Kerala High Court | Husband’s Pension Can Be Attached To Recover Maintenance For Wife & Children

The Kerala High Court has held that a father’s pensionary benefits are not immune from attachment towards payment of maintenance to children. A Division Bench of Justice K.Harilal and Justice C.S. Dias was considering the question whether the father’s pensionary benefits are exempted from being disbursed towards arrears of maintenance payable to his children.

Case:

• This was in an Original Petition filed under Article 227 of the Constitution of India, challenging the orders of an Execution Court which directed KSRTC – petitioner’s employer- to deposit the maintenance arrears in the Court, and permitted his children to withdraw the same
• The petitioner raised the contention that pension is immune from seizure/attachment under Section 11 of Pensions Act and Section 60 (1) (g) of the Code of Civil Procedure
• The court said that since the petitioner is a retired employee of the KSRTC, it is KSR-Part III which is applicable for disbursement of pension and not Section 11 of the Pensions Act
• As per Rule 124 of the KSR, pension is not liable to seizure/attachment at the instance of a creditor for any demands against the pensioner
• However, the Court said that the claim of wife and children for maintenance cannot be regarded as a debt and they cannot be treated as creditors

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This conclusion was arrived at on the basis of definitions of ‘creditor’ and ‘alimony’ given in Halsbury’s Laws of England, Stroud’s Judicial Dictionary, and several judicial precedents such as Chaturbhuj v. Sita Bai, Ramesh Chander Kaushal v. Veena Kaushal & Ors.

On this basis, the judgment authored by Justice C S Dias observed :

In light of the definition of the word “creditor”, and that payment of alimony is not a debt or liability and that it is not one founded on a contract, express or implied, but is a legal means of enforcement of the obligation of the husband and father to maintain his wife and children, we hold that the respondents 2 and 3 cannot be branded or labeled as “creditors” of the petitioner.

The liability of the petitioner to maintain his children is statutory and sacrosanct falling within the sweep of Art.15 (3) and Art.39 of the Constitution of India, as observed in Ramesh Chander Kaushal (supra).

The bench further observed,

If wives and children are treated as creditors falling within the exemption to Rule 124 of the Rules, it will render laws relating to payment of maintenance redundant. Such a suppressive interpretation cannot be permitted.

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In this regard, the judgment also noted that Section 39 of the Transfer of Property Act gives a person who has the right to receive maintenance a charge over the property belonging to the person bound to maintain such person.

The court also examined Section 60 (1) (g) of the CPC where the court observed that the legislature has knowingly included the words “family pension fund” under the said section. It noted,

Therefore, it is held that wife and children do not fall within the fold of the exemption to Section 60 (1) of the Code, as family pension fund that is payable to the family/dependents of the pensioner is exempted from attachment only by a person falling outside the purview of family.

The Court also observed that the liability of the husband/father to maintain his wife/children is statutory as well as Constitutional, falling within the sweep of Art 15(3) and Art. 39 of the Constitution of India. While dismissing the petition the court said that the children have charge over the properties of the father and their right to be maintained by the father (petitioner) overrides all such exemptions in the law.

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The petitioner cannot defeat his children from realising maintenance from him, which is their indefeasible statutory right having precedence over the exemption under Rule 124 of the Rules. This court cannot remain a mute spectator to the agonising delay that has occurred, and the machiavellian methods adopted by the petitioner to thwart the execution proceeding.

In another case in April last year, the Bombay High Court had held that pension granted by the government can be attached in order to recover the amount of maintenance for the wife.

Applicant’s counsel PK Mishra argued that the magistrate exceeded his jurisdiction by passing an order of attachment of pension. He submitted that before retirement, the applicant husband was getting a salary of Rs.1,53,000 per month and after retirement, he is getting a pension of Rs 72,000 per month. He further submitted that his client is not in a position to pay Rs 30,000 per month to his wife as maintenance.

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Relying on Section 11 of the Pensions Act, 1871, Mishra said that pensions cannot be attached. He also stated that the maintenance amount was exorbitant and could be modified to Rs.20,000.

The court upheld the order but modified the amount of monthly maintenance from Rs 30,000 to Rs 20,000.

Our Take:

• If we go by the phrase “The liability of the husband/father to maintain his wife/children is statutory as well as Constitutional”, the courts must also define the duties and liabilities of a wife and a mother
• On one hand, our judicial system declares Man as the sole provider for his family, however, completely overrides his constitutional rights to equality; to expect certain duties from his wife in return
• In several matters, wives have filed domestic violence cases, alleging the husband and his family expected her to cook
• Marriage cannot be a chart about who will do what, however, the onus cannot rest only on one Gender
• In times when women want to scream #Equality, somehow the same women go mute and silent when asked to refuse maintenance and become self dependent
• Such is the acute bias that has made lives of men, especially the separated ones, totally unfair and miserable

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http://voiceformenindia.com/in-the-news/husband-dies-in-jail-due-to-kidney-failure/

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