CRL. REV. P/4/2005 of Kharka Bahadur Pradhan Vs Bhuma Devi Pradhan on 23 September 2005

THE HIGH COURT OF SIKKIM : GANGTOKCriminal Ftevision No.4 of 2005

In the matter of a petition under section 397read with sections 401 and 482 of the Code ofCriminal Procedure, 1973

and

in t:he matter of

Kharka Bahadur Pradhan,S/o Late Bali Narayan Pradhan,R/o Tinek Busty, Nandugaon,South sikkim ....... Revision petitioner

versus

Smt. Bhuma Devi Pradhan,W/o Shri Kharka Bahahdur Pradhan,R/o Tinek Busty, Nandugaon,South sikkim ..... „ Respondent Fort:he Revision Petitioner : Mr. J. K. Chandak, Advocat:e &

Mr. Umesh Gurung, Advocat:e.

Forthe respondent : Mr. A. K. Upadhyaya, Senior Advocate/Legal Aid Counsel &Manita Pradhan, Advocate.Manita Pradhan, Advocate.

PRESENT: THE HON'BLE MR. JuSTICE A. P. SuBBA, JUDGE.

Last date of heari`ng : 8±h September, 2005.

DAITE OF 0F{DER : 23RDSEPTEMBER, 2005.

Q a J2 I a

A. P. Subba, J.

The present revision petition filed by Kharka BahadurPradhan of Tinek Busty, Nandugaon, South Sikkim undersection 397 read with sections 401 and 482 of the Code ofCriminal Procedu^re, 1973 is directed against the order dated 23rd March, 2005 passed by the learned Judge,Family Court, Sikkim at Gangtok in Family Court Case (Crl.Misc.) Case No.16 of 2004.

2. As per.the facts set out in the revision petition,the present petitioner Kharka Bahadur Pradhan was payingmonthly maintenance allowance of Rs.1,500/-t:o his wifeSmt:. Bhuma Devi Pradhan, t:he respondent herein incompliance with order dated 2nd June, 2001 passed by theFamily Court, Gangtok in Family Court Case no.67 of2001. The amount so payable was being recovered bydeducting the same from the monthly salary of thepet.itioner till his retirement from Government Service inthe month of August, 2004. On his retirement, thepayment: of the monthly maintenance allowance t:o t:herespondent by way of deduction from the monthly salaryof the petitioner got automatically discontinued.

On his retirement, the petitioner received an amountof Rs.1,21,000/- towards his retirement: benefits but hedid not pay any amount to the respondent as a token ofher share from such retiral benefits. However, hed.eposited a sum of Rs.50,000/- in his Saving BankAccount bearing no.4120 at the State of Bank of Sikkim,Jorethang branch at South Sikkim. Since she was paid noshare from the retiral benefits, she filed Family Court Case (Crl. Misc.) no. 16 of 2004 in the Family Court at Gangtokseeking issue of a direction to the opposite party to payRs.50,000/- i.e. the amount deposited in .his bank accountt:o the petitioner for her maintenance.

3. The Family Court first forwarded the matter tothe District Court Lok Adalat for reconciliation. Since noreconciliation was possible, the Lok Adalat returned thematter to the Family Court. On receiving the matt:er backfrom the Lok Adalat, the Family Court referred the matterto the Family Court Counsellors for making efforts foramicable settlement, as required under a Family CourtsAct, 1984. However, no settlement was possible beforethe Family Court Counsellors also. Thereafter, the learnedFamily Court heard the part:ies and by order dated 23rdMarch, 2005 rejected the prayer for issue of direction tothe petit:ioner to pay Rs.50,000/-to the respondent but atthe same time held that, considering the change in thecircumstances of the petitioner following his retirementfrom service, the respondent shall be entitled to receivemaintenance allowance of Rs.4bo/- per month in place ofRs.925/- per mont:h from the petitioner, with effect fromthe month of November, 2004 in modification of the orderdated 2nd June, 2001 passed earlier in Family Court Caseno.67 of 2001. It was further directed that the maint:enance amount of Rs.400/- shall be deducted fromthe pension payable to the petitioner from the mont:h ofApril, 2005. It is against this order relating to attachmentof the monthly pension of t:he petitioner that the presentrevision petition has been filed.

