. It is argued that he is getting a pension of `9,500/- per

month and the respondent having no source of income is entitled to be

maintained out of the said pension. He relies upon judgment rendered in

Ram Kanvar versus M/s Ram Richhpal Banarsi Dass 2002 (2) Civil

Court Cases 719, wherein there was a challenge in the revision petition

against an order passed by the executing court directing the Treasury Officer

to remit the amount of two third pension of the judgment-debtor/petitioner

till realization of the decretal amount. It is contended that pension can be

attached to satisfy the maintenance amount due and payable to the

respondent.

5. I have heard the learned counsel for the parties and have also

perused the judgment relied upon.

6. An argument has been raised by the counsel for the petitioner,

that the pension of the petitioner cannot be attached. It is submitted that the

District Judge erred while relying on the judgment rendered in Vijay

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Kumar Versus State of Punjab and others reported as 2013 (3) RCR

(Civil) 323 wherein the Division Bench of this court ordered 50% of the

salary of an employee to be deducted and the said amount paid to his

destitute wife under Section 125 of the Code. It is argued that the said

judgment would not be applicable since pension cannot be attached.

7. Under the circumstances, a question that arises for

consideration in this case is, whether the District judge has erred in

awarding 50% of the pension of the petitioner, to the respondent/wife as

maintenance?

8. Section 11 of the Pension Act 1871 reads as:

“11. Exemption of pension from attachment.- No pension
granted or continued by Government on political
considerations, or on account of past services or present
infirmities or as a compassionate allowance, and no money due
or to become due on account of any such pension or allowance,
shall be liable to seizure, attachment or sequestration by
process of any Court at the instance of a creditor, for any
demand against the pensioner, or in satisfaction of a decree or
order of any such Court.

Section 11 of the Pension Act 1871 protects the pension of a person from

seizure, attachment or sequestration by process of any Court at the instance

of a creditor, for any demand against the pensioner, or in satisfaction of a

decree or order of any such Court. Section 60 CPC allows for attachment

of property and its sale in execution of a decree. Section 60(1) CPC

specifies following property as liable to attachment and sale in execution of

a decree, namely, lands, houses or other buildings, goods, money, bank

notes cheques, bills of exchange, hundis, promissory notes, Government

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securities, bonds or other securities for money, debts, shares in a corporation

and, save as hereinafter mentioned, all other saleable property, movable or

immovable, belonging to the judgment debtor, or over which, or the profits

of which, he has a disposing power which he may exercise for his own

benefit, whether the same be held in the name of the judgment debtor or by

another person in trust for him or on his behalf. However certain properties

are exempt to such attachment or sale and 60 (1) (g) of the CPC is one such

exception which reads as,

“(g) stipends and gratuities allowed to pensioners of the
government or of a local authority or of any other employer, or
payable out of any service family pension fund notified in the
official gazette by the central government or the state
government in this behalf, and political pension.”

9. Both Section 11 of the Pension Act of 1871 and Section 60

CPC, protect the pension of a person from attachment. The earlier view

taken by the Supreme Court in a judgment rendered in (1976) 3 SCC 607

Union Of India Vs. Jyoti Chit Fund and Finance and another was that

that provident fund amounts, pensions and other compulsory deposits retain

their character until they reach the hands of the employee and thereafter

could be attached in the hands of the pensioner :

“12. 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

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entertained on this question, the decision in Radha
Kissen [Union of India v. Radha Kissen Agarwalla, (1969) 1
SCC 225 : (1969) 3 SCR 28] erases them. Indeed, our case is
an a fortiori one, on the facts. A bare reading of Radha
Kissen makes the proposition foolproof 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 overrule the contention”.

This view was subsequently watered down in the judgment rendered in

Union of India Versus Wing Commander R.R Hingorani (1987) 1 SCC

571. In Wing Commander R.R Hingorani certain dues were payable by

the government servant on his retirement towards occupation of his official

accommodation. Since dues towards occupation of the said premises were

not cleared before his retirement the government sought to recover the same

from his pension which was commuted. It was in this background that the

matter eventually reached the Supreme Court where it was held that no

recoveries could be made from the commuted pension payable to the

respondent, which was clearly against the terms of Section 11 of the Pension

Act, 1871.

10. Another judgment followed in case of a Radhey Shyam Gupta

versus Punjab National Bank (2009) 1 SCC 376 in which it has been held,

that pension and gratuity even when received by a retiree, do not lose their

character and would continue to be covered under proviso to Section 60 (1)

(g) of the CPC. This ratio was laid down while considering the judgments

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rendered in Jyoti Chit Fund and Wing Commander R.R Hingorani. The

former judgment was dissented with, while approving the ratio as laid down

in Wing Commander R.R Hingorani.

11. The judgment rendered in Vijay Kumar Versus State of

Punjab reported as 2013 (3) RCR (Civil), as relied upon by the counsel

appearing on behalf of the respondent, is not applicable in the instant case

since that pertained to attachment of salary to pay maintenance under

Section 125 of the Code, whereas the petitioner herein is a retiree and not

earning a salary.

12. Section 125 of the Code of Criminal Procedure has been

enacted to ensure that a wife, minor child or old-age parents are maintained

and not subjected to vagrancy and destitution. Grant of maintenance to the

wife has been perceived as a measure of social justice by the courts and the

said section falls within the constitutional sweep of Article 15 (3) reinforced

by Article 39 of the Constitution of India. It provides speedy remedy for

supply of food court clothing shelter to the deserted wife while ensuring that

the husband fulfills his moral and legal obligation to support his family be it

a minor child, wife or aged parents. So in that background there is no

infirmity in the order of the District Judge awarding interim maintenance.

The final maintenance has still to be settled after taking into account the

capacity of the petitioner to pay maintenance as well his liabilities. There is

only an embargo, as enacted in Section 11 of the Pension Act and under

Section 60 (1) (g) CPC, to attaching of pension in satisfaction of the said

amount.

13. In view of the discussion held above, a deserted wife would be

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entitled to maintenance under Section 125 of the Code, which has been

allowed in the instant case. At the moment only conditional warrants of

arrest have been issued and as on date there is no order of attachment of

pension. It is only in those circumstances that the petitioner could have

challenged the same by relying upon the judgments referred to above.

14. Therefore, finding no infirmity in the order dated 3.3.2017 and

the order dated 12.9.2017, no interference is called for. Dismissed.

December 15, 2017 (JAISHREE THAKUR)
prem JUDGE

Whether speaking/reasoned Yes
Whether reportable Yes

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