Person Can't Be Sent To Jail For More Than Three Months Over Recovery Of Maintenance Arrears In Subsequent Execution Petition: Delhi High Court

The Delhi High Court has ruled that a person cannot be sent to jail for more than three months, over non-payment of arrears of maintenance to the spouse, in the subsequent execution petitions filed for recovery of maintenance which may accrue from time to time under the same order.

A division bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna analyzed Section 58 (1) of the Code of Civil Procedure, 1908, and ruled that the total period in civil prison in execution of a decree in the same suit cannot exceed three months.

“Though the decree may be executed in instalments as in the case of maintenance orders, but the decree order being only one, arrest can be made as prescribed, for a maximum period of three months,” the court said.

It added that though the execution petition may be filed for realization of maintenance that may become due from time to time, but that would not give a right to seek further imprisonment beyond the maximum period as prescribed under Section 58 (2) of the Code.

“A person who has already having been sent to civil imprisonment for a period of three months, cannot be sent to civil prison again in execution of the same decree for a second time. Further, merely because the judgement debtor had been detained in civil prison for the full term of three months as provided under Section 58 (2) of the CPC, his debt cannot be said to be discharged, which can still be recovered through other means as provided in the section,” the court said.

The bench made the observations while setting aside a family court order which directed a husband to be taken into custody for civil imprisonment on account of non-payment of arrears of maintenance to the wife awarded under Section 24 of the Hindu Marriage Act, 1955.

Allowing the husband's appeal, the court noted that the husband had already served three months of civil imprisonment in an execution petition filed by the wife in 2018.

It thus observed that the husband cannot be directed to be sent to civil imprisonment again in the subsequent execution petition filed by the wife in 2020 regarding the same decree for arrears of maintenance that have subsequently become due.

“In the present times where Rule of Law is the guiding grund norm and each individual has his rights protected under Constitution; the fundamental rights of a person cannot be infringed without following due process of law. 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 said.

Furthermore, the bench also ruled that a decree and order for recovery of the arrears of maintenance passed under Section 24 of the Hindu Marriage Act, shall have the same force and effect as a decree of a Civil Court and has to be recovered as per the procedure given under Order 21 Rule 94 of CPC.

“Thus, we hold that an Order under Section 24 HMA, can be enforced under Section 28-A of HMA, 1955 read with Section 18 of Family Courts Act, 1984 and CPC,” the court said.

Counsel for Appellant: Mr. Parnjay Chopra, Advocate

Counsel for Respondent: Mr. Y.K. Singh & Mr. Pranaynath Jha, Advocates

Title: X v. Y

Citation: 2024 LiveLaw (Del) 132

Click Here To Read Order