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Maintenance To Wife Not A Debt, Husband’s Pension Not Exempted From Attachment Towards Payment Of Arrears: Madras High Court

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.

JUDGEMENT

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.

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Court Seeks Governments Response on Plea Seeking Gender Neutral Toilets across State: Madras High Court

Court Seeks Governments Response on Plea Seeking Gender Neutral Toilets across State: Madras High Court

The Madras HC has directed the State to respond to a plea seeking gender impartial public toilets across educational institutes, at bus stops, railway stations, airports & such other public places. and also directed the State counsel to seek instructions & respond to the petition in a week. This was seen in the matter of Case Title: Fred Rogers v. The Chief Secretary & others, Case No: WP 2499 of 2023 presided over by the bench of Acting Chief Justice T Raja & Justice Bharatha Chakravarthy.

FACTS OF THE CASE

The court was hearing a plea filed by transgender person. The petitioner claimed that though transgender persons in the state are given the choice to choose toilets of their own identified gender, in real life they are harassed- verbally, physically & sometimes sexually, incase they try to use the same.

Advocate Arun Kasi, appearing for the petitioner, presented that gender impartial toilets will not only help the gender non-confirming. Non-binary, queer & other communities but will also help the disabled children/parent who need help of others (sometimes from opposite genders) for using the toilets.

The petitioner also presented that such gender impartial toilets would encourage broad & remove the stigma surrounding gender non- conformity. It was argued that providing public toilets to all members of the society is one of the duties of the govt.

Finding the prayers to be reasonable, the court asked the State why relevant steps are not being taken to take on this issue. To this, the State responded that raising gender impartial toilets would require time. However, the State also said that it is not against the idea.

JUDGEMENT

The court then propsed that till the time gender impartial washrooms are rasied, some of the existing public toilets could be transform into gender impartial toilets.

“We do not have a gender impartial toilet even in our HC premises. While such toilets must be raised, in the meantime, if some of the existing public toilets are reserved to be used only by trans persons, their problem can be solved,” the court noted. The court adjourned the matter by a week directing the State counsel to seek instructions.

JUDGEMENT REVIEWED BY YAKSHU JINDAL.

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A valid tender would remain valid even if corruption charges are found against officers of Tender Scrutiny Committee: Karnataka High Court

The Karnataka High Court under Justice M Nagaprasanna in M/s Allengers Medical Systems Ltd And State of Karnataka (Writ petition No. 17634 of 2022) has said that the authority responsible for requesting tender is only permitted to revoke a bid before it has been awarded and before the contract has been executed. Except in cases of tender condition violations, it is illegal to withdraw or cancel the tender once the award has been announced.

FACTS

The petitioner claims to be a registered Company under the Companies Act, 1956 and is in the business of procurement of medical and allied equipments. The 2nd respondent/ Karnataka State Medical Supplies Corporation Limited (hereinafter referred to as ‘the Corporation’ for short) issues a notice inviting tenders for procurement of 100mA Portable X-ray machines, ICU Cots and Syringe Pump. It was to be a two cover tender, in terms of the Karnataka Transparency in Public Procurement Act, 1999. The issue in the lis concerns only item No.2 in the Tender i.e., 100mA Portable X-ray machines. The petitioner finding itself eligible, submits the tender in terms of the tender along with another tender. On the Tender Scrutiny Committee declaring the petitioner to be the successful bidder, the petitioner was called for negotiations with regard to the final price and the petitioner reduced the price from Rs 19,34,640/- to Rs 18,95,947/- and the award of contract was notified in the favour of petitioner. Pursuant to the notification of 5 award, an agreement was also signed between the parties and thereafter, a demand draft for supply of 165 Portable X-ray machines of 100mA was submitted by the petitioner for issuance of purchase order and a separate agreement for such purchase was also entered into between the parties. In spite of all these, no purchase order was issued as was required, in terms of the tender. It is at that juncture, the petitioner knocked the doors of this court with the present petition. This Court initially directed the learned Additional Government Advocate to secure instructions as to what has become of the tender. After issuance of notice the petitioner is communicated a cancellation of tender order, in terms of its electronic mail communication. It is then this Court has passed a detailed order restraining the respondents from re-tendering and reserved liberty in the respondents to issue purchase order in favour of the petitioner. Therefore, the matter, with the consent of parties, was heard.

FINDINGS

The bench said if there are corruption charges against officers of the Tender Scrutiny Committee, it is for the appropriate authority to take action. It cannot result in cancellation of a valid order. “A notice inviting tender can be withdrawn or cancelled only upto a particular stage. Once it crosses the said stage, any unilateral cancellation would be an arbitrary exercise of power.”

Article 14 mandates that every action of the State should pass through the golden thread of Non-Arbitrariness and therefore the Corporation is a satte under Article 12 of the Constitution of India.

 

 

 

JUDGEMENT

The cancellation of Tender would amount to Arbitrary exercise of power and violative of Article 14 of the Constitution of India and therefore Writ Petition is allowed and the communication dated 03-11-2022 of the 2nd respondent stands quashed.

