Civil Suit For Recovery Of Arrears Of Maintenance Maintainable When Amount Becomes ‘Debt’ And Is Payable To Wife Or Children: Delhi High Court

The Delhi High Court has ruled that arrears of maintenance by a husband becomes “debt” once the definite amount becomes payable to the dependent wife or children or parents which can be recovered by way of a civil suit.

A division bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna held that a civil suit for recovery of maintenance amount, which acquires the character of a “debt” is maintainable, once a final order is made under Section 125 of Cr.P.C.

The court added that once the definite amount becomes due and payable, it becomes a “legal debt”, the recovery of which can be sought by way of a civil suit.

“Conspicuously, no such express or implied bar on the jurisdiction of the Civil Court can be inferred from Section 125 Cr.P.C as the scope and purpose of this section is not to recover maintenance or dues, but prevent vagrancy. Since the object of Section 125 Cr.P.C 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 court said.

Relying on relevant judgments on the subject, the court observed:

“….while the maintenance per se does not have its roots in any contractual obligation and is thereby not a “civil debt”, but once it is determined and concretized by any Order or a Decree, it becomes a definite amount payable to the wife, children and parents, thus acquires the character of a “debt”, which can be recovered by way of a civil suit.”

The court was deciding an appeal filed by a minor son challenging an order passed by the family court dismissing the suit filed by his mother for recovery of maintenance amount Rs.2,78,800 from the father.

The main ground of challenge was with respect to the findings of the family court on the non-maintainability of a civil suit for recovery of arrears of maintenance granted under the maintenance order passed under Section 125 of CrPC, as the only remedy available was to seek execution of such an order.

Allowing the appeal, the bench observed that fiancé’s 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 of commission of offence,” it said.

The bench set aside the impugned order and decreed the suit for a sum of Rs. 2,05,000, along with pendent lite and future interest @ 5% per annum till the date of realization.

“The respondent (husband) shall be at liberty to seek the set off of the amount which may have been paid by him during this period over and above the sum of Rs.85,000/- which has already been adjusted,” the court said.

Title: VASU BAJAJ v. RAKESH BAJAJ

Citation: 2023 LiveLaw (Del) 740

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