HC sets aside order jailing man for second time over non-payment of maintenance to estranged wife

New Delhi, Feb 5 (PTI) The Delhi High Court has set aside an order sentencing a man to "civil imprisonment" for a second time on account of default in payment of maintenance to his estranged wife and said that the law does not provide for re-arrest once he has already undergone the maximum punishment of three months.
     A bench headed by Justice Suresh Kumar Kait underscored that arrest should be ordered in "rare cases of contumacious denial", adding that a decree for payment of maintenance under the Hindu Marriage Act (HMA) may be executed in instalments but the decree being only one, the arrest can be made as prescribed in law i.e. for a maximum period of three months only.
     "The appellant/husband has already been sent for the period of three months to civil imprisonment on 24.02.2021 which was served by him. As the respondent has again filed an execution petition...,the appellant cannot be directed to civil imprisonment again in execution of the same decree for arrears of maintenance that have subsequently become due," the bench, also comprising Justice Neena Bansal Krishna, said in a recent order.
     The CPC provides for civil imprisonment, or detention of a man in case of default in payment of dues to a decree holder.
     "Arrest and jail should be resorted to only in rare cases of contumacious denial to pay the maintenance despite having means and even when such imprisonment is granted, it is hedged upto a period of maximum three months," the court stated.
     In the present case, in 2015, the family court awarded an interim maintenance of Rs 44,000 to the wife and children by the husband under the HMA, and in 2021, he was taken into custody and sent to civil imprisonment for the period of three months for non-payment.
     Subsequently, the wife filed another plea for execution and on September 30, 2022, the family court considered the conduct of the husband in not complying with the 2015 maintenance order, pursuant to which an amount of approximately Rs 22,00,000 towards maintenance had accumulated, and directed that he be sent to civil imprisonment till October 26, 2022.
     The court, in its order, said the total period in civil prison in execution of the decree in the same case cannot exceed three months and the fundamental rights of a person cannot be infringed without following due process of law.
     "It is not as if after the person has suffered the imprisonment of three months that the debt gets extinguished and the decree holder can resort to other means of recovery like attachment and sale of the property of the judgement debtor," the court remarked.
     The court also clarified that the legal position under the HMA was different from the maintenance proceedings under section 125 of Criminal Procedure Code (CPC) in which the defaulter can be sent to one month imprisonment for a default of every month in payment of maintenance.
     "The stark distinction between execution proceedings for an order under Section 125 CrPC and Section 24 HMA is evident from the language used in the relevant sections. The present order being under Section 24 HMA, the execution petition is governed by the provisions of CPC, 1908 which does not provide for re-arrest once the person has undergone the maximum period of three months of civil imprisonment," the court said.
     "We, therefore, find that impugned Order of detention of the appellant/husband sentencing him to undergo civil imprisonment for another period three months in compliance of the same maintenance Decree is not justified. The impugned Order dated 30.09.2022 is hereby set aside," the order said.

(This story has not been edited by THE WEEK and is auto-generated from PTI)