Madhav Kumar Anand, Jammu vs Sudesh Kumari, Advocate, District Courts, Amritsar

M.M. Punchhi, J.—I had at one occasion heard Criminal Revision Nos. 495 and 822 of 1983 and reserved judgment. In the meantime, the Petitioner filed Criminal Miscellaneous No. 184-M of 1984 which had intimate bearing with the afore-referred to Criminal revisions. Since after notice of motion, Criminal Miscellaneous No. 184M of 1984 had been placed before me and I had issued notice thereon, I ordered in the fitness of things fixation of the aforesaid two criminal revisions for re-hearing. Now all the aforesaid three matters are being disposed of by a common order.

This is an acrimonious litigation between Madhav Kumar Anand, the Petitioner, and his wife Sudesh Kumari, Respondent. Undisputedly, the parties were married on 9.10.1976 at Amritsar. At that time, the Petitioner was a Stenographer working with the Income Tax Department at Amritsar. The Respondent, was in a temporary, employment with a private school. Though the Petitioner claims no knowledge of it, the Respondent claims that a female child was born to them on 26.11.1978. The parties had lived together at Amritsar till 21.6.1978 and thereafter the Respondent had gone to her mother''s house within Amritsar itself In August, 1978. the Petitioner was transferred to Jammu and Kashmir State in the Office, of the Income Tax Officer, Srinagar, and the said child was born thereafter. He has been in that State till this day. Statedly, the Respondent never lived with the Petitioner after 21.6.1978.

On 18.9.1979, the Respondent and her infant daughter Sheetal, through her, filed an application u/s 125, Criminal Procedure Code, before Judicial Magistrate 1st Class, Amritsar. The Petitioner herein contested that petition tooth and nail. The learned Magistrate in his order dated 14.1.1981 opined that there was sufficient reason for the applicants to live separately from the Respondent (present Petitioner) and thus they were entitled to claim maintenance. He observed that the total salary of the Petitioner at that time was Rs. 756.40 P. On that account, he opined that a sum of Rs. 200/- for the Respondent and Rs. 50/- for her infant daughter were sufficient for their maintenance. He thus allowed maintenance to the applicants from the date of the application. The Petitioner challenged the said order before the Court of Session, Amritsar in revision but the same was dismissed. No further step was taken by the Petitioner and thus the order became final.

On 6.4.1981, the Respondent filed the first execution application before the learned Magistrate Notice was issued by the learned Magistrate to the Petitioner. He raised objections before the learned Magistrate. Those in nutshell were that since he was residing in the State of Jammu and Kashmir, outside the territorial jurisdiction of the Court, the maintenance order was not executable, as in that territory the Code of Criminal Procedure was not applicable as also two-third of his salary could not be attached as had been done by the Court. Additionally, he pleaded that the Respondent had in the meantime become a practising lawyer and become an earning hand disentitling her to maintenance The learned Magistrate vide his order dated 3.12.1981 rejected all the objections by holding that the Petitioner could be legally proceeded despite the fact that the Code of Criminal Procedure, 1973 did not extend to the State of Jammu and Kashmir. He further observed that the Petitioner was not employed by the Jammu and Kashmir Government but was rather an employee of the Central Government and could be posted to any State where the Code extended. With regard to the attachment of two third salary of the Petitioner, he observed that there was no legal ban for the purpose and that if he was aggrieved against the order of attachment of his salary, he could challenge the same in. any higher Court. Regarding the Respondent having become an Advocate, he observed that she was only working as an apprentice with a lawyer but if the Petitioner wanted any alteration in the maintenance allowance on that score, he could regularly apply for the purpose. For the afore-referred to views, he dismissed the objection petition. The Petitioner challenged the said order in this Court in Criminal Revision No. 37 of 1982 but the same was dismissed in limine on 12.1.1982 He made another attempt to get the order upset by approaching the Court of Session for the purpose but that petition too was dismissed in limine as being time-barred and without jurisdiction.

