Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Reserved on:26 September, 2023
st
Pronounced on: 1 February, 2024
+ MAT.APP.(F.C.) 172/2022 & CM APPL. 64721/2022 (Stay)
MOHIET ANAND ..... Appellant
Through: Mr. Parnjay Chopra, Advocate.
versus
PARUL ANAND .....Respondent
Through: Mr. Y.K. Singh & Mr. Pranaynath Jha,
Advocates with respondent in person.
CORAM:
HON’BLE MR. JUSTICE SURESH KUMAR KAIT
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
J U D G M E N T
NEENA BANSAL KRISHNA, J.
1. The present Appeal under Section 19 of the Family Courts Act, 1984
has been filed on behalf of the appellant/husband against the Order dated
30.09.2022 vide which the appellant/husband has been directed to be taken
into Custody for civil imprisonment on account of non-payment of arrears of
maintenance awarded under Section 24 of the Hindu Marriage Act, 1955
(hereinafter referred to as “HMA, 1955” ) in the Execution Petition No.
11/2020 .
2. Briefly stated, the facts are that the parties got married on 14.04.1999
according to Hindu Rites and ceremonies. However, due to differences
between them, the respondent/wife separated from the appellant/husband
and filed a Divorce Petition bearing No. HMA 630 of 2014 (re-registered as
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HMA No. 48/2018) under Section 13(1)(ia) of the HMA, 1955. During the
trial, an Order dated 28.09.2015 under Section 24 of HMA, 1955 was made
against the appellant/husband vide which he was directed to pay Rs. 14,000/-
per month to each of the two children and Rs. 16,000/- per month to the
respondent/wife from the date of filing of the application. In addition to
maintenance, Rs. 20,000/- as litigation expenses was given to the
respondent/wife.
3. While the divorce proceedings were pending, the respondent/wife
filed t he Execution Petition No. 27/2018 seeking enforcement of the interim
Order dated 28.09.2015 granting the interim maintenance to the wife and the
children. In this Execution Petition, the appellant/husband was taken into
custody and sent to civil imprisonment on 24.02.2021 for the maximum
sentence period of three months, which was served by the
appellant/husband.
4. The appellant/husband failed to appear in the Divorce Proceedings
and he was proceeded ex parte and the divorce was granted vide Judgment
dated 22.05.2020.
5. The respondent filed another Execution Petition bearing No.
11/2020 for the execution of the same Order dated 28.09.2015 of interim
maintenance. Now again, the learned Family Judge vide Order dated
30.09.2022 directed that as the Judgment Debtor/appellant/husband was not
willing to make the payment of arrears of maintenance amounting to Rs.
22,00,000/- till the date of Divorce decree, he be taken into custody and be
sent to civil imprisonment till 26.10.2022. The respondent/wife was directed
to deposit the subsistence allowance within three days, as per Rules.
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6. The appellant/husband aggrieved by the impugned Order dated
30.09.2022, has preferred the present Appeal.
7. It is submitted on behalf of the Appellant that the impugned Order
dated 30.09.2022 of remanding the appellant/husband to civil imprisonment
is absolutely illegal and perverse in terms of Section 58 of the Code of Civil
Procedure, 1908 (hereinafter referred to as “CPC, 1908” ). The
appellant/husband has already served the maximum punishment of three
months as stipulated in Section 58 of CPC, 1908 in regard to interim
maintenance Order dated 28.09.2015 and he cannot be sent to jail again for
the execution of the same Order.
8. It is further submitted that, while in a proceeding under Section 125
Code of Criminal Procedure, the learned Judge can sentence the appellant to
imprisonment for each month's default, the same is not permissible in civil
proceedings. Reliance has been placed on the case of Rajnesh v. Neha
(2021) 2 SCC 324 wherein the Supreme Court categorically the order of
maintenance may be enforced as a money decree of a civil court as per the
provisions of the CPC, more particularly Sections 51, 55, 58, 60 read with
Order 21 .
