Noting that wife cannot be attributed as a 'creditor', the Madras High Court has held that a husband cannot claim exemption of pension from attachment towards payment of arrears of maintenance.

The single-judge bench of Justice V Sivagnanam observed that maintenance allowance granted to wife cannot be considered as a debt as it is a measure of social justice, specifically enacted to protect and inhibit neglect of the women aiming to prevent vagrancy and destitution in the light of the mischief to be avoided, the justice to be advanced.

The Court stressed that lawful claim to a woman in distress should not be denied heartlessly and lawlessly and the conscience of social justice, the cornerstone of our constitution will be protected.

"Therefore, I hold that the maintenance allowance granted to wife cannot be considered as a debt and she is not a creditor. Hence, exemption under Section 11 of the Pension Act 1871 as well as the exemption provided in Section 60(1)(g) of Civil Procedure Code, cannot be granted to husband."

The petitioner-wife herein has sought payment of arrears of maintenance from the respondent-husband who was working as Barber in Indian Military and was retired from the service in the year 2019 and is receiving pension.

Her petition for attachment of pension for arrears of maintenance was dimissed by the Judicial Magistrate on the ground that there is a bar under Section 60(1)(g) of the Civil Procedure Code.

Her Counsel argued that bar under Section 60(1)(g) is not applicable to the case of maintenance. He further submitted that the maintenance allowance granted to the wife cannot be considered as a debt. Therefore, exemption under Section 11 of the Pension Act 1871 for attachment is also not attracted with regard to the maintenance allowance.

The Court in answering as to whether the maintenance allowance granted to the wife can be attached in view of Bar under Section 60(1)(g) of Civil Procedure Code and Section 11 of Pension Act 1871, after due deliberation held Section 11 of Pension Act 1871 cannot be attracted and as a wife cannot be treated as creditor as provided under the Pension Act and upheld the order of attachment of pension passed by the Family Court for collection of pension amount.

Further, the Court opined that such interpretation will not advance justice and adversely, affect the measure of social justice to protect women.

"If the maintenance allowance is exempted under Section 11 of the Pension Act 1871, the consequence would affect the divorced women's interest, for example, if a Government Servant's wife has got divorced during his service period and she was awarded maintenance by the Competent Court, her maintenance amount was recovered from the salary of her husband and after his retirement, he may get only pension. In such circumstances, if it is exempted from the attachment, the maintenance provided to the wife by statute and by order of Court Decree would become infructuous."

CASE TITLE: P. Amutha vs Gunsekaran

CASE DETAILS: Crl.R.C.No.1501 of 2022

CORAM: Justice V Sivagnanam

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