As observed earlier, the salary of the Petitioner to the tune of two-third of his basic pay had been attached under orders of the learned Magistrate with effect from August, 1980 in order to satisfy the first execution petition. On 1.7.1982, the Respondent filed the second execution petition for the period of 12 months commencing from 17.5.1981 to 18.5.1982. The Petitioner therein again objected to the executability of the order on the ground that the Respondent was a practising lawyer and there was no cause for her to be claiming -maintenance from him especially when he had parents to support. He simultaneously prayed that pending his objection petition, the implementation of the maintenance order be stayed. The learned Magistrate, being influenced by the dismissal of the revision petition (Cr. R No. 17 of 1982) on 12.1.1982, refused to stay the operation of the impugned order. With regard to the main objection petition, he observed that the same would be decided on merits. The Petitioner challenged the said order of refusal to stay his filing Criminal Revision Petition No. 495 of 1983 in this Court which was admitted but the stay of the implementation of letter of attachment was not granted.

The learned Magistrate then disposed of the objections of the Petitioner on 18.5 1983 The learned Megistrate observed that while dealing with the objections in execution proceedings, he could not go into the question whether the Respondent had acquired suff-cient means to maintain herself He took the view that orders u/s 125, Code of Criminal Procedure, could only be altered or changed u/s 125(5) or 127, Code of Criminal Procedure and since the application for the purpose had not been made, the order of maintenance could not be charged by means of objections The learned magistrate also refused to let the Petitioner question the paternity of the child. With regard to the attaching of the salary of the Petitioner in the State of Jammu and Kashmir, he observed that since the High Court had dismissed the earlier revision petition pertaining to the earlier period, and Section 421, Code of Criminal Procedure, permitted attachment of salary of the objector, the objection could not succeed. The Petitioner has challenged the said order in Criminal Revision No. 822 of 1983.

In the meantime, the third execution petition was filed by the Respondent maintenance claiming from 19.5.1982 to 18.2.1983. The execution application statedly was filed on 5.4.1983. The learned Magistrate issued an attachment order to the Inspecting Assistant Commissioner, income tax Department, Jammu, in the following words on 10.11.1983:

In the above noted case the applicant Smt. Sudesh Kumari has moved an application for the release of her maintenance allowance from 19.5.1982 to 1821983 @ Rs. 225/- per month and the total amount comes to Rs. 2,250/-. You are requested to please continue deduction from the pay Madhav Kumar working as Stenographer in your office. Till this amount is recovered, the salary of the Madhav Kumar is ordered to be attached to the extent of 2/3rd and the same may be sent to this Court. This attachment should be effected after the first execution application is satisfied.

Sd/- (A.S. Kathuria) Judicial Magistrate Ist Class, Amritsar.

The Petitioner has challenged the said attachment Order vide Criminal Miscellaneous No. 184-M of 1984 which on admission is being dealt with the afore dealt with criminal revision petitions.

The Learned Counsel for the Respondent has at the very outset raised a preliminary objection that it is not open to the Petitioner to challenge the execution proceedings and attachment orders when Criminal Revision No. 37 of 1982 has been dismissed by this Court in limine on 12.1.1982. As said before, in that petition a similar attachment order pertaining to the period from the date of application dated 18.9.1979 till 16.5.1981 was in question. It is at that stage, an objection had been raised by the Petitioner about the executability of the order So far as that order is concerned, that has become final. But to say that the Petitioner would thus remain bound for attachment orders pertaining to the recovery of maintenance for periods 19-5-1981 to 18.5.1982 and from 19-5-1982 to 18-2-1983 would to my mind, be denial of justice. He is certainly entitled to challenge the legality of these orders if there is any substance in his contentions. The preliminary objection thus stands overruled.

The Petitioner, who has all the while been appearing in person, is emphatic in raising the following points:

(1) A direct communication between the learned Magistrate and the Inspecting Assistant Commissioner of Income Tax, Jammu is not permissible under the law as it would tend to circumvent the provisions of Sections 421 and 422, Code of Criminal Procedure.