4. Further case of the petitioner is that, thelearned Family Court in passing the impugned order, failedto appreciate that the pet:itioner had become a pensionerafter having retired from government service and that the amount of pension being received by him was dulyprotected from attachment under the provisions of section60(g) of the Civil Procedure Code, 1908. Therefore, theimpugned order being contrary to law was liable t:o bequashed.

Mr. J. K. Chandak, learned counsel for the petitioner and Mr. A. K. Upadhyaya, learned senior counseland legal aid counsel assist:ed by Ms. Manita Pradhan,counsel for the respondent were heard.

6. Mr. J. K. Chandak, the learned counselsubmitted that the pension payable to the petitioner fallswithin the exemption provided by section 60 of the Codeof Civil Procedure and, as such, it was not liable t:oatt:achment. It was his submission that the impugnedorder being an order passed by the Family Court was hit

by the above said provisions of law, and as a result, theimpugned order so far as it: relates to attachment: ofpension was bad in law and liable to be quashed. Mr. A.K. Upadhyaya, learned senior counsel, appearing as legalaid counsel submitted that the present revision petitionwas not maintainable in so far as it was not filed under theappropriate statutory provision, and. that even if it werefiled under the appropriate statutory provisi6n, the orderof maintenance passed by the Family Court under section125 of the Criminal Procedure Code would fall outside t:hepurview of the provisions of section 60 of the Code of CivilProcedure. Thus, according to him, the revision petitionwas liable to be dismissed in any case.

7. As can be seen from.above, the petitioner hasno objection to the order for payment of maint:enanceallowance @ Rs.400/-from the month of November, 2004.His only ob].ection relates to the direction for deduction ofthe amount from the monthly pension payable to him onthe ground that such pension is protect:ed from attachmentby section 60(g) of the Code of Civil Procedure. Therefore,the only question that arises for consideration is whetherthe impugned order is hit by the provision contained insub-section (g) of section 60 of the Code of Civil Procedureand if so, whether the order can be maintained.

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In order to consider t:he rival contentions raisedby the parties, it would be necessary to take a look of theprovision of law relied on by the parties. As st:at:ed above,the learned counsel for the petit:ioner in support of hiscontention, referred to and relied on the provisioncontained in sect:ion 60 of the Code of Civil Procedure. Fort:he sake of convenience of reference, we may reproducethe relevant part of section 60 of the Code of Civil, Procedure as follows:- ``60. Property liable toattachment and sale in execution ofdecree.-(1) The following property isliable to attachment and sale in executionof a decree, namely, lands, houses ofother buildings, goods, money, banknotes, cheques, bills of exchange, hundis,promissory notes, Government securities,bonds or other securities for money,debts, shares in a corporation and, saveas hereinafter mentioned, all othersaleable property, movable or immovable,belonging t:o the I.udgment-debtor, or overwhich, or the profits of which, he has adisposing power which he may exercisefor his own benefit, whether the same beheld in t:he name of the ].udgment-debtoror by another person in trust for him or onhis behalf:

Provided that the followingparticulars shall not be liable t:o suchattachment or sale, namely :- (g) st:ipends and gratuities allowedto pensioners of theGovernment or of a localauthority or of any otheremployer, or payable out ofany service family pension fu.nd

notified in the Official Gazetteby the Central Government orthe State Government in thisbehalf, and political pension;"

