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Maintenance To Wife Not A Debt, Husband's Pension Not Exempted From Attachment Towards Payment Of Arrears: Madras High Court
Upasana Sajeev
31 Jan 2023 8:48 PM IST
The Madras High Court has held that the maintenance allowance that is granted to the wife would not come within the purview of debt and thus, the pension of the husband is not exempt from attachment towards payment of arrears of maintenance. Highlighting that maintenance is a social justice to prevent destitution and vagrancy, Justice V Sivagnanam observed, "Lawful claim due to a...
The Madras High Court has held that the maintenance allowance that is granted to the wife would not come within the purview of debt and thus, the pension of the husband is not exempt from attachment towards payment of arrears of maintenance.
Highlighting that maintenance is a social justice to prevent destitution and vagrancy, Justice V Sivagnanam observed,
"Lawful claim due to a woman in distress should not be denied heartlessly and lawlessly. The conscience of social justice, the cornerstone of our constitution will be protected. Therefore, I hold that the maintenance allowance granted to wife cannot be considered as a debt and she is not a creditor. Hence, exemption under Section 11 of the Pension Act 1871 as well as the exemption provided in Section 60(1)(g) of Civil Procedure Code, cannot be granted to husband."
The court allowed a criminal revision petition filed by the wife challenging the order of the Judicial Magistrate Tambaram wherein the Magistrate court had dismissed a petition for attachment of pension for arrears of maintenance and for future maintenance. The magistrate had observed that there is a bar under Section 60(1) (g) of the Civil Procedure Code.
The wife had filed a maintenance petition in 1990 in which Rs. 500 was ordered as maintenance. This amount was later enhanced to Rs 4000 in 2013. The respondent-husband, who was working as a barber in the Indian Military, had failed to pay maintenance and there were arrears of Rs 1,19,000. Since the husband had retired from service, the wife had moved the petition for attaching his pension account.
The petitioner, relying upon the decision of the Bombay High Court in Bhagwat v. Radhika argued that the maintenance allowance cannot be considered as a debt and thus the exemption under Section 60 of the CPC and Section 11 of the Pension Act 1871 is not applicable.
The respondent-husband objected to the submission and contended that the exemption under CPC and the Pension Act is applicable to maintenance allowance also.
The court noted that the Bombay High Court in Bhagwat's case had clearly held that the maintenance allowance could not be considered a debt and that she is not a creditor. This observation has been followed by the Gujarat High Court also.
The court further noted that if the pension was to be exempted from attachment towards maintenance, it would defeat the very purpose and affect the divorced woman's interest as she would be unable to claim any maintenance once the husband retires. Such interpretations would not only affect the measure of social justice for protecting women but would adversely affect justice, it said.
Thus, the court set aside the impugned order and directed the Judicial Magistrate to take appropriate actions for collecting the arrears of maintenance from the pension of the respondent-husband by attachment.
Case Title: P Amutha v Gunasekaran
Citation: 2023 LiveLaw (Mad) 36
Counsel for the Petitioner: Mrs. MS Rajeswari
Counsel for the Respondent: Mr. V Gabrial
