NASEERA BEGUM Vs. SYED HABIBUR REHMAN

JUDGEMENT

(1.) THIS revision, which is a referred matter to this bench by the learned single Judge of this Court raises an interesting point as to whether future salary of a person can be held to be a tangible movable property for the purposes of Section 421 of Cr. P. C. and it cannot, at any time, be attached for recovery of the defaulted amount of the maintenance awarded to a wife.

(2.) THE present Petitioner Nps, 2 and 3 are the minor sons of Petitioner no. 1. The Petitioner No. 1 is the legally wedded wife of Respondent no. 1. Inasmuch as, the petitioners were deserted and neglected by respondent No. 1, by refusing to maintain them, the Ptitioner No. 1, for herself and for her sons, started this legal battle in 1981 for monthly maintenance. She filed an application under Section 125, Cr. P. C. , 1973, for the monthly maintenance on 27/7/1981 in the Court of the judicial Magistrate, First Class, Nanded. It was Miscellaneous Application no. 115 of 1981. By an order, dated 25/8/1982 she was awarded monthly maintenance of Rs. 200 for herself and Rs. 50 each for the petitioner Nos. 2 and 3. The present petitioners thep moved the Session court for enhancement of the amount while Respondent No. 1 husband also moved the Sessions Court for the cancellation of the order of maintenance. These two proceedings, Criminal Revision Petition Nos. 132/1982 and 162/1982, came to be rejected by the Sessions Court by the common, order, dated 12th April, 1983. Respondent No. 1-husband then moved this court in Criminal Application No. 193/1983 which came to be dismissed on 29/11/1983. The Petitioner No. 1 wife then approached the trial Court" for recovery of maintenance on several occasions and lastly by the present misc. Application No. 230 of 1988.

(3.) RESPONDENT-HUSBAND is gainfully employed with the State Government as a Mechanic and drawing monthly salary. Therefore, in the recovery proceedings in Misc. Application No. 230 of 1988, the wife sought the relief of attachment of salary of her husband in execution of the amount of arrears of maintenance. By an order, dated 1-8-1989, the Judicial Magistrate, nardtd, awarded the said relief and directed the attachment of the salary of the respondent-husband. The order was challenged by the husband in criminal Revision Petition No. 203 of 1989 before the Sessions Court at nanded and by an order, dated 16-9-1989, the 2nd Additional Sessions Judge, nanded allowed the said revision and set aside the order of attachment holding that it could only be done under Section 421 of Cr. P. C, 1973 by civil process through the Collector of the District as recovery of arrears of land revenue. The order of the 2nd Additional Sessions Judge is carried to this court in Criminal Revision Application 327 of 1989 by the wife.