A perusal of the above section goes to showthat, while sub-section 1 enumerates the properties whichare liable to attachment and sale in execution of a decree,the proviso (a) to (h) to the sub-sect:ion enumerate theproperties which are not liable to attachment or sale inexecution of a decree. clause (g) of the said sectionwhich is relevant for the present purpose and which hasbeen reproduced above, enumerates stipends andgratuities allowed to pensioners, as the items exemptedfrom attachment and sale in execution of a decree passedby a Civil Court. It is not disputed by the petitioner that apension is exempted from attachment and sale inexecution of a decree passed by a Civil court under theprovisions of the above section. The specific submission ofMr. Upadhyaya in the present case is that the impugnedorder being an order passed under section 125 of the Codeof Criminal Procedure was not a decree passed by a CivilCourt and, as such, it falls outside the purview of section60 of Code of Civil Procedure. In support of hissubmission, the learned counsel placed reliance on thedecision of the Hon'ble Supreme Court in State of Punjab ir and another vs. Dina Nath reported in AIR 1984 SC 352.The observation of the Apex Court relied on by the learnedcounsel is as follows:- ``On a plain reading of the saidSection 60, it is clear that that section hasno application to attachment and sale inany proceedings other than in executionof a decree of a civil court. The provisionof Section 60 of the Code do not apply toan attachment and sale under any otherstatute unless made expressly applicablethereto.,,

10. It is clear from the above, that provision of sect:ion 60 of the Code of Civil Procedure does not apply toan attachment and sale under other statutes. The sectionwould be applicable only if such statue makes t:he sectionexpressly applicable. In the present case, the impugnedorder passed by the Family Court is one under section 125of the Code of Criminal Procedure. .It is not disputed thatthe Code of Criminal Procedure, 1973 does not provideanywhere that the provisions of section 60 of the Codewould be applicable to attachment and sale made pursuantto any order passed under section 125 of the Code ofCriminal Procedure. On the contrary, sub-sect:ion 3 ofsection 125 which deals wit:h enforcement of the orderpassed under section 125 provides as follows:- \\125.

(3) If any person so ordered failswithout sufficient cause to comply with v+

the order, any such Magistrate may, forevery breach of the order, issue a warrantfor levying t:he amount due in the mannerprovided for levying fines, and maysentence such persons, for the whole, orany part of each month's. allowanceremaining unpaid after the execution ofthe warrant, to imprisonment for a termwhich may extend to one month or untilpayment if sooner made:"

11. In addition to the above, section 128 which is supplementary to sect:ion 125(3) provides as follows:-

``128. Enforcement of order

of maintenance.-A copy of the orderof maintenance shall be given withoutpayment to the person in whose favour itis made, or to his guardian, if any, or tothe person to whom the allowance is to bepaid; and such order may be enforced byany Magistrate in any place where theperson against whom it is made may be,on such Magistrate being satisfied as tothe identity of the parties and the non-payment of the allowance due."

12. It may be noted that, besides t:he above provisions cont:ained in Criminal Procedure Code, which isa general law of procedure specific provisions relat:ing toenforcement and execution of maint:enance order passedby a Family Court, have also been incorporated in theFamily Courts Act, 1984. Therefore, a reference to therelevant: section .of the said Act is unavoidable. Section 18of the said Act which provides for execut:ion of decrees andorders passed by the Family Court is to the followingeffect : - N!- ``18. Execution of decrees and orders.-(1) A decree or an order [otherthan an order under Chapter IX of t:heCode of Criminal Procedure, 1973 (2 of1974)], passed by a Family Court shallhave the same force and effect as adecree or order of a civil court and shallbe executed in the sam.e manner as isprescribed by the Code of Civil Procedure,1908 (5 of 1908) for the execution ofdecrees and orders.

(2) An order passed by a FamilyCourt under Chapter IX of the Code ofCriminal Procedure, 1973 (2 of 1974) shallbe executed in the manner prescribed forthe execution of such order by that Code.

(3) A decree or order may beexecuted either by the Family Court whichpassed it or by the other Family Court orordinary civil court t:o which it is sent forexecution . "passed it or by the other Family Court orordinary civil court t:o which it is sent forexecution . "

13. A perusal of sub-sect:ion 1 of the above section would show that an order passed by the Family Courtunder section 125 which falls under chapter IX of theCriminal Procedure Code, 1973 cannot be equat:ed with adecree of a Civil Court and consequently, the procedureprescribed for execution of decrees in the Code of CivilProcedure including exemption engrafted, if any, would notbe applicable to it. Sub-section 2 of the same sect:ionfurt:her makes it clear that an order passed under section125 of the Code of Criminal Procedure by the Family Courtshall be executed in the manner prescribed for theexecution of such order by that Code.