9. It is alleged that the Order dated 30.09.2022 is in direct contravention
of Order XXI Rule 11A of the CPC, since there was no Application seeking
arrest of the appellant, made by the decree holder/respondent. Further, there
was no Show Cause Notice issued to the appellant before the passing of the
Order and thus, the same is liable to be set aside on this sole ground itself.
10. It is, therefore, submitted that the impugned Order dated 30.09.2022
of the learned Judge, Family Court passed in the Execution Petition No.
11/2020, be set aside.
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11. Vide order dated 03.11.2022, this Court granted stay against the
appellant being taken into custody in terms of impugned Order of the
learned Judge, Family Court which was continued for subsequent dates.
12. The respondent/wife appeared through her counsel, though no
formal Reply has been filed on her behalf.
13. The appellant in his Written Submissions has submitted that as per
Section 18 of the Family Courts Act, the Family Court is bound to execute
Orders in accordance with the procedure provided under CPC. However, the
Order passed by the learned Judge, Family Court directing the appellant to
Civil imprisonment the second time in execution of the same Order of
maintenance, is contrary to the statutory scheme as provided under Sections
36, 51(c) and 58(2) of the CPC. Reliance has been placed on the case of M/s
Bhandari Engineers & Builders Pvt Ltd v. M/s Maharia Raj Joint Venture &
Ors 2021 SCC OnLine Del 3595; Dhanalakshmi Ammal v. Krishnamurthi,
AIR 1951 Mad 756; Damiran Sen v. Arpita Sen, 2008 SCC OnLine Cal 647;
Sanjeeet Singh v. Anupama 245 (2017) DLT 145: Rajesh Arora v. Sonia
Arora and Anr . 2020 SCC OnLine P&H 4562; Jolly George Verghese and
Another v. Bank of Cochin, (1980) 2 SCR 913 and Damodar Shaligram v.
Malhari and Ors . ILR 1883 7 BOM, in this regard.
14. Submissions heard from the counsels for the parties and the
documents as well as the evidence perused.
15. The factual background is that the parties had got married on
14.04.1999 according to the Hindu customs and rites. It was their love
marriage which did not have the approval of the parents of the parties.
Subsequently, differences arose between the parties and the respondent/wife
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MAT.APP. (F.C.) 172/2022 Page 4 of 20
left the company of the appellant/husband and instituted the Divorce Petition
under Section 13(1)(ia) of HMA, 1955 on the ground of cruelty.
16. The interim maintenance was granted vide Order dated 28.09.2015
under Section 24 of HMA, 1955 in a total sum of Rs. 44,000/- for the
respondent/wife and the two children. The appellant/husband failed to
contest the aforesaid Divorce Petition and was proceeded ex parte .
Accordingly, the divorce was granted to the respondent/wife vide Order
dated 22.05.2020.
17. The respondent, during the pendency of the Divorce proceedings,
filed an Execution Petition bearing No. 27/2018 in respect of order of
interim maintenance dated 28.09.2015 claiming maintenance arrears. In the
said proceedings, on account of non-payment of the maintenance, the
appellant/husband was taken into custody and sent to civil imprisonment on
24.02.2021 for the period of three months which was the maximum sentence
and the same was served by the appellant/husband.
18. During the pendency of the earlier Execution Petition, the respondent
had filed another Execution Petition No. 11/2020, which is the subject
matter of this Appeal. The learned Judge, Family Court vide impugned
Order dated 30.09.2022 considered the conduct of the appellant/husband in
not complying with the maintenance order pursuant to which an amount of
approximately Rs. 22,00,000/- towards maintenance had got accumulated,
which the appellant/husband was refusing to pay. The Family Court
observed that even though the appellant/husband had been earlier sent to the
civil imprisonment in the year 2021, despite this he is not willing to make
payment. As the decree holder could file separate Execution Petitions for
each month’s default, the appellant/husband could repeatedly be sent to civil
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MAT.APP. (F.C.) 172/2022 Page 5 of 20
imprisonment for each monthly default and therefore, the appellant was
directed to be taken into custody, and sent to civil imprisonment on
26.10.2022.
