Attachment of future salary is not permissible under Section 125(3) of the Cr. P.C. The claim for maintenance is subject to limitation. The wife's refusal to live with the husband is justified if there is genuine apprehension of ill-treatment.

1. This is for the fourth time this matter relating to recovery of arrears of maintenance in favour of the wife/respondent No. 1, has come up before this Court.

2. After the order of maintenance was passed on 21-11-1975, the wife/respondent No. 1 put in her first application for execution of the order on 19-10-1977. The husband/petitioner made an offer to take back the wife. A point was also taken by him that certain portion of the claim for arrears of maintenance was barred by time. The objections raised by the husband having been dismissed and a warrant ordered to be issued under Section 125(3) r/w. Section 421(b), the husband preferred criminal revision application No. 7/78 in this Court pointing out two irregularities; one relating to non-compliance of the provisions contained in the second proviso to Sub-Section (3) to Section 125, Cr. P.C., and the second relating to issuance of an order for holding back the maintenance amount from the salary of the husband without issuing necessary warrant as provided by law. When the matter came up for hearing it was agreed that the matter should be sent back to, the court of the Magistrate for following the procedure laid down in Sub-Section (3) of Section 125, Cr. P.C. After remand as the learned Magistrate did not hold the inquiry regarding offer made by the husband, the petitioner again preferred Criminal Revision Application No. 34/79 which was again accepted and the matter was remanded. This time also the counsel agreed that the disposal was not in accordance with the law and the case should be remitted for a fresh decision on two questions formulated as under :-

(1) Whether a letter could be addressed to the Collector for reduction of a portion of the salary of the petitioner; and

(2) Whether the claim by the wife in respect of the past maintenance and recurring maintenance is barred by limitation in terms of Section 125, Cr. P.C.

There was another Criminal Revision No. 85/79 filed by the petitioner because the learned Magistrate still committed the same mistake in answering the two questions. The petition was allowed and the case was again remanded by order dated 26th April, 1980.

3. On 23-5-1980 the advocate for the wife made an application for issuance of a warrant against the husband and sent to the Collector for recovery. The Court passed the following order :-

"Issued warrant under Section 125(3) r/w. Section 421(b) as ordered in Order dated 26-10-1979. Hon'ble Addl. Judicial Commissioner in Cr. Revn. No. 85/79 has held that the recovery of part maintenance shall be made.

Sd/-

R.K. Batta.

23-5-80"

On the aforesaid date the learned Magistrate also passed an order posting the case to 5/6/80 for inquiry regarding the offer made by the husband. By his order dated 1-8-1980 he has held that the refusal of the wife to live with the petitioner was genuine and for sufficient reason.

4. It is against the aforesaid two orders this criminal revision application has been preferred.

5. The first point taken up by Mr. Fernandes, learned advocate for the petitioner, is that the order dated 23-5-1980 regarding issuance of warrant for attachment of future salary of the petitioner for the purpose of recovery of the arrears of maintenance is without jurisdiction not being supported by any provision of law. Section 421 of the Code of Criminal Procedure speaks of levy of fine. It says that when the offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways :-

(a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender;

(b) issue a warrant to the Collector of the District, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter.

There has been no change in the aforesaid two ways in the new Criminal Procedure Code. In'Baldevi v. Ramnath' AIR 1955 Raj 61 : (1955 Cri L