Maintenance To Wife Not A Debt, Husband’s Pension Not Exempted From Attachment Towards Payment Of Arrears: Madras High Court
Madras High Court on 23rd December 2022, pronounced that maintenance to wife not a debt, husband’s pension not exempted from attachment towards payment of arrears This was seen in the matter of P Amutha v Gunasegaram which is presided over by the of Coram The Honourable Mr. Justice V. Sivagnanam.
FACTS OF THE CASE
The Madras HC has held that the maintenance allowance that is granted to the wife would not come within the scope of debt and thus, the pension of the husband is not exempt from attachment concerning payment of arrears of maintenance.
Pointing up that maintenance is a social fair play to avert penury & vagrancy, Justice V Sivagnanam observed, “Lawful claim due to a woman in distress should not be refused brutally & lawlessly. The moral sense of social justice, the keystone of our constitution will be secured. Consequently, I hold that the maintenance allowance granted to wife cannot be considered as a debt and she is not a creditor. Hence, exemption u/s 11 of the Pension Act 1871 as well as the exemption provided in Sec 60(1) (g) of CPC, cannot be granted to husband.”
The court allowed a criminal revision petition filed by the wife revoking the order of the Judicial Magistrate Tambaram in which the Magistrate court had dismissed a petition for attachment of pension for arrears of maintenance & for future maintenance. The magistrate had observed that there is a bar u/s 60(1) (g) of the CPC.
The wife had filed a maintenance petition in 1990 in which Rs. 500 was ordered as maintenance. This amount was later increased to Rs 4000 in 2013. The respondent-husband, who was working as a barber in the Indian Military, had failed to pay maintenance & there were arrears of Rs 1,19,000. Since the husband was ex-service man, the wife had moved the petition for attaching his pension account.
The petitioner, relying upon the decision of the Bombay HC in Bhagwat v. Radhika argued that the maintenance allowance cannot be considered as a debt & thus the exemption under Sec 60 of the CPC & Sec 11 of the Pension Act 1871 is not applicable.
The respondent-husband objected to the submission & contended that the exemption under CPC & the Pension Act is applicable to maintenance allowance also.
The court noted that the Bombay HC in Bhagwat’s case had clearly held that the maintenance allowance could not be considered a debt & that she is not a creditor. This observation has been followed by the Gujarat HC also.
The court further noted that if the pension was to be exempted from attachment towards maintenance, it would defeat the very purpose & affect the divorced woman’s interest as she would be unable to claim any maintenance once the husband retires. Such elucidation wouldn’t only affect the measure of social fair play for securing women but would adversely affect justice, it said.
Thus, the court set aside the impugned order & directed the Judicial Magistrate to take appropriate actions for collecting the arrears of maintenance from the pension of the respondent-husband by attachment.
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JUDGEMENT REVIEWED BY YAKSHU JINDAL.