The Bombay High Court has held that pension granted by the government can be attached in order to recover the amount of maintenance for the wife.
Justice MG Giratkar of the Nagpur bench was hearing the revision application filed by one Bhagwant Narnaware against an order of interim maintenance passed by a magistrate. The court upheld the order but modified the amount of monthly maintenance from Rs.30,000 to Rs.20,000.
It is important to note that domestic violence proceedings initiated against the husband are pending.
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.
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.
Respondent wife's advocate SJ Kadu submitted that pensions can be attached for payment of maintenance amount. He submitted that the applicant husband is a well-settled person having sufficient means and is getting Rs.72,000¬ per month as pension. He pointed to the husband's cross-examination and said he received Rs.20 lakhs in pensionary benefits and has two houses.
After examining Section 11 of the Pensions Act and submissions made by both parties, the court said:
"The above said Section shows that in civil disputes pensions cannot be attached at the instance of creditors. Commentary relied on by learned counsel for the applicant/husband at serial No.16 under head of attachment shows that, "maintenance allowance granted to wife cannot be considered as debt – She is not a creditor hence exemption under S.11 cannot be granted to husband."
The said commentary itself shows that pensions can be attached to recover amount of maintenance. Hence, the stand taken by learned counsel for the applicant/husband that pensions cannot be attached is not digestible."
Thus, the bench partly allowed the said revision application and modified the amount of maintenance ordered to be paid by the magistrate.
Read the Judgment Here