IMPORTANT POINT
For the default of payment of maintenance without sufficient cause, salary of the husband or part thereof shall be liable for attachment in accordance with law when the same becomes due at the end of the month and till then the writ of attachment which has once been issued by the Magistrate shall remain dormant so as to revive at the appropriate time.

JUDGMENT

K. P. Mohapatra, J.- The interesting point for consideration is whether future salary of a husband can be attached for recovery of arrear maintenance of the wife in accordance with the procedure laid down in Section 125 (3) read with Section 421(1)(a) of Code of Criminal Procedure ('Code for short).

2. Facts are simple and undisputed. The petitioner-wife obtained an order of maintenance against the opposite party-husband under section 125 of the Code at the rate of Rs. 125/- per month. She filed a petition (registered as Misc. Case No. 87 of 1985) for attachment of the salary of the opposite party. The petition was allowed by the learned Sub-Divisional Judicial Magistrate, Berhampur and a writ of attaching a sum of Rs. 200/- from the salary of the opposite party per month was issued for execution by the Tahasildar, Berhampur under whom the opposite party was serving as a Mohorir. In the meanwhile, the opposite party filed Title Suit No. 77 of 1988 before the Subordinate Judge, Berhampur, the facts of which are unknown, but probably it is a matrimonial case between the parties and in view of pendency of the suit, he prayed for withdrawal of the writ of attachment. The learned Sub-Divisional Judicial Magistrate having rejected the petition on the ground that execution of an order of maintenance passed under Section 125 of the Code cannot be stopped because of pendency of a civil suit, the opposite party went up in revision to the Court of Session, Berhampur. The learned Additional Sessions Judge tool the view that Section 125(3) did not provide for attachment of salary and so the petitioner should have taken recourse to Section 421(1)(a) of the Code. But without considering that the proceeding it-self conforms to Section 421(1)(a) of the Code, he allowed the revision. The petitioner, therefore, approached this Court challenging the order of the learned Additional Sessions Judge.

3. Sub-section (3) of Section 125 of the Code so for as it is relevant to the case is quoted below :

(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issued a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, t imprisonment for a term which may extend to one month or until payment if sooner made."

Arrear maintenance is thus recoverable in the same mariner provided for recovery of fines levied in a criminal case. Fine levied is recovered according to Section 421(1)(a) of the Code and is quoted below so far it relates to the case in hand :

"421. Warrant for levy of fine:- (1) When an 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, that is to say, it may

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

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Identical provisions existed in Sections 488(3) and 386(1)(a) of the old Code. The provisions of Section 488(3) and 386(1)(a) of the old Code came up for interpretation before a Division Bench of the Rajasthan High Court as reported in Baldevi v. Ramnath.1 Wanchoo, C.J. (as His Lordship then was)held as follows :

"Section 488(3) provides for execution of order of maintenance, and under it if any person fails to comply with the order, any Magistrate may, for every breach of order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines. There is also a provision for sentencing the man to imprisonment for a term extending up to one month or until payment is made:

The wife in whose favour the maintenance order is passed can ask for realisation under Section 488(3) of one month's arrears which are due to her. She cannot possibly ask for an order of attachment under Section 488(3) fo