(2) The Code of Criminal Procedure, 1973 was not extended to the State of Jammu and Kashmir and as such the order is in executable in that State.

(3) His unearned salary is not such property which is capable of being attached and sold.

(4) Before issuing a warrant of attachment, the learned Magistrate was required to issue him a show cause notice to find whether there was any sufficiency of cause for not obeying the maintenance order, and

(5) his commitments, the Respondent''s earning capacity and the time bar.

I have given my careful thought to ail the contentions raised and have heard the Petitioner in detail.

u/s 125, Code of Criminal Procedure, an order can be made against a person to pay a monthly allowance for the maintenance of his wife or child. Such order can provide that the allowance be payable from the date of the application of maintenance or the date of the order (see Sub-section (2). If the person so ordered fails without sufficient cause to comply with the order, then under Sub-section (3) the Magistrate can, for every breach of the order issue a warrant for levying the amount due in the manner provided for levying the fines. Such a warrant cannot be issued for the recovery of any amount due under the said section unless an application for the purpose is made to the Court within a period of one year from the date on which it became due. This is what the first proviso requires. u/s 127, Code of Criminal Procedure, the allowance can be altered on proof of change in the circumstances of any person receiving u/s 125 a monthly allowance.

Warrant for ''levy of fine is provided u/s 421(1), Code of Criminal Procedure, which may be reproduced here:

When 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 moveable property belonging to the offender;

(b) issue a warrant to the Collector of the district, authorizing him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter:

Provided that, if the sentence directs that in default of payment of the 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 so to do, or unless it his made an order for the payment of expenses or compensation out of the fine u/s 357.

A warrant u/s 421(1) (a) has to be executed with the aid of Section 422 and a warrant u/s 421(1)(b) with the aid of Section 423. Concededly, the warrant in the instant case purposed to be issued u/s 421(1)(a) Such a warrant could be executed u/s 422 within the local jurisdiction of the Court. It could also extend to the attachment and sale of any such property outside such jurisdiction when it was endorsed by the District Magistrate within whose jurisdiction such property was found. Now, concededly, no such endorsement from the District Magistrate, Jammu. was obtained. But here Section 466 steps in to cure the defect that no attachment made under the Code shall be deemed unlawful on account of any defect or want of form in the writ of attachment or other proceedings relating thereto. Form No. 19 in the second Schedule, prescribed for the purpose, discloses that it can be addressed to a police officer or even to any other person named by the Magistrate to execute a warrant. Thus, the objection raised by the Petitioner that a direct communication between the learned Magistrate and the Inspecting Assistant Commissioner, income tax, Jammu, was not permissible under Sections 421 and 422, Code of Criminal Procedure, is of no substance and is hereby repelled. Equally, the objection that the order as such was not executable in the State of Jammu & Kashmir on account of the Code being not extended to that State is also of no substance because the person to whom the warrant of attachment it directed is not immune from the order of the Court merely due to his placement in a territory to which the Code does not extend.

With regard to. the contention that the unearned salary of the Petitioner could not be attached u/s 421(1)(a), the Petitioner has relied on six decisions. These are: U Ba Thovg v. Ma Aye AIR 1932 Ran 94, AIR 1934 82 (Rangoon) , Baldevi Vs. Ramnath, Rajendra Nath Ghose Vs. Brojabala Ghose, , The State v. Doraiswamy 1965 (2) Cri.L.J. 293 and Ali Khan v. Smt Hajrambi 1981 Cri. L.J. 682. The principles emerging from the aforesaid precedents are adequately summed up by Wanchoo, C.J., in the above-quoted Baldevi Vs. Ramnath, by observing as follows:

In the second place, it did not belong to Ramnath because he could not be said to have earned his future salary. The magistrate, therefore, was right in holding that no attachment of future salary could be made under the provisions of the criminal law.