14. Section 125(3) and section 128 are the sectionsunder the Criminal Procedure Code which prescribe t:hemode and the manner for execution of orders passedunder section 125 of the Criminal Procedure Code. Thesesections have already been extracted above. A plainreading of these provisions would go to show that theamount payable under the order of maintenance isrecoverable in the manner provided for levying fine and incase of failure of the husband to pay the amount he can besentenced for whole or in part of each months allowanceto imprisonment for a term which may extend to onemonth or until payment is made earlier. Absence of anyprovision in the relevant chapter of Code of CriminalProcedure making sect:ion 60 of the Code of CivilProcedure expressly applicable to the enforcement ofmaint:enance order passed under section 125 of the Codeof Criminal Procedure makes it abundantly clear that therestriction imposed by section 60 of the Code of CivilProcedure in the matter of attachment of pension cannotapply to attachment and sale to be initiat:ed forenforcement of maintenance order passed by Family Courtunder chapter IX of the Code.

15. Even though the above is sufficient to clinch theissue, we may as well deal with one other submission v+

advanced by Mr. Chandak on the strength of a decision ofKarnat:aka High Court before we pass on to the next point.•What: was submitted by Mr. Chandak is that, as per t:hedecision of Karnataka High Court in Smt. Rangamma andothers vs. C. S. Appaji Murthy and another report:ed in AIR1989 NOC 52 (KANT.) a pension was not liable toattachment even in enforcement of order relating tomaintenance. The decision relied on by the learnedcounsel is a Single Bench decision and reported in NOCsection of the I.ournal. The Head Not:e A relied on by himis as follows:- ``(A) Civil P.C. (5 of 1998), S. 60(1)Proviso (g) - Grat:uity payable toGovernment pensioner - Cannot beattached even in enforcement of orderrelating to maintenance."

Since the decision is report:ed in NOC sect:ion only, the learned counsel expressed his inability to producedetail ].udgment. Hence, the Court was deprived of theadvantage of going through the detailed judgment. Eventhen, a reading of the above Head Note does make it.clearthat, what has been held by the single bench of KarnatakaHigh Court in the case, is that, a gratuity payable to aGovernment pensioner is exempted from att:achment evenin case of enforcement of order of maintenance. It is, however, to be noted that this is a decision of a co-ir

ordinate authority and, as such, it is only of a persuasivevalue so far as this Court is concerned. The specificprovisions contained in the Family Courts Act alreadyextracted above are self-explanatory. Over and above, wehave the clear decision of the Apex Court on the point inDina Nath's case (supra). Such being the clear legalposition, I cannot but express my respectful disagreementwith the above view taken by the learned Single Bench ofKarnataka High Court in the case cited above.

We cannot overlook the fact that the ob].ect ofsection 125 in providing speedy remedy is to preventstarvation of wives deserted by their husbands, of childrenand parents and thereby prevent vagrancy. Therefore, thereason why a pension payable to a husband has not beenexempted from attachment and sale in the enforcement ofan order passed under section 125 of the CriminalProcedure Code unlike a decree passed by a Civil Court is .obvious. It is needless t:o say that, if a pension were to beexempted from attachment and sale even in execution of amaintenance order passed under section 125 of theCriminal Procedure Code on a par with the decree passedby a Civil Court, as contended by the learned counsel forthe petition, the object with which the provision has been made would not be fulfilled. That the object and thetr purpose behind the provisions contained in chapter IX ofthe Code of Criminal Procedure should not be lost sight ofin the matter of enforcement of order of maint:enanceallowance would be clear from the following decisions aswell.

In Ahmed Pasha vs. Wajid Unissa and Othersreported in 1983 CRI.L.J. 479 a Single Bench of AndhraPradesh High Court held that the attachment of salary forthe purpose of recovery of arrears of maintenance was inaccordance with law. Relying on this decision, anotherSingle Bench of the same High Court in In Re : YerasuriLakshminarayana Murthy reported in 1986 CRI.L.J. 1846gave wide interpretation to the word movable property soas to include salary within its ambit and held that salary ofthe husband can be attached under section 125(3) of theCode of Criminal Procedure for payment of maintenance tothe wife.

