New Delhi: Asserting that the payment of maintenance is not just a legal right, but also a social and moral obligation imposed on the husband, the Delhi High Court Wednesday ruled that a civil suit for recovery of arrears of maintenance can be filed as it becomes “legal debt” once a final order is issued under Section 125 of the Code of Criminal Procedure (CrPc).
While Section 125 of the CrPC governs the law on maintenance to wives, children and parents, Section 125(3) deals with a situation where a person fails to comply with any order of maintenance without any cause.
In the event of such a situation, the magistrate can issue a warrant for collecting the due amount in the manner provided for levying fines, or to even impose a one-month jail term. The provision, however, adds that any such warrant cannot be issued, unless such an application is filed within one year from the date on which this amount becomes due.
In other words, Section 125(3) only allows a petition for execution or implementation of a maintenance order to be filed within one year from the date on which this amount becomes due.
Now, the high court has ruled that arrears of maintenance pending for over a year can be recovered through a civil suit, even if the recourse under Section 125(3) before the magistrate isn’t available anymore.
“Since the object of Section 125 CrPC embodies only the social obligation of a husband towards his wife, parents and children, it becomes a debt only when the amount payable to the dependant/wife is crystallized by way of a judgment or a decree,” the bench comprising Justices Neena Bansal Krishna and Suresh Kumar Kait explained.
“Once a definite amount becomes due and payable, it becomes a legal debt. Therefore, the recovery of which can be sought by way of a civil suit,” it added.
The bench was hearing an appeal challenging a May 2019 judgment of a family court, which dismissed a wife’s suit on behalf of her minor son for recovery of Rs 1.78 lakh as arrears of maintenance.
The woman had been granted maintenance of Rs 5,000 per month in January 2010, from the date when she filed the application in February 2008.
After the husband failed to pay maintenance, she approached the metropolitan magistrate in May 2012, for recovery of arrears of maintenance. However, the magistrate only granted her arrears for the one-year period beginning May 2011, instead of granting the total amount from 2008.
On appeal, the family court ruled that a civil suit was not maintainable, or cannot be filed for recovery of arrears of maintenance granted under the maintenance order by the metropolitan magistrate.
This order was set aside by the high court, which further allowed the suit for an amount of Rs 2.05 lakh along with interest of 5 percent.
The case
The couple had tied the knot in December 1999 and had a son in November 2000.
The wife alleged that she was being “harassed and beaten mercilessly”, according to the high court judgment. She also alleged that her husband and mother-in-law threw her and her son out of the house in January 2003, following which she shifted to a rented accommodation.
She then filed an application under the Protection of Women from Domestic Violence Act in February 2008, seeking a monthly maintenance of Rs 20,000 along with compensation of Rs 10 lakh for the mental and emotional distress and the right of residence in the matrimonial home.
In January 2010, a metropolitan magistrate granted her maintenance of Rs. 5,000 per month for the son. The boy’s father challenged this order the same month, but it was rejected in August that year.
Upon the husband’s failure to pay monthly maintenance, the woman then filed an execution petition under Section 125(3) of the CrPC for recovery of arrears of maintenance in May 2012.
Subsequently, the petition was allowed but only for Rs 60,000 as the maintenance amount for the period from May 2011 to May 2012. The woman, then, approached the family court, with the civil suit for recovery of Rs 2.78 lakh, claiming her husband was liable to pay arrears of maintenance from February 2008.
She asserted that her husband was evading the payment of maintenance simply because of the procedure under Section 125(3) of CrPC. This, she submitted to the family court, does not absolve him of his liability with respect to the arrears in payment.
What does law say
The high court noted that once the maintenance is determined under Section 125(1) of the CrPC, the next question is on the process of implementing this order to recover any arrear. One of the recovery modes is provided under Section 125(3) of CrPC, it added.
The bench then reviewed whether the maintenance that may have become due prior to one year from the date of application can also be recovered.
It noted that the Supreme Court has ruled that Section 125 of CrPC merely provides a procedure for recovery of maintenance by construing it as a levy of fine, and ordering the detention of the defaulter in custody.
This punitive remedy would not be available to a claimant who has not approached the court within a period of one year commencing from the date when the maintenance becomes due and payable, the bench said, while explaining the Supreme Court’s stand on the issue.
The high court clarified that even in such a case, when the remedy under Section 125 of CrPC was not available, the victim can still recover the amount of maintenance through a civil suit.
‘Financial sustenance becomes a big concern’
Referring to Supreme Court judgments, the high court asserted that “the provisions of maintenance for wife, dependent parents and children, aside from being a legal right, is also a social and moral obligation imposed on the husband which cannot be easily avoided.”
While “maintenance per se does not have its roots in any contractual obligation” and so is not a “civil debt”, the bench said, it acquires the character of a debt which can be recovered by a civil suit, once the maintenance amount is determined and set by a court order.
“Financial sustenance becomes a big concern for women and children who are completely dependent on the husband. Fighting court battles for maintenance in an already destitute state can turn out to be arduous to the victims, rendering the fight to be a futile exercise. Thus, the objective of introducing Section 125 Cr.P.C was to prevent penury and vagrancy, which many a times, become a reason for commission of offence,” the court elaborated.
Turning to the case, the bench asserted that the liability to pay maintenance continues which may be recovered by any other available modes. The question was now whether there is any other remedy available to the appellant to recover this amount.
The high court then considered whether the arrears in maintenance become “debt” for the recovery of which a civil suit can be filed.
Answering the question in the affirmative, it ruled that a civil suit for recovery of maintenance — which acquires the character of a “debt” once a final order is made under Section 125 of CrPC — can be filed.
(Edited by Tony Rai)
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