19. However, on the same date, at about 03:30 P.M. on tendering of
Demand Draft of Rs. 2,00,000/- drawn in favour of the
respondent/wife/Decree Holder, the order of Civil Imprisonment was
suspended till clarification on the point of law about civil imprisonments in
case of monthly maintenance was sought from this Court, which is being
discussed in the present case.
20. At the outset, it is pertinent to analyse the law with respect to
enforcement of orders of maintenance.
I. Whether maintenance Decree to be executed in accordance with the
provisions of Code of Civil Procedure:
21. Section 18 of the Family Courts Act, 1984 provides for execution of
decrees and orders passed by a Family Court as per the provisions of
CPC/CrPC and reads as under:-.
"Section 18. Execution of decrees and orders.—
(1) A decree or an order [other than an order under
Chapter IX of the Code of Criminal Procedure, 1973 (2 of
1974)], passed by a Family Court shall have the same
force and effect as a decree or order of a civil court and
shall be executed in the same manner as is prescribed by
the Code of Civil Procedure, 1908 (5 of 1908) for the
execution of decrees and orders.
(2) An order passed by a Family Court under Chapter IX of
the Code of Criminal Procedure, 1973 (2 of 1974) shall be
executed in the manner prescribed for the execution of such
order by that Code.
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(3) A decree or order may be executed either by the Family
Court which passed it or by the other Family Court or
ordinary civil court to which it is sent for execution."
22. In the case of Rajnesh (Supra), the Apex Court has expounded that an
application for an order of Execution may be filed under the following
provisions, as may be applicable:
a) Section 28-A of HMA, 1955 read with Section 18 of Family Courts
Act, 1984 and Order 21 Rule 94 CPC for executing an Order under
Section 24 HMA (before the Family Court);
b) Section 20(6) of the DV Act, before the Judicial Magistrate;
c) Section 128 CrPC before the Magistrate’s Court.
23. The Supreme Court in the case of Rajnesh (Supra), categorically held
that "For enforcement/execution of orders of maintenance, it is directed that
an order or decree of maintenance may be enforced under Section 28-A of
the Hindu Marriage Act, 1955; Section 20(6) of the DV Act; and Section 128
of CrPC, as may be applicable. The order of maintenance may be enforced
as a money decree of a civil court as per the provisions of the CPC, more
particularly Sections 51, 55, 58, 60 read with Order 21 ."
24. Therefore, it is evident a Decree and Order for recovery of the arrears
of maintenance passed under Section 24 of the HMA, 1955, shall have the
same force and effect as a decree of a Civil Court and has to be recovered as
per the procedure detailed in Order 21 Rule 94 CPC, 1908. 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.
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II. Procedure under CPC for Civil Imprisonment in default of payment
in execution of a Money Decree.
25. Having concluded that an Order of maintenance under Section 24
HMA is executable like a money Decree under the Code of Civil Procedure,
we may advert to the relevant sections. Section 51 of the CPC defines the
scope and powers of the Court to enforce execution which reads as under: -
― Section 51: Powers of Court to enforce execution .––
Subject to such conditions and limitations as may be prescribed,
the Court may, on the application of the decree-holder, order
execution of the decree
(a) by delivery of any property specifically decreed;
(b) by attachment and sale or by the sale without attachment of
any property;
(c) by arrest and detention in prison [ for such period not
exceeding the period specified in section 58, where arrest and
detention is permissible under that section ];
(d) by appointing a receiver; or
(e) in such other manner as the nature of the relief granted may
require:
Provided that, where the decree is for the payment of money,
execution by detention in prison shall not be ordered unless,
after giving the judgment-debtor an opportunity of showing
cause why he should not be committed to prison , the Court, for
reasons recorded in writing, is satisfied—
(a) that the judgment-debtor, with the object or effect of
obstructing or delaying the execution of the decree,--
(i) is likely to abscond or leave the local limits of the
jurisdiction of the Court, or
(ii) has, after the institution of the suit in which the decree was
passed, dishonestly transferred, concealed, or removed any part
of his property, or committed any other act of bad faith in
relation to his property, or
(b ) that the judgment-debtor has, or has had since the date of
the decree the means to pay the amount of the decree or some
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substantial part thereof and refuses or neglects or has refused
or neglected to pay the same, or
(c) that the decree is for a sum for which the judgment-debtor
was bound in a fiduciary capacity to account.‖
26. Rules 37 and 40 of Order XXI, CPC further prescribe the procedure
for detention of a judgment debtor in prison as under:-
Order XXI: Execution of Decrees and Orders Payment under
Decree-
Rule 37. Discretionary power to permit judgment-debtor to
show cause against detention in prison.
