Maintenance: If a person fails to pay the maintenance can either be arrested for non-compliance or his properties both movable and immovable including salary can be attached

Prayer

Criminal Original Petition filed under Section 482 of Cr.P.C., to set aside the order dated 12.09.2019 passed in Crl.M.P.No.1508 of 2018 in M.C.No.8 of 2017 on the file of the learned Chief Judicial Magistrate Court, Thoothukudi, directing the attachment of salary.

Fact

2.The marriage between the petitioner and the second respondent was solemnized on 13.12.2009 and due to their wed-lock, the third respondent was born on 29.08.2011.

3.It is not in dispute that the respondents 2 and 3 have laid a maintenance claim in M.C.No.8 of 2017 and the learned Chief Judicial Magistrate, after conducting enquiry, has passed an order dated 30.05.2018, directing the petitioner herein to pay monthly maintenance of Rs.8,000/- each to the respondents 2 and 3.

4.It is also not in dispute that the petitioner aggrieved by the award of maintenance has preferred a revision in C.R.P.No.10 of 2019 and that the same is pending on the file of the District Court, Tuticorin. Meanwhile, the respondents 2 and 3 have filed a petition in Crl.M.P. No.1508 of 2018 under Section 128 of Cr.P.C, seeking orders, directing the first respondent Garnishee for attachment of Rs.35,000/- per month, as a part amount towards maintenance arrears from total salary of the petitioner from the office the Garnishee and deposit the amount before the Court and also for an order directing the Garnishee not to disburse the voluntary retirement and full and final settlement amount to the petitioner until realization of the pending maintenance amount of Rs.3,04,000/- to be paid by the petitioner.

Trial Court order

5.The learned Magistrate has passed the impugned order dated 12.09.2019 ordering for attachment of 2/3 of the salary, after deducting a sum of Rs.1,000/-. Challenging the above said order, the petitioner, invoking Section 482 of Cr.P.C., has filed the present petition.

Petitioner side Argument

6.The learned counsel for the petitioner would submit that the learned Chief Judicial Magistrate ought to have considered that the Criminal Revision Petition filed by the petitioner is pending in C.R.P. No.10 of 2019 before the District Court, challenging the award of maintenance passed in M.C.No.8 of 2017 and that the learned Chief Judicial Magistrate ought not to have passed the impugned order of the salary attachment, when the criminal revision challenging the award of maintenance is pending before the higher forum.

9.The next contention of the petitioner is that the learned Chief Judicial Magistrate while passing the order for salary attachment, has not assigned any reason. 10.The learned counsel for the petitioner would submit that the learned Magistrate ought to have directed the petitioner to deposit the amount in pursuance of the order passed in the maintenance case and only in the absence of making deposit, he ought to have ordered for salary attachment.

11.He would further submit that the learned Chief Judicial Magistrate has not followed the procedures contemplated for attaching the salary of the petitioner and more particularly, the procedure contemplated under Order 21 Rule 48 of CPC.

Respondent Side Argument

8.The learned counsel for the respondent, mere pendency of revision cannot be considered as barring or preventing from passing orders executing the maintenance award. In the absence of any order staying the execution of the award of maintenance, proceeding of the petition filed under Section 128 Cr.P.C by the learned Magistrate cannot be found fault with.

12.As rightly contended by the learned counsel for the respondents 2 and 3, since the above Crl.M.P.No.1508 of 2018 has been filed under Section 128 Cr.P.C, the question of invoking Order 21 Rule 48 CPC or any other provisions of the Code of Civil Procedure does not arise at all.

Findings

13. This Court has directed the Registry to call for the records relating to the petition in Crl.M.P.No.2105 of 2018 and Crl.M.P.No.1508 of 2018 and perused the copies of the records received by the concerned Court.

14.It is evident from the records that the petitioner has filed a petition under Section 126(2) Cr.P.C in Crl.M.P.No.2105 of 2018 for setting aside the ex-parte order passed in Crl.M.P.No.1508 of 2018 dated 25.10.2018 and that the learned Chief Judicial Magistrate after hearing the both parties and considering the submissions of the counsel for the respondents 2 and 3 that they were not having any objections in allowing the petition on payment of cost, has passed conditional order on 26.07.2019, directing the petitioner to pay the cost of Rs.400/- on or before 02.08.2019 , failing which, the petition shall stand dismissed and that subsequently, the petitioner side has filed a memo stating that the cost has been paid and after recording the same, the petition in Crl.M.P.No.2105 of 2018 was ordered to be allowed.

15. It is pertinent to note that the learned Magistrate, after setting aside the ex-parte order passed against the petitioner in Crl.M.P.No.1508 of 2018, posted the matter for payment and that since the petitioner has not chosen to pay the amount, the impugned order was passed attaching 2/3 of salary, after deducting Rs.1,000/-.

Impact of fails to comply with the maintenance order of court

19.This Court has specifically held that when a person, who is ordered to pay maintenance, fails to comply with the order, he can either be arrested for non compliance or his properties both movable and immovable including salary can be attached.

Attachment of salary is very much valid

20.Considering the above and on applying the legal dictum above referred, this Court has no hesitation to hold that the impugned order for attachment of salary is very much valid and legal and as such, the same cannot be found fault with. Hence, this Court concludes that the above petition, which is devoid of merits, is liable to be dismissed. Since the revision is pending from 2019 onwards, this Court is of the view that necessary directions is to be issued for early disposal of the same.
21.In the result, the Criminal Original Petition is dismissed and the learned District Judge, Tuticorin, is directed to dispose the revision in C.R.P.No.10 of 2019 as expeditiously as possible preferably within a period of one month from the date of receipt of copy of this order. Consequently, connected Miscellaneous petition is closed.

Party

M.Bhaskaran Petitioner vs. 1.The Chief Educational Officer, O/O.The Chief Educational Officer, Ramnad, Ramanathapuram District. 2.P.Pasupathi 3.B.Methashree : Respondents – Crl.O.P (MD). No.19063 Of 2019 And Crl.MP (MD) No.11185 Of 2019, Dated On 21st March 2022 – Coram: The Hon`Ble Mr.Justice K.Murali Shankar – Before The Madurai Bench Of Madras High Court (Criminal Jurisdiction).

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M. Bhaskaran vs. The chief Education Officer