SUREKHA MRUDANGIA Vs. RAMAHARI MRUDANGIA

JUDGEMENT

(1.) The interesting point for consideration is whether future salary of a husband can be attached for recovery of arrears of maintenance by the wife in accordance with the procedure laid down in S.125(3) read with S.421(1)(a) of the Code of Criminal Procedure ('Code' for short).

(2.) Facts are simple and undisputed, the petitioner wife obtained an order of maintenance against the opposite party-husband under S.125 of the Code at the rate of Rs. 125/- per month. She filed a petition (registered as Misc. Case No. 87 of 1985) for attachment of the salary of the opposite party. The petition was allowed by the learned Sub-Divisional Judicial Magistrate, Berhampur and a writ attaching a sum of Rs. 200/- from the salary of the opposite party per month was issue for execution by the Tahasildar, Berhampur under whom the opposite party was serving as a Mohorir. In the meanwhile, the opposite party filed Title Suit No. 77 of 1988 before the Subordinate Judge, Berhampur, the facts of which are unknown, but probably it is a matrimonial case between the parties and in view of pendency of the suit, he prayed for withdrawal of the writ of attachment. The learned Sub-Divisional Judicial Magistrate having rejected the petition on the ground that execution of an order of maintenance passed under S.125 of the Code cannot be stopped because of pendency of a civil suit, the opposite party went up in revision to the Court of Session, Berhampur. The learned Additional Sessions Judge took the view that S.125(3) did not provide for attachment of salary and so the petitioner should have taken recourse to S.421(1)(a) of the Code. But without considering that the proceeding itself conforms to S.421(1)(a) of the Code, he allowed the revision. The petitioner, therefore, approached this Court challenging the order of the learned Additional Sessions Judge.

(3.) Sub-Section (3) of S.125 of the Code for as it is relevant to the case is quoted below : (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made." Arrear maintenance is thus recoverable in the same manner provided for recovery of fines levied in a criminal case. Fine levied is recovered according to S.421(1)(a) of the Code and is quoted below so far it relates to the case in hand :