P.G. Agarwal, J.@mdashThis Criminal Revision is directed against the Order passed on 7.11.92 and directions for attachment of salary of the Petitioner passed in Case No. 82m/81 u/s 125 Code of Criminal Procedure
2. Heard learned Counsel for the Petitioner. None appears for the Respondent.
3. On 24.10.81 the Respondent Mustt. Ragia Begum filed an application u/s 125 Code of Criminal Procedure claiming maintenance for herself and her minor children. As the Petitioner husband did not contest the proceeding inspite of receipt of notice, the learned Trial Court by Order dated 13.1.82 directed the Petitioner to pay the monthly maintenance of Rs. 200/- to the applicant Ragia Begum.
4. As per the Order the amount of maintenance was deducted from the salary of the Petitioner who is the Government Servant and from 1982 to 1985 Respondent was paid the maintenance by deducting me amount from the salary. Since July'' 85 maintenance was not paid and on the prayer of the Respondent warrant of arrest and fresh order of attachment of salary of the Petitioner were issued and hence the present revision.
5. In this petition the Petitioner has made certain statements regarding divorce etc. which cannot be considered and decided in this revision. The Petitioner, if so advised may take recource to Section 127 Code of Criminal Procedure
6. The first contention raised before me is that u/s 125(3) Code of Criminal Procedure amount of maintenance for period exceeding one year cannot be recovered, in view of the Specific provision of Section 125(3) Code of Criminal Procedure it is well settled that when an application for recovery of arrears of maintenance is made for a period of more than one year, only such arrears as related to one year prior to the date of filing of an application can be recovered by an attachment of property and this limitation is in respect of attachment of property only. It is not applicable so far sentencing of husband for default to imprisonment, for recovery of arrear due is concerned. I have perused the order sheet and find that from 1985 to till filing of this revision petition, the Petitioner appeared before the Court on each and every date and on each occasion prayed for recovery of the maintenance granted to her. It was the revision Petitioner/2nd party, who delayed the matter by remaining absent or avoiding the process of the Court. The warrant of attachment of salary etc was stayed by this Court vide interim Order dated 24.2.93. The amount due from 24.2.93 till to-day is recoverable and the Respondent wife shall be entitled to the same. It is well settled that any stay or stay granted by the Court cannot act adversely against the party and particularly against the deserted wife. The next contention of the learned Counsel for the Petitioner is that Petitioner is a Government servant and the issuance of warrant of attachment of salary for the purpose of the recovery of arrear of maintenance is not permissible under the law. In support of his submission, reference has been made to a decision in the case of Ali Khan v. Smt Hazambi reported in 1981 Cri.LJ. 682. There is no specific bar for attachment of salary u/s 125(3) Code of Criminal Procedure. The provision u/s 125 Code of Criminal Procedure are in the nature of social welfare measure such as speedy relief to the needy i.e. deserted wife, minor child as well as parents etc. In the case of Yerasuri Lakshminarayana Murty 1986 Criminal Law Journal, Page 1846 the Hon''ble Andhra Pradesh High Court held as follows:
Section 125 is designed to provide maintenance to the wife who is unable to support herself. Therefore, it is imperative on the part of the person against whom the decree for payment is passed to comply with the decree. Section 125(3) provides for enforcement of the decree by attachment of any movable property. Movable property must be given a wide interpretation and salary cannot be excluded from its category. Therefore, salary of the husband can be attached u/s 125(3) for payment of maintenance to the wife.
7. In the instant case the wife was deserted soon after the marriage. Further, the Respondent is the second wife of the Petitioner who had married her during the life time of the 1st wife taking advantage of personal Law. The Petitioner is serving at different places of Assam whereas the Respondent is forced to take shelter at Nalbari. Since 1985, the Respondent is knocking the door of the Court but the Petitioner has evaded payment. The order of maintenance as passed by the Court on 13.1.82 in an existence till to-day and the Petitioner is liable to pay maintenance as per the direction of the Court
8. In the case of Smt. Kuldip Kaur v. Surinder Singh and Anr. AIR 1989 SC 282 the Apex Court observed that liability cannot be taken to have been discharged by sentencing the person liable to pay monthly allowance. To sentence a person to jail is a mode of enforcement. The liability can be satisfied only by making actual payment of the arrears. The whole purpose of sending to jail is to oblige a person liable to pay the monthly allowance who refuses to comply with the order without sufficient cause, to obey the order and to make the payment.
9. In the case of
10. In the light of the above observations, the attachment of salary of a person, ordered to pay the maintenance, is permissible.
11. In the result I find no merit in this revision. Accordingly revision petition is dismissed. The trial Magistrate Nalbari is directed to proceed with the matter for recovery of the maintenance due.
Send down the case record.
