PENSIONARY BENEFITS FROM BEING ATTACHED TOWARDS ARREARS OF MAINTENANCE PAYABLE TO THE CHILDREN

PENSIONARY BENEFITS FROM BEING ATTACHED TOWARDS ARREARS OF MAINTENANCE PAYABLE TO THE CHILDREN

 A

Pensionary benefits from being attached towards arrears of maintenance payable to the children

Case Details –

Case Type : OP (FC)

Filing Number: 25220/2019

Filing Date: 21-05-2019

Registration Number: 324/2019

Registration Date: 22-05-2019

CNR Number: KLHC01-035121-2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE K.HARILAL

&

THE HONOURABLE MR.JUSTICE C.S.DIAS

WEDNESDAY, THE 29TH DAY OF JANUARY 2020 / 9TH MAGHA, 1941

OP (FC).No.324 OF 2019

AGAINST THE ORDERS IN E.A. NO.81/2017 & E.A. NO.01/2019 IN E.P.

NO.65/2014 IN 183/2005 OF FAMILY COURT, ATTINGAL

PETITIONER/ PETITIONER IN E.A. NO.01/2019 AND

RESPONDENT IN E.A.81/2001/JUDGMENT DEBTOR:

ABDUL SATHAR

AGED 68 YEARS,

S/O. MOHAMMED KUNJU, RESIDING AT K.K.

HOUSE, NADAYARA , VARKALA,

THIRUVANANTHAPURAM DISTRICT.

BY ADVS.

SRI. M.RAJENDRAN NAIR

SMT. M.SANTHY

RESPONDENTS/RESPONDENTS IN E.A.01/2019 & RESPONDENTS IN

E.A 81/2017/DECREE HOLDER:

PATHIMUTHU

AGED 60 YEARS,

D/O. KUNJASAN, KUNNATHOORKONATHU, KEEZHTHONNAKKAL,

NOW RESIDING AT K.K. HOUSE, NADAYARA, VARKALA,

THIRUVANANTHAPURAM DISTRICT-695 0012

SAFAR,

AGED 30 YEARS, S/O. ABDUL SATHAR, RESIDING AT K.K HOUSE, NADAYARA, VARKALA, THIRUVANANTHAPURAM DISTRICT-695 001.

SAIFA,

AGED 27 YEARS, D/O. ABDUL SATHAR, RESIDING AT K.K HOUSE, NADAYARA, VARKALA, THIRUVANANTHAPURAM DISTRICT-695 001.

R1-3 BY ADV. SRI. LATHEESH SEBASTIAN

THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 18-12-2019, THE COURT ON 29-01-2020 DELIVERED THE FOLLOWING:

O.P (FC) No.324 of 2019

JUDGMENT

Dias,J.

“It has been said the difficulties of a litigant begin when he has obtained a decree” observed the Honourable Supreme Court in Shyam Singh v. Collector, District Hamirpur, U.P and Others [1993 Suppl. (1) SCC 693].

2. Shyam Singh (supra) comes to our minds on hearing the two-decade anguish of the children of the petitioner in realising maintenance from him.

3. Is a father’s pensionary benefits exempted from being disbursed towards arrears of maintenance payable to his children is the question that emerges for consideration in this original petition.

4. The congealed facts are: The petitioner is the judgment debtor in E.P.No.65/2014 in O.S No.183/2005 of the Family Court, Attingal. The respondents in the original petition are the petitioner’s wife, son, and daughter, respectively.

5. The respondents had filed O.S 183/2005 against the petitioner seeking maintenance allowance for the respondents 2 and 3.

6. Despite receipt of summons, the petitioner did not choose to contest the proceeding. The petitioner was set exparte. The Family Court passed a decree on 30.12.2011, directing the petitioner to pay monthly maintenance allowance to the respondents 1 and 2 at the rate of Rs.2,000/- each. Although the petitioner filed an application to set aside the ex parte decree, the application was dismissed.

7. The 1st respondent filed E.P. No.65/2014 (Ext.P1) to execute the decree. An application was also filed to direct the petitioner’s employer – the Kerala State Road Transport Corporation (K.S.R.T.C) to withhold the pensionary benefits payable to the petitioner. Subsequently, as per the order in E.A.81/2017, the Family Court directed the K.S.R.T.C to deposit an amount of Rs.1,94,533/-.