(1) Notwithstanding anything in these rules, where an
application is for the execution of a decree for the
payment of money by the arrest and detention in the civil
prison of a judgment-debtor who is liable to be arrested
in pursuance of the application, the Court [shall],
instead of issuing a warrant for his arrest, issue a notice
calling upon him to appear before the Court on a day to
be specified in the notice and show cause why he should
not be committed to the civil prison :
[Provided that such notice shall not be necessary if the
Court is satisfied, by affidavit, or otherwise, that, with the
object or effect of delaying the execution of the decree,
the judgment-debtor is likely to abscond or leave the local
limits of the jurisdiction of the Court.]
(2) Where appearance is not made in obedience to the
notice, the Court shall, if the decree-holder so requires,
issue a warrant for the arrest of the judgment-debtor.”
Rule 40. Proceedings on appearance of judgment-debtor in
obedience to notice or after arrest.—
(1) When a judgment-debtor appears before the Court in
obedience to a notice issued under rule 37, or is brought
before the Court after being arrested in execution of a
decree for the payment of money, the Court shall proceed
to hear the decree-holder and take all such evidence as
may be produced by him in support of his application for
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execution and shall then give the judgment-debtor an
opportunity of showing cause why he should not be
committed to the civil prison.
(2) Pending the conclusion of the inquiry under sub-rule
(1) the Court may, in its discretion, order the judgment-
debtor to be detained in the custody of an officer of the
Court or release him on his furnishing security to the
satisfaction of the Court for his appearance when
required.
(3) Upon the conclusion of the inquiry under sub-rule
(1) the Court may, subject to the provisions of section 51
and to the other provisions of this Code, make an order
for the detention of the judgment debtor in the civil
prison and shall in that event cause him to be arrested if
he is not already under arrest:
Provided that in order to give the judgment-debtor an
opportunity of satisfying the decree, the Court may,
before making the order of detention, leave the judgment-
debtor in the custody of an officer of the Court for a
specified period not exceeding fifteen days or release him
on his furnishing security to the satisfaction of the Court
for his appearance at the expiration of the specified
period if the decree be not sooner satisfied.
(4) A judgment-debtor released under this rule may be re-
arrested.
(5) When the Court does not make an order of detention
under sub-rule (3) it shall disallow the application and, if
the judgment-debtor is under arrest, direct his release.]
27. It is gleaned from a bare perusal of the above provisions that Section
51 of CPC, 1908, prescribes four main modes of execution:
i. By delivery of property specifically decreed;
ii. By attachment and sale of property;
iii. Detention in prison in execution of a money decree; or
iv. Appointment of Receiver.
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28. Proviso to Section 51 prescribes twin test to be satisfied before any
person can be ordered to be detained in civil imprisonment; viz, firstly, there
is an opportunity is given to Show Cause to the Judgment Debtor to explain
as to why he should not be committed to prison. Secondly , it is after the
Court arrives at a satisfaction which is to be recorded in writing, that the
Judgment Debtor has since the date of decree, means to pay the amount or
substantial part thereof and refuses or neglects to pay the same or that he is
likely to transfer his money or is likely to abscond , that detention of the
judgment debtor can be directed.
