PANCHANAN MUKHERJEE Vs. ALOKANANDA MUKHERJEE

JUDGEMENT

(1.) The petitioner is present through his Ld. Advocates, but one on behalf of the O.P. wife is present when the matter it repeatedly called. From the order dated 11.3.02 of this court it appears it has been held that notice has been duly served upon the O.P. but she has not been appearing before the court on the fixed dates. Under such circumstances the matter is taken up for hearing in the absence of the O.P. Heard Ld. Advocate for the petitioner. Judgment is passed as follows. This revisional application is directed against the order dated 3rd May, 2000 passed by the learned Judge, Family Court, Calcutta in Misc. Case No. 229 of 1994 whereunder he has allowed a petition filed by the wife (the present opposite party) and directed the employer of the husband -opposite party not to settle the dues of that opposite party, i.e., the present petitioner until further orders. The ground on which such decision was taken by the learned Judge, Family Court was the fear expressed by the wife that if such retiral benefits of the husband were settled and if he was allowed to receive the same in full then in case the wife was required or was in need of realising any money from the husband as p(sic) court's order, then she would be helpless, such dues of her husband being no longer available in his office for such purpose.

(2.) Ld. Advocate, appearing on behalf of the husband -petitioner submits that after that order was passed by the court below his client filed his permanent address before the learned court below in order to give the impression that he had no intention to escape the liability of paying to his wife even after his dues from his office were withdrawn. But even thereafter, the Ld. Court below did not modify its order.

(3.) Mr. Ghosal cites a decision reported in, 1991 C.Cr.L.R. (Gal.) 133 (Md. Jahangir Akhan vs. Mst. Monoara Bibi), wherein a Division Bench of this court has held that although maintenance proceeding under Sec. 125 of the Criminal Procedure Code is in the nature of a civil proceeding, it does not warrant a departure from the express provisions of execution as contained in the Criminal Procedure Code, nor can the court devise a procedure in purported exercise of inherent power and as regards the question of recovery of arrears of maintenance allowance in view of Sec. 421 sub -sections (i) (a) and (b) of the Criminal Procedure Code, any movable property which is not capable of both attachment and sale cannot suffer an order under this clause and future salary being not movable property is not attachable under the aforesaid Sec. of the Criminal Procedure Code, 1898 by a Magistrate in execution of order of maintenance, as future salary is not tangible corporeal property. The fact that the order has been passed not by a Magistrate but a Judge of the Family Court does not make any difference. The provisions of the Criminal Procedure Code cannot be given a go -bye and salary or emoluments of any person cannot be held attachable by that Court under the provisions of the Criminal Procedure Code, because future salary cannot be said to belong to the husband, as he can not be said to have earned his future salary. In view of this settled position of law, there is no doubt that the Family Court below in attaching the retiral benefits of the petitioner has fallen into error. It is true that taking of such a view may give rise to some hardship to the destitute lady, but on the face of the well -settled legal position one can only helplessly observe that until the legislature comes forward to incorporate into Chapter -K of the Code of Criminal Procedure a more simple but speedy execution procedure in respect of orders of maintenance, the law will be lagging behind the demands and requirements of the changing society.