16. The next submission made by Mr. Upadhyaya isthat the impugned order is one passed by Family Court,and in view of this, the present petition ought to havebeen filed under the related provision of th`e Family CourtsAct and not under the provisions of Criminal Procedure Code. Since the present revision petition has been filedir under t:he provisions of Code of Criminal Procedure and notunder Family Courts Act the same was not maintainable.

17. In order to appreciate the contention of Mr.Upadhyaya, a reference to the relevant provision of theFamily Courts Act is called for. Sub-section 4 and 5 ofsection 19 of the Family Courts Act inserted by Act 59 of

1991 which deal with appeals and revisions provide asfo I I ows : - ul9..............

(4) The High Court may, o.f its ownmotion or ot:herwise, call for and examinethe record of any proceding in which theFamily Court situate within its ].urisdictionpassed an order under Chapter IX of theCode of Criminal Procedure, 1973 (2 of1974) for the purpose of satisfying itselfas to the correctness, legality or proprietyof the order, not being an interlocut:oryorder, and, as to the regularity of suchproceeding.

(5) Except as aforesaid, no appealor revision shall lie to any court from any].udgment, order or decree of a FamilyCourt.„

18. While the above sub-section 4 makes it clear that.any revision against an order passed by a FamilyCourt under chapter IX of Code of Criminal Procedurewould lie only to the High Court, the next following sub-sect:ion (5) make it crystal clear that no appeal or revisionwould lie to any other Court except the Court as provided for and specified in the preceding sub-section (4).tr `9®e`

19. The above provisions, therefore, make it clearthat ordinarily a party aggrieved by an order passed by aFamily Court and desiring to go in appeal or revision mustcome under the provisions of Family Courts Act and notunder t:he provisions of Code of Criminal Procedure. Inthis regard, a reference to a recent decision of this Courtwould not be out of place. It might be noted t:hat thisCourt in Criminal Misc. Petition Nos.1 and 2 of 2005 -Sanjoy Menon Ra].an. vs`. State of Sikkim and othersdecided on 20th July, 2005 had the occasion to considersomewhat a similar question and to observe that since theFamily Courts Act is a special Act and it lays down det:ailedprocedure, the same must be followed in ad].udication ofmatrimonial disputes. Taking this view in the matter, apetition for dissolution of marriage filed in this Courtdirectly bypassing the forum provided in the Family CourtsAct was directed to be filed in t:he appropriate forum, i.e.,the Family Court at the first instance, in terms of theprocedure laid down therein. In the present case, theimpugned order is an order passed by a Family Courtunder section 125 of the Code of Criminal Procedure. Itwould, therefore, be an order passed by a MatrimonialCourt under the related provisions of Family Court:s Actand as such, any party aggrieved by such order and desiring t:o go in appeal or revision in the higher forummust, in ordinary course, follow the procedure laid down inthe same Act for filing such appeal or revision and takingresort to similar provisions in other statues would beunwarranted.

20. Of course, Mr. Chandak, the learned counsel forthe petitioner submitted that this Court in exercise of itsinherent power could t:reat t:he present application as onefiled under the provisions of Family Courts Act andent:ertain the same for the ends of justice. The power ofthis Court to t:reat t:he present revision petition as one filedunder the provisions of Family Courts Act, 1984 in theint:erest of ].ustice, as suggested by the learned counsel,may not be in doubt, yet it has to be noted that even ifsuch a course of action is adopted, the relief sought for bythe revision petitioner cannot: be granted in view .of thereasons already mentioned above. Therefore, t:he courseof action suggested by` the learned counsel, even ifresorted to, would be an exercise in futility.

21. It, therefore, follows that there is no merit inthe present revision petition. Accordingly, the revisionpetition is hereby dismissed. Consequently, the stay orderdated 25th May, 2005 stands vacated.

^tl-

22. In the circumstances of the case, there shall be no order as to cost:s.

23. Send a copy of this order to the concernedauthority for information and compliance.

1-------.:`:-i---( A. P. Subba )Judge23-09-2005