29. Rule 37 of Order XXI, CPC explains the procedure to be followed
for arrest. It states that the process be commenced on an application being
filed by the decree Holder for arrest of the Judgement Debtor and a Notice
be issued to show cause why he should not be detained in civil
imprisonment though warrants of arrest may be issued to secure his presence
where the Court is satisfied by an affidavit or otherwise, that there is
likelihood of his absconding or leaving the jurisdiction of the Court with an
object to delay the execution and to avoid the compliance of the Orders. The
warrants for arrest issued under Rule 37(2) is only to ensure the appearance
of judgement debtor to undergo the mandatory inquiry under Rule 40 CPC.
In such a case, it is necessary for the Court to record its reasons, for a non-
speaking order is as good as an arbitrary and draconian action against a
person depriving him of his fundamental right to liberty contrary to the due
process of law. This mandatory provision ensures the preservation of an
individual's right to liberty, enshrined in Article 21 of our Constitution, by
following the principle of natural justice and audi alteram partem as
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observed by the High Court of Punjab and Haryana in the case of Rajesh
Arora (Supra) .
30. Rule 40 of Order XXI, CPC further provides for the procedure for
holding the mandatory inquiry before remanding the person to prison. On
securing the presence of the judgement debtor under Rule 37 before the
court, all such evidence be taken by the court as may be produced by decree
holder in support of his application for execution. Thereafter, the judgement
debtor shall also be given of showing cause why he should not be committed
to the civil prison. While the enquiry is underway, the judgement debtor
may either be released on furnishing of a security or be arrested but this
duration shall not be more than 15 days. Once the enquiry is concluded, then
too, before ordering the imprisonment, the Court shall give an opportunity to
satisfy the decree on his furnishing a security, before finally directing the
Civil imprisonment. Sub-rule 3 of Rule 40 subjects the Court's power of
detaining the judgment-debtor in civil prison to the provisions of Section 51.
Therefore, the Court cannot order detention unless it is satisfied that any
of the three conditions in the Proviso to Section 51, exist.
31. The detailed procedure as prescribed in the aforesaid rules makes it
abundantly clear that a person’s personal liberty cannot be curtailed only on
the asking of the decree holder but arrest is to be resorted to only after
scrupulous adherence to the procedure when faced with the recalcitrant
attitude of the judgement debtor.
32. The impugned Order does not reflect that any Show-Cause Notice
was given to the appellant/husband to explain as to why he should not be
sent to civil imprisonment. Moreover, there is no satisfaction recorded in
writing that the appellant/husband since the date of Order, has means to pay
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the money, but he is intentionally neglecting or refusing to pay. Unless there
is a finding that the non-payment is on account of wilful conduct of the
appellant/husband intending to defeat the bona fide claim of the respondent,
the Order of sending him to civil imprisonment, is neither justified nor
warranted.
33. The learned Judge, Family Court has failed to follow the procedure as
prescribed under Section 51 read with Rule 37 and 40 of CPC, 1908 before
directing the detention of the appellant/husband in the civil imprisonment.
III. Can a Judgement Debtor be sent to Jail for more than three
months in repeat Execution Petitions for recovery of
maintenance that may accrue from time to time:
34. The appellant has further contended that in the execution of the same
civil decree, a person cannot be re-arrested and sent to jail in all or a period
of more than three months.
35. An interesting question which arises for this court’s consideration is:
whether in execution of a money (maintenance) decree, a person can be sent
repeatedly to imprisonment, beyond a maximum period of three months in
subsequent Execution Petitions that may get filed for the maintenance that
may accrue from time to time under the same Order of maintenance.
36. Section 58 (1) of CPC, 1908 provides for the detention of the JD in
execution of a decree and reads as under: -
“Section 58: Detention and Release.––
(1) Every person detained in the civil prison in execution of a
decree shall be so detained,
(a ) where the decree is for the payment of a sum of money
exceeding [five thousand rupees], for a period not exceeding
three months , and,
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(b) where the decree is for the payment of a sum of money
exceeding two thousand rupees, but not exceeding five thousand
rupees, for a period not exceeding six weeks .