* * * *

The procedure in Government is that a bill is drawn and the money is paid by the Treasury on the passing of the bill, and is received in the office where an employee is in service. As soon as it is received there, it, in our opinion, belongs to the employee, and all that the office has to do further is to pay it over to him. Therefore, while the money is still in the office, a person may attach it on a warrant of the magistrate.

As spelled out in the afore-extracted passage when the salary of an employee has been drawn from the Treasury and is in his office, it is corporeal property belonging to the employee and while the money is available in the office it is subject to attachment on a warrant of a Magistrate. As it appears to me in sum and substance, the warrants were issued by the Magistrate for periods from 17.5.1981 to 18.5.1982 and from 19.5.1982 to 18.2.1983 for attachment of salary when duly found in the office of the Petitioner after it had been withdrawn from the Government Treasury. These warrants could, by no means, be called affecting the attachment of future salary. It is precisely for this reason that Section 466 of the Code regarding objections to writs of attachment is brought in. For it cannot be forgotten that Section 125 Code of Criminal Procedure, provides a sumary remedy to the wife or a child to claim maintenance for herself in a standard of living which is neither luxurious nor penurious but is moderately consistent with the status of She family. No technical impediment in that direction, as is the mandate of the Code, can be allowed to frustrate that object or to elongate the process or proceedings. Thus, in my view, the attachment orders passed by the learned Magistrate were quite in order and cannot be quashed or modified in these proceedings.

With regard to the contention that before issuing a warrant of attachment, the learned Magistrate was required to issue to the Petitioner a Show-cause notice to find whether there was any sufficient cause for not complying with the maintenance order, it need be observed that the Petitioner, on appearing before the learned Magistrate, did not offer any such sufficient cause for non-complying with the order. Objecting to the order itself being executed is quite a different matter. That is no cause, much less sufficient for not obeying the maintenance order. This ground, as raised by the Petitioner, fails and is hereby rejected.

Lastly, it was contended by the Petitioner that he had commitments in as much as he had his parents to maintain and with the one-third salary, which was left in his hand, it was difficult for him to keep body and soul together. It is in this light and due to passage of time he maintained that the Respondent''s serving capacity should have been adjudged by the learned Magistrate, as it stood at the time when he raised the objection. It has been held in Shri Bhagwan Dutt Vs. Smt. Kamla Devi and Another, that the needs and requirements of the wife for the moderate living, as claimed u/s 488 of the Old Code of Criminal Procedure, can be fairly determined only if her separate income, also, is taken into account together with the earnings of the husband and his commitments. It cannot be forgotten that the out-side limits within which a maintenance order can be passed u/s 125, Code of Criminal Procedure, is to the extent of Rs. 500/-, As envisaged in the provisin to Section 127 of the Code of Criminal Procedure, by passage of time, alteration in maintenance allowance is permissible if there is change in the circumstances of any person receiving maintenance u/s 125. While the order is being executed, such change can obviously be allowed to surface. It has been stated by the Petitioner, which has not been refuted by the Learned Counsel for the Respondent, that execution proceedings are in progress before the learned Magistrate and the last date for the purpose was 4th of February, 1984. Presumably, the case stands adjourned further for, according to the Petitioner, he was ill and had sent a telegram. Thus, in the wake of those proceedings, it would be fair and proper that if there is any change in the circumstances justifying alteration in the maintenance allowance, the Magistrate be directed to apply his mind thereto It is just possible that by this time the Respondent may have picked up in legal profession. At the same time, it also requires to be examined by the learned Magistrate if any of the warrants issued for the period from 17.5.1981 to 18.5.1982 was issued beyond the period of limitation as also for the other period. The parties are at variance on the dates on which the execution applications were filed. Thus, for the limited purpose, while dismissing all these three matters, I would direct the learned Magistrate to undertake an enquiry on the aforesaid two particulars and pass appropriate orders Ordered accordingly.

The Petitioner and the Respondent through her counsel are directed to put in appearance before the learned Magistrate on 3rd April, 1984.