Maintenance awarded under Section 488 of the CrPC is not attachable in a decree passed against the wife for restitution of conjugal rights.

1. This is an appeal of the judgment-debtor from the order of the executing Court directing that the maintenance awarded to her under section 488 of the Code of Criminal Procedure is attachable in a decree passed against her for restitution of conjugal rights.

2. Shiela Rani appellant was married to the respondent Durga Prashad on 6.05.1956. The parties did not have a smooth married life as the wife felt obliged to make an application for maintenance under section 488 of the Code of Criminal Procedure as maintenance by an order of the criminal Court passed on 17.12.1958. The respondent-husband in his turn filed an application for restitution of conjugal rights on 26th March 1959. This application was allowed and the husband was granted a decree for restitution of conjugal rights on 14th of February 1962.

3. It is the execution of the decree for restitution of conjugal rights which has given rise to this appeal. Under Order 21 rule 32 of the Code of Civil Procedure a decree for restitution of conjugal rights may be enforced against a person who has willfully failed to obey if " by the attachment of his property." The respondent-husband applied for attachment of the amount which was lying deposited in the criminal Court as arrears of maintenance granted to the appellant on 17th of December 1958. The wifes objection to this attachment having been disallowed by the executing Court she has come in appeal here.

4. The learned counsel for the appellant relies on a Bench Decision of Guha and Bartley JJ. in Giribala Devi v. Nirmalabala Devi, AIR 1935 Cal 578 for the proposition that the decree-holder was seeking to attach the future right of maintenance and this is prohibited under the provisions of the Code of Civil Procedure. Under section 60 the property which is liable to attachment and sale in execution of a decree has been detailed in sub-section (1). There are provisions to this sub-section which enumerate certain items which "shall not be liable to such attachment or sale." Clause (n) of this proviso mentions as an exception " a right to future maintenance". In the Calcutta case it was held that arrears of maintenance payable under orders of a criminal Court cannot be attached if the right created by the order. The Division Bench adopted the test laid down earlier by Sir Ashutosh Mukherji, J., in Tara Sundari Debi v. Saroda Charan, 12 Cal LJ 146 that the maintenance would not be attachable if it is purely a personal right created by an order awarding it. Now it cannot be disputed that the maintenance granted by the criminal Court was a purely personal right created by the order of the criminal Court and is therefore not liable for attachment. The execution Court before whom this authority was cited distinguished it on the ground that the arrears of maintenance which are sought to be attached do not constitute a right to future maintenance. I am unable to accede to this reasoning. Where the maintenance has not been realised by the person held entitled to it still remains a right of future maintenance has not been realised by the person held entitled to it, it still remains a right of future maintenance and does not become attachable merely because the arrears have not been realised. The Judges of the Calcutta High Court were also concerned with the question of arrears of maintenance which had become payable under orders of the criminal Court and it was never questioned there that they do not fall under clause (n) of the proviso to sub-section (1) of S. 60 of the Code of Civil Procedure. Mention may also be made of a Division Bench judgment of the Saurashtra High Court (Shah C. J. and Baxi J. ) in Kanta Motichand v. Amratlal, AIR 1953 Sau 42. A point was made that the civil proceedings for restitution of conjugal rights put an end to the maintenance proceedings under S. 488 of the Code of Criminal Procedure. It was observed by the Saurashtra High Court (Shah C. J and Baxi J.) in Kanta Motichand v. Amratlal, AIR 1953 Sau 4