(2) A judgment-debtor released from detention under this
section shall not merely by reason of his release be discharged
from his debt, but he shall not be liable to be re-arrested under
the decree in execution of which he was detained in the civil
prison. ‖
37. According to Section 58(1) of CPC, 1908, in execution of money
decree, civil imprisonment may be given to a person for a period not
exceeding three months , in case the payment is of a sum of money
exceeding Rs. 5,000/-. Further, as per the explicit wording of Clause 2 of
Section 58 of CPC, 1908, a judgement debtor cannot be ' re-arrested under
the decree in execution of which he was detained in the civil prison'.
38. In the case of Damodar Shaligram (Supra), the plaintiff had obtained
a decree entitling him to recover money in three annual instalments. He
obtained a warrant of arrest for the amount of costs, pursuant to which one
of the defendant was arrested and also discharged on the request of the
plaintiff on the next day. After the first instalment became due, the decree
holder again sought arrest of judgement debtor as he defaulted in payment. It
was held that the plain language of Section 341 of CPC ( Old CPC having
similar provision ) says that a judgment debtor cannot be re-arrested under
the decree in execution of which he was already imprisoned. This section
read along with the definition of a decree as given in the interpretation
clause shows that the legislature intended that the judgment debtor should
not be imprisoned more than once under the same decree. Further, Sections
224(b), 230 and 235 CPC use the term “execution of a decree”, “execute a
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decree” and “enforce a decree” in regard to the Decree executed in part or its
entirety.
39. In the case of Dhanalakshmi Ammal (Supra) a question along similar
lines came up for the consideration of court that whether a judgment-
debtor/husband in in an Execution Petition for maintenance decree, after
having been committed to jail for the period of six months i.e. the
maximum period under Section 58(2) of the CPC (old Code), could be sent
again to civil prison in another Execution Petition for recovering
maintenance which had accrued by then.
40. The argument that a maintenance decree can be considered as a
composite decree consisting of bundle of separate money decrees, in which
re-arrests and re-commitments are possible was rejected by the Court. It was
observed that a composite decree is like a tamarind or a mango tree having
many branches while other decrees are like a coconut tree having no
branches. But both kind of trees have one main trunk which can be cut at the
root. Though the original branches may be many and new branches may
spring into being, but the trunk and the root are one. Thus, as the tree is the
same, rearrest and recommitment to the civil prison will thus, be barred
under Section 58(2) CPC. It was observed that the origin of the maintenance
decree is the date when it was passed and the end of it when the decree
holder dies.
41. The situation of repeatedly sending a person to jail on recurring
defaults in payment of maintenance was held akin to the story of
Vikramaditya of spending six months in one place and six months another,
except that instead of being in town and forest, but it would be in jail and
hiding. Thus, it was observed that a wife could not make a husband go to
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jail, every time he would be released from jail for earlier default, for the
maintenance that would have accrued for the subsequent months in the
meanwhile.
42. Further, the plea that the decree holder woman approaching the Court
and seeking imprisonment of her husband at her own cost, reflects her
pitiable and desperate condition was rejected by observing that in insisting
on imprisonment, the wife may be deriving pleasure to ensure that he does
not live with his second wife, to whom he had got married. It was concluded
that the courts cannot be guided by emotions but have to work strictly within
the confines of mandatory provisions of Law. In this case, a reference was
made to Damodar Shaligram (Supra) wherein it was observed that “ this
section is one clearly intended to operate in restriction of the power of
arrest and in favour of liberty and should be construed according to the
plain meaning of the terms‖ .
43. 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. 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.