8. The petitioner had challenged the order before this Court in O.P (FC) 435/2014. This Court, by judgment dated 30.1.2017, held that the Family Court had not committed any error in directing the K.S.R.T.C to deposit the arrears of maintenance. Nevertheless, this Court directed the petitioner to approach the execution court.

9. Taking a cue from the above observation, the petitioner filed E.A No.1/2019 before the Family Court, to keep all further execution proceedings in abeyance, and that the deposited amount may not be disbursed to the respondents. The respondents opposed the application.

10. The Family Court, by the impugned Exhibit P-5 order, dismissed the application, and allowed E.A No.81/2017, permitting the respondents to withdraw the amount of Rs.1,94,533/- deposited by K.S.R.T.C.

Held……..

40. In the case on hand, the respondents sought for withholding of the petitioner’s pension to satisfy the decree for maintenance passed in favour of respondents 2 and 3 way back on 30.12.2011. Though the execution petition was filed in the year 2014, the petitioner has been procrastinating the same.

41. 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).

42. The Parliament, in its wisdom, to protect the neglected and impoverished women and children, has enacted several legislations, both personal and uniform, applicable to all cross-sections of the society, making it mandatory for a man to maintain his wife and children to alleviate destitution. 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.

43. It is worthwhile to note that Parliament has enacted Section 39 in the Transfer of Property Act, 1882, giving a person who has the right to receive maintenance a charge over the property belonging to the person bound to maintain such person.

44. This Court in Sunitha v. Ramesh [2010 (3)KLT 501] has held that the relationship between the husband and wife, ward and guardian falls within the meaning of ‘fiduciary relationship.’

45. In another illuminating judgment, this Court in Radha v. Deputy Tahsildar [2015 (1) KLT 423], held that the obligation of a husband, who has deserted his wife metamorphoses from a mere obligation into a legal obligation,and that the said right would have precedence over crown debt.

46. In view of our above findings and the law declared in the above authoritative pronouncements, we have no doubt in our minds that the respondents 2 & 3 are not the creditors of the petitioner, falling with the sweep of Rule 124. 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 agonizing delay that has occurred, and the machiavellian methods adopted by the petitioner to thwart the execution proceeding. Therefore, we reject the petitioner’s contention that his pensionary benefits are exempted from attachment.

47. Now coming to the contention of the learned counsel for the petitioner that the stipend and gratuity payable to the petitioner is also exempt from attachment in view of Section 60 (1) (g) of the of the Code.

48. Section 60 (1)(g) of the of the Code of Civil Procedure, 1908 reads thus:

“60. Property liable to attachment and sale in execution of decree- (1) The following property is liable to attachment and sale in execution of a decree, namely, lands, houses or other buildings, goods, money, bank notes, cheques, bills of exchange, hundis, promissory notes, Government securities, bonds or other securities for money, debts, shares in a corporation and, save as hereinafter mentioned, all other saleable property, movable or immovable, belonging to the judgment debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgment-debtor or by another person in trust for him or on his behalf ”.

Provided that the following properties shall not be liable to such attachment or sale, namely:-

a xxxxxxxxx

(a) xxxxxxxxx

(g) stipends and gratuities allowed to pensioners of the Government [or of a local authority or of any other employer], or payable out of any service family pension fund notified in the Official Gazette by [the Central Government or the State Government] in this behalf, and political pension;

(emphasis supplied).

49. In addition to our findings with reference to Rule 124 of Kerala Service Rules – Part III, we find that the Legislature has knowingly included the words “family pension fund” in Section 60 (1) (g) of the Code. 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 above provision is almost analogous to Rule 124 of Kerala Service Rules – Part III. Our findings on Rule 124 is equally applicable to Section 60 (1) (g) of the Code. So there is no legal bar for the respondents 2 and 3 to attach the stipend and gratuity of the petitioner. We hold that the respondents 2 and 3 have the first charge over the properties of the petitioner and their right to be maintained by the petitioner overrides all such exemptions in law.

We do not find any circumstances warranting invocation of the supervisory jurisdiction of this Court as enshrined under Article 227 of the Constitution of India. Accordingly, we dismiss this original petition. We direct the Family Court to forthwith release the entire amount withheld by it to the respondents 2 and 3, and dispose of the execution proceedings, in accordance with law, as expeditiously as possible.

K.HARILAL, JUDGE

C.S.DIAS, JUDGE