Father’s pensionary benefits not exempt from attachment towards payment of maintenance to children: Kerala High Court

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The Petitioner was adopting various dilatory techniques to prevent the pension benefits to be given and enjoyed by the respondents. The Court pointed out the affirmation made by the petitioner before the Family Court to release the money to the respondents and questioned the resistance before the Execution Court. The Hon’ble Kerala High Court held that there is no bar for Respondents 2 and 3 (children of the Petitioner) to attach gratuity and stipend of the Petitioner.

Coram: K.Harilal, Judge, C.S.Dias, Judge 

Facts of the case

  • The petitioner is the judgment debtor of the Family Court, Attingal. The respondents in the original petition are the petitioner’s wife, son, and daughter, respectively. Despite receipt of the summons, the petitioner did not choose to contest the proceeding. The petitioner was set exparte. The Family Court passed a decree on, 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 applied to set aside the ex parte decree, the application was dismissed. 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, the Family Court directed the K.S.R.T.C to deposit an amount of Rs.1, 94,533/-.
  • The petitioner had challenged the order before this Court in O.P (FC) 435/2014. This Court, by judgment 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. Taking a cue from the above observation, the petitioner filed 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. The suit was decreed on 30.12.2011. The petitioner had applied to set aside the ex- parte decree, which was allowed on condition that the petitioner deposits the entire arrears of maintenance.
  • The petitioner failed to comply with the conditional order, and consequentially the application was dismissed. The petitioner challenged the order before the High Court. The High Court dismissed the original petition. As per the decree, a total amount of Rs.3, 70,000/- is due from the petitioner to the respondents.
  • In E.A No.81/2017 filed by the 1st respondent to direct the K.S.R.T.C to deposit the withheld amount and disburse it to the respondents, the petitioner had stated that he had no objection. The petitioner’s pensionary benefits are not attached but only directed to be withheld; therefore, there is no violation of any statutory provision.” The learned counsel for the petitioner argued that under Section 11 of the Pensions Act, 1871 (for brevity referred to as “Act”), no pension granted on account of the past services of an employee is liable to be attached by process of any court. He also relied on Section 60 (1) (g) of the Code of Civil Procedure (in short, “Code”) and argued that stipends and gratuities allowed to pensioners are not liable to attachment. Hence, the impugned order is ex facie erroneous and, therefore, is liable to be set aside.
  • The learned counsel for the respondents argued that the petitioner has been protracting the proceedings for the last two decades, by adopting all sorts of dilatory tactics, and he has refused to maintain his children. The original petition was filed as early, the petitioner’s application to set aside the decree was dismissed by the Family Court and confirmed by this Court.
  • The petitioner was directed to pay the entire arrears of maintenance to the respondents 2 & 3. At that relevant time, the petitioner who was in service maintained a stoic silence. It is only after his retirement, that he has raised the farcical contention that his pension cannot be disbursed to his children. It is now that the petitioner has come up with the present objection that his pension is immune from seizure/attachment under the Pensions Act and Section 60 (1) (g) of the Code.
  • The Family Court rightly rejected the plea, taking note of the fact that the petitioner himself had stated that he had no objection in the amount being released. The decree has become final, but the petitioner is still resisting the execution proceedings. The finding of the Family Court was confirmed by this Court. Therefore, the finding operates as res judicata, and the petitioner has precluded from re-agitating a concluded issue by the principles of issue estoppel. 

Issues before the Hon’ble bench

  • 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.

Order of the court

  • 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. 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 the payment of maintenance redundant. Such a suppressive interpretation cannot be permitted.
  • 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. 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 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, under law, as expeditiously as possible. 

Edited by Vartika Gajendra Singh

Approved & Published – Sakshi Raje

I am Soma Singh from Sharda University School of Law, my interest areas are Corporate law, jurisprudence and ADR. I describe myself as an ambivert. Enjoys reading mythological tales