No bar on attachment of Pension to recover Maintenance, Bombay HC

The Bombay High Court recently held that there is no bar on attaching a husband’s pension for the purpose of recovering maintenance due to his wife.

Sitting at the Nagpur Bench, Justice MG Giratkar passed a judgment to this effect while disposing of a revision application filed against an interim order of the Magistrate Court. During the course of proceedings initiated under the Domestic Violence Act, the Magistrate had ordered the attachment of the husband’s pension to secure the payment of Rs 30, 000 as interim maintenance to the wife every month.

The husband had filed a revision application challenging the same. For the husband, it was contended that the Magistrate had overstepped his jurisdiction in ordering the attachment of pension for recovery of maintenance. In this regard, reference was made to Section 11 of the Pensions Act, 1871 which deals with “exemption of pension from attachment”. This provision states that,

“No pension granted or continued by Government on political considerations, or on account of past services or present infirmities or as a compassionate allowance, and no money due or to become due on account of any such pension or allowance. shall be liable to seizure, attachment or sequestration by process of any Court at the instance of a creditor, for, any demand against the pensioner, or in satisfaction of a decree or order of any such Court.”

The Court, however, pointed out that the provision only bars attachment of pension at the instance of a creditor. It was observed,

“The above said Section shows that in civil disputes pensions cannot be attached at the instance of creditors.“

On the other hand, it was noted that a wife cannot be termed a creditor. Therefore, the Court concluded that the attachment of pension cannot be barred for the recovery of maintenance in favour of the wife. This was supported by commentary relied upon by the husband’s counsel. The Court noted,

“… 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. (1985)87 Punk LR 682 : (1985) 12 Cri LT 219’. 

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.“

In view of this observation, the Court refused to quash the Magistrate’s order on the aspect of attaching the husband’s pension for recovering the maintenance due to his wife. However, the Court reduced the amount of maintenance payable from Rs 30, 000 to Rs 20, 000, opining that the amount ordered to be paid by the Magistrate was exorbitant on the facts of the case.

Accordingly, the Court ordered as follows,

“Instead of Rs.30,000/­ per month, the applicant/husband shall pay Rs.20,000/­ per month towards interim maintenance to his wife during the pendency of D.V.Act proceedings.

The order of attachment of pension is hereby quashed and set aside subject to the applicant/husband clears all arrears of maintenance within a period of one month from today.“

Before parting with the matter, the Court also directed the Magistrate to conclude the case within a period of three months.