GITA MITRA Vs. HEMANTA KUMAR MITRA

JUDGEMENT

(1.) The petitioner wife obtained an ex parte decree of divorce against the opposite party husband in Matrimonial Suit No. 21 of 1977 of the 8th Court of the learned Additional District Judge, Alipore. Subsequently she filed an application for alimony under Section 25 (i) of the Hindu Marriage Act. This application however, was contested by the opposite party husband. There was an order in favour of the wife after contested hearing, directing the opposite party husband to pay monthly alimony at the rate of Rs. 200/- from the date of the application. It appears upon a perusal of the order passed in that behalf on January 7, 1978 that an employe from the office of the employer of the Opposite party husband gave evidence to the effect that the net income per month of the husband was about Rs. 1,000. The husband claimed that he had to maintain his old parents and minor brothers and sisters. The opposite party husband submitted through his advocate that a monthly alimony at the rate of Rs. 150 would be sufficient. Having however, considered the totality of the evidence the learned Additional District Judge allowed the application for alimony directing the husband to pay at the rate of Rs. 200 per month as already indicated. The husband, however, admittedly did not pay any amount towards alimony whereupon the wife filed an application for execution, by attachment from the monthly salary of the judgment-debtor husband, the total dues at the date of the filing of the execution petition being Rs. 980.

(2.) The husband filed an application under Section 47 r/w Section 60 of the C. P. Code, claiming exemption from attachment on the ground that he was a labourer and in view of the provisions contained in Section 60 (1) (h) of the Code his wages could not be attached. The learned Additional District Judge-relying upon the decision in the case of K.U. Kulkarni v. Ganpat Hiraji, AIR 1942 Bom 191 held that the husband who was a laskar in the employment of the Port Trust, Calcutta was a labourer within the meaning of Section 60 (1) (h) of the Code since he had to do manual work in the performance of his duties and as such the remuneration earned by him was "wages of a labourer". In that view of the matter the learned Additional District Judge held that the husband was a labourer and the wages earned by him were exempt from attachment. The application under Section 47 was accordingly allowed with the result that the execution case was struck off.

(3.) The decree holder wife thereupon filed the present revisional application contending that the husband was not a labourer as contemplated by Section 60 (1) (h) of the Code and as such could not claim exemption from attachment. It was further contended that the provision of Section 60 (1) (h) of the Code is ultra vires the Constitution being violative of Article 14 of the Constitution of India.