Future salary cannot be attached as movable property for recovery of maintenance arrears under section 125(3) of the CrPC and section 421 of the CrPC.

Headnote:
MAINTENANCE - SECTION 125(3) - SECTION 421 - ATTACHMENT OF SALARY - FUTURE SALARY CANNOT BE ATTACHED AS MOVABLE PROPERTY FOR RECOVERY OF MAINTENANCE ARREARS.
Fact of the Case:

The husband failed to pay maintenance arrears to his wife and children, leading to an application for recovery of maintenance allowance and execution of recovery. The wife requested the attachment of the husband's salary, which was not yet due, as he had no valuable movables to attach.
Finding of the Court:

The court held that the future salary of the husband could not be attached as movable property for recovery of maintenance arrears under section 125(3) of the Criminal Procedure Code (CrPC) and section 421 of the CrPC.
Issues: Whether the future salary of the husband could be attached as movable property for recovery of maintenance arrears under section 125(3) of the CrPC and section 421 of the CrPC.
Ratio Decidendi: The court reasoned that the future salary was not a tangible corporeal property available for seizure and did not belong to the husband since he had not yet earned it. The court also noted that the definition of movable property under section 22 of the Indian Penal Code, which is applicable to the CrPC, is more restrictive and requires tangible corporeal property.
Final Decision: The court allowed the revision application, quashed the impugned order of attachment of salary, and set aside the proceedings for recovery by attachment of salary. The court directed the trial court to take other lawful steps for recovery.

JUDGMENT - Puranik S.W., J.:- By this Criminal Revision Application the applicant seeks quashing of the proceedings attaching his salary amounting to Rs. 5450/ -issued by Judicial Magistrate, First Class, 8th Court, Nagpur in Miscellaneous Criminal Case No. 34/82 (Ramkali v. Jagoo) on an application filed by the present non-applicant for enforcement of the order of maintenance.

2. The applicant is the husband, while the non-applicant No. 1 is his wife and the non-applicant Nos. 2 and 3 are the children out of their wedlock. The non-applicant No.1 had filed proceedings under section 125 of Criminal Procedure Code, claiming maintenance for herself and her minor children-non-applicant Nos. 2 and 3. The proceedings were contested by the husband-applicant and after recording of evidence, the Trial Court came to the conclusion that the~ non-applicant No. I was entitled to grant of maintenance as also her two minot” children. The Trial Court directed the applicant husband to pay Rs. 175/- per month as maintenance allowance to non-applicants.

3. The applicant husband, however, failed to pay the arrears of maintenance to the non-applicants and Sit is thereafter that the wife non-applicant No. 1 filed an application for recovery of maintenance allowance and for order executing the recovery of the same. The said application was filed on 10-5-1982 before the Trial Court. It was Miscellaneous Criminal Case No. 34 of 1982. On 10-5-1982, the applicant husband who was non-applicant in the said proceedings was absent. On that date, the wife Ramkali filed another application stating inter-alias that the husband has been ordered to pay maintenance to her at the rate of Rs. 75/- per month and Rs. 50/- each for the two minor children. She further contended that she had applied for execution of the said order, but the husband has been seeking time to file reply to the execution application. She further submitted that the husband is absent on 10-5.1982 (the date of her application). He is thus avoiding payment of the maintenance arrears. She, therefore, submitted that since the husband has no, valuable movables to attach, she desires that the salary of the husband should be attached. She then gave the address of the employer of the husband as “The Divisional Superintendent, Central Railway. Ajni, Nagpur.” Upon this application dated 10-5-I982 the learned Judicial Magistrate passed a very brief order as follows;

“Non-applicant absent. Applicant with her counsel. Issue warant of attachment of salary of non-applicant to the tune of Rs. 5450/-”.

It is this order which is impugned in the present revision.

4. Shri G. C. Choubey, the learned counsel appearing for the applicant husband contended that the said order is not only without jurisdiction, but is contrary to the modes of recovery laid down under the Code of Criminal Procedure. He submitted that the learned Trial Court has not followed the procedure laid down under section 125-(3). He further contended that the future salary of the applicant husband cannot be said to be movable property within the meaning of section 421 of the Criminal Procedure Code for levy of fines. He, therefore, submitted that the impugned order is liable to be quashed and set aside.

5. Shri K. B. Neware Advocate, appeared for non applicant Nos. 1 to 3. He supported the impugned order and contended that the applicant husband has been avoiding the payment of maintenance and there is no other alternative but to attach the salary of the applicant for recovery of the arrears of maintenance. Shri A. A. Desai, Asstt. Govt. Pleader appeared for the State.

6. The main question involved in this case is therefore whether during proceedings for recovery of arrears of maintenance, the Trial Court could issue a warrant of attachment of salary of the husband which had not accrued to him and which was his future salary.

7. Section 125-(3) with its first proviso says as under:-

“If any person so ordered fails without sufficient cause to compl

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