44. In the case of Samiran Sen (Supra) wherein the husband was kept in a
civil prison for his failure to pay the outstanding amount of maintenance, it
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was observed by the Court that as per Section 58 of the CPC, a person could
not in any circumstances be detained in a civil prison for execution of a
decree beyond a period of three months. If any such order was made by a
Civil Court directing a person to imprisonment beyond a period of three
months, the same would be in violation of Article 21 of the Constitution of
India. It was further observed that while Section 58 (2) provides that merely
because the judgement-debtor was detained in civil prison his debt could not
be held to be discharged, however, it also provides that the judgment debtor
shall not be liable to be re-arrested under the decree, in execution of which
he was already detained in civil prison.
45. Likewise, In the case of Santosh Kumar Mode and Ors. v. Adaita
Ballav Satpathy AIR 1992 Ori 29, it was observed that the debt cannot be
held to be discharged merely because the judgement-debtor was detained in
civil prison for full term under Section 58 (2) of CPC. It was held that
discharge of a debt could take place either by operation of law or by express
volition of the decree-holder.
46. We thus conclude that it is the total period in civil prison in
execution of the 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. Though the execution
petition may be filed for realization of the 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 by Section 58 (2)
of the CPC. A person who has already having been sent to civil
imprisonment for a period of three months, cannot be sent to civil
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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.
47. In the present case, in Execution Petition bearing No. 27/2018 filed by
the respondent of Order dated 28.09.2015, 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 bearing No. 11/2020 of the same Order dated 28.09.2015,
the appellant cannot be directed to civil imprisonment again in execution of
the same decree for arrears of maintenance that have subsequently become
due.
Civil Imprisonment under S.125 Code of Criminal Procedure:
48. The appellant/husband has rightly contented that he could have been
repeatedly sent to jail but that that would only be permissible in execution of
the Order of Maintenance granted under Section 125 of Code of Criminal
Procedure, 1973 (hereinafter referred to as “Cr.P.C., 1973” ) .
49. Section 125 (3) of Cr.P.C., 1973 reads as under: -
― Section 125 (3): ––
(3) If any person so ordered fails without sufficient cause to
comply with the order, any such Magistrate may, for every
breach of the order, issue a warrant for levying the amount due
in the manner provided for levying fines, and may sentence
such person, for the whole or any part of each month
[allowance for the maintenance or the interim maintenance and
expenses of proceeding, as the case may be,] remaining unpaid
after the execution of the warrant, to imprisonment for a term
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which may extend to one month or until payment if sooner
made :
Provided that no warrant shall be issued for the recovery of any
amount due under this section unless application be made to the
Court to levy such amount within a period of one year from the
date on which it became due:
Provided further that if such person offers to maintain his wife
on condition of her living with him, and she refuses to live with
him, such Magistrate may consider any grounds of refusal
stated by her, and may make an order under this section
notwithstanding such offer, if he is satisfied that there is just
ground for so doing.‖
50. From the bare perusal of the aforesaid section, it is evident that for a
default of every month in payment of maintenance, the defaulter can be sent
to one month imprisonment. Therefore, for every month, the defaulter is
liable to be sent to one month imprisonment.
51. 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.
52. 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.
53. Before we part with this Judgment, it is noted in Order dated
30.09.2022 passed at 3.30 PM by the learned Judge, Family Court that
learned counsel for JD appeared with Demand Draft of Rs.2 lacs in the name
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of DH and submitted that order taking the JD into custody be suspended till
they approach the High Court with respect to clarification regarding the
position of law about civil imprisonment in the case of monthly maintenance
granted to DH. Learned Judge is not a layman, he is duty bound to know the
position of law, and, there was no necessity to record said submission of
learned counsel for JD. As the learned Judge has suspended order of taking
JD in custody on taking Demand Draft of Rs. 2 Lacs in favour of DH and a
separate undertaking of the JD was also recorded to appear on the next date
of hearing, we refrain from commenting much.
54. Accordingly, the present appeal is allowed and the pending
application is disposed of.
(NEENA BANSAL KRISHNA)
JUDGE
(SURESH KUMAR KAIT)
JUDGE
FEBRUARY 01, 2024
S.Sharma/nk
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