The future salary of a husband can be attached for the recovery of past arrears of maintenance under Section 125(3) and 421(1)(a) of the Code of Criminal Procedure, 1973, and the Magistrate can also pass an order directing the warrant of attachment of salary under Section 431 of the Cr.P.C. for the collection of future maintenance without recourse to Sections 125(3) and 421 of the Cr.P.C.

Here is an interesting question of law, viz., whether future salary of husband can be attached for the recovery of future period of maintenance by the wife in a maintenance proceedings under Chapter IX of the Code of Criminal Procedure ?

2. The facts of the case are as follows :-

(a) The petitioner Mani is the husband of the respondent Jaykumari. She obtained an order in M.C. No. 4 of 1993 on the file of Judicial Magistrate, Ambasamudhram, under Section 125, Cr.P.C. for the monthly maintenance at the rate of Rs. 400/-.

(b) Since the husband is said to have committed default in paying the monthly maintenance, she applied to the Court for the recovery of the amount due. Despite the service of notice on the petitioner, who is working as an Office Assistant in Agricultural Department of Tamilnadu Government, he did not choose to appear before the Court. Therefore, considering the various aspects, the learned Magistrate directed attachment of salary payable to the petitioner/husband by the Department.

(c) The petitioner, even without approaching the Court to recall the warrant of attachment, has come forward before this Court with this revision challenging the warrant of attachment of salary contending that the impugned order was passed without jurisdiction.

3. In brief, the following are the contentions urged by the counsel for assailing the impugned order :-

(1) Under Section 125(3), Cr.P.C., the wife is entitled to claim arrears of maintenance for the period of one year only. The respondent herein filed an application in Crl.M.P. No. 3470 of 1995 claiming arrears of maintenance from November, 1994 to August, 1995 for a period of 10 months. But, the learned Judicial Magistrate by the impugned order dated 12-2-1996 ordered for the recovery of maintenance by attachment of salary from November, 1994 to January 1996 for a period of 15 months totalling about Rs. 6, 000/-. This is impermissible under law, in violation of Section 125, Cr.P.C(2) By virtue of the impugned order, the salary was attached for 30 months at the rate of Rs. 600/- per month, that is, Rs. 200/- towards the past arrears and Rs. 400/- towards the maintenance for every month from February, 1996 to August, 1998. The learned Magistrate thus exceeded the jurisdiction by attaching the future salary which has not accrued to the petitioner. Nothing is provided under the Code of Criminal Procedure empowering the learned Judicial Magistrate to attach the future salary which is not a tangible corporeal property, that too, before it accrues to the petitioner.

(3) In the impugned order it is further provided for attachment of salary of Rs. 400/- as the future maintenance from the future salary from September, 1998 onwards. There is no power for the Magistrate to attach future salary towards the future maintenance.

4. I heard Mr. Senthurpandian, the counsel for the petitioner and Mr. Anand Venkatesh, the counsel for the respondent, at length, the perused the citations referred to by them.

5. In view of the peculiar and interesting question of law which arises in this case as referred to above, this Court requested Mr. Packiaraj, the learned counsel, to assist the Court. Accordingly, Mr. Packiaraj, who has gladly consented to assist the Court, submitted at great length after meticulous preparation on various aspects of the question posed in this case in a neat and lucid manner which enabled the Court to delve deep into the subject-matter and to have a final conclusion.

6. The wife, the respondent herein filed a petition claiming maintenance in M.C. No. 4 of 1993. After enquiry, the learned Judicial Magistrate awarded maintenance of Rs. 400/- by the order dated 15-9-1993. Previously, since the petitioner/husband did not pay the amount of maintenance, the respondent filed a petition for enforcement of the maintenance order in Crl.M.P. No. 2344 of 1993 claiming arrears from 8-4-1993 to 30-9-1993. Again, she filed a petition in Crl.M.P. No. 136 of 1994 claiming arrears a from Octo