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JUDGEMENT REVIEWED BY VAISHNAVI SINGH

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During recruitment process, Administrative Tribunal can decide disputes regarding classification of Candidate’s category: Karnataka High Court

The Karnataka High Court under Justice Anant Ramanath Hegde in Ameena Afroj And State of Karnataka & others (Writ petition No. 200032 of 2023) has said that the Administrative Tribunal established under the Administrative Tribunals Act 1985 has the authority to hear all cases ‘concerning recruitment,’ including all decisions made between the date a notice inviting applicants for government job openings was published and the orders of appointment.

FACTS

The issue, in this case, is pertaining to the petitioner’s caste and income and the same is outside the purview of the Administrative Tribunal (for short ‘Tribunal’). This issue has to be considered only by this Court in the exercise of power under Article 226 of the Constitution of India. Assuming that the Tribunal has got the jurisdiction to deal with this matter under Section 15 of the Act, the alternative remedy by itself will not oust the jurisdiction of the High Court under Article 226 of the Constitution of India. The present writ petition is to enforce the petitioner’s fundamental right under Article 14 of the Constitution of India as the persons who are similarly placed, are classified in the 2-B/KA-HK category. The petitioner is questioning the discrimination and infringement of her fundamental right under Article 14 of Constitution of India.

FINDINGS

The court said “The expression ‘recruitment’ and ‘matters 10 concerning recruitment’ found in Section 15 (1) (a) are not defined in the Act. Thus, the Court has to apply the plain grammatical meaning attached to the above-said expressions, unless such exercise leads to absurdity” In addition to the expression ‘recruitment’ found in Section 15 (1) (a) in the Act, to remove any ambiguity or difficulty in interpreting the word ‘recruitment’ or to eliminate the scope for misinterpretation, the Parliament itself has used the expression, ‘matters concerning recruitment’ in Section 15 (1) (a) of the Act. Said expression undoubtedly has a wider connotation than the expression ‘recruitment’. When the word recruitment itself is wide enough to cover the act or the process involved in the recruitment, the expression, ‘matters concerning recruitment’ found in Section 15 (1) (a) of the Act, leads to only one conclusion that the decision taken in processing the application for the post is a decision relating to recruitment or the matters concerning to recruitment. In the present scheme of our Constitution, recruitment under the State is governed by the reservation policy of the State. The process involves reserving a certain specified percentage of seats based on reservation policy. Thus, the employer is under obligation to process the applications for recruitment based on criteria fixed under the reservation policy. While processing the applications for the posts, if a decision is taken to classify the applicant in a particular category, as happened in the case of the petitioner, ‘the decision taken’ is indeed a decision taken in the process of recruitment.

JUDGEMENT

For the aforementioned reasons, the court dismissed the petition calling it as non-maintanable. The petitioner is at liberty to approach the Tribunal constituted under the Administrative Tribunals Act 1985. The Registry is directed to return the annexures to the writ petition, after retaining the xerox copy if requested by the petitioner.

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JUDGEMENT REVIEWED BY VAISHNAVI SINGH

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If the convict dies, it does not discharge his liability to pay fine imposed by court, it can be recovered from his estate: Karnataka High Court

The Karnataka High Court under Justice Shivashankar Amarannavar in Thotlegowda v. State of Karnataka (Criminal petition No. 165 of 2012) has said that the death of the convict does not discharge his liability from paying fine and compensation imposed by court. It can be recovered from the property which goes to his legal heirs after his death and they are legally liable for the payment of the fine.

FACTS

The accused has filed this appeal challenging the judgment of conviction and order of sentence dated 26.12.2011 passed in Spl.case No. 94/2008 by the Additional Sessions Judge and Special Judge, Hassan, whereunder the appellant accused has been convicted for the offence punishable under Section 135 and 138 of Indian Electricity Act, 2003 (for short hereinafter referred to as `the Act’) and sentenced to pay fine of Rs.24,204/- for the offence under Section 135 of the Act and sentenced to pay fine of Rs.5,000/- for the offence under Section 138 of the Act.

FINDINGS

The court referred to Section 394 of Criminal procedure Code, which deals with abtement of appeals, said “An appeal from a sentence of fine will not abate on the death of the appellant.” It added, “In the present case appellant has been sentenced to pay fine only and therefore on the death of the appellant the appeal will not abate.” The legal heirs of the appellant are not interested in making any such application for a continuation of appeal, according to the representation made by the accused’s attorney, which the court noted.

JUDGEMENT

The court said “The appellant died on 06.04.2019 and no such application is filed by his near relatives to continue the appeal. Learned counsel for the appellant submits that the legal heirs of the appellant are not interested in making any such application. Hence, the property of the appellant which goes to his legal heirs after his death is legally liable for payment of the fine amount. Hence, in view of the death of the appellant, the appeal is dismissed. The trial Court is directed to initiate proceedings to recover the fine amount imposed on the accused from his estate which is inherited by the legal heirs of the appellant on his death.”

PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into the category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, and best civil lawyer.

JUDGEMENT REVIEWED BY VAISHNAVI SINGH

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