delhi high court

Delhi High Court: An appeal was filed under Section 19 of the Family Courts Act, 1984 challenging the judgment dated 17-05-2019 dismissing the suit filed by the guardian on behalf of the minor, for recovery of Rs.2,78,800 on account of the maintenance granted by Family Court. A division bench of Suresh Kumar Kait and Neena Bansal Krishna, JJ., sets aside the impugned order and entitled the appellant to maintenance @Rs. 2,05,000/- (Rupees Two Lakh Five Thousand only) along with pendent lite and future interest @ 5% per annum till the date of realization.

The mother of the appellant got married to the respondent according to Hindu Marriage Rites and Ceremonies and the appellant was born out of the wedlock. Disputes arose between the parties and allegations of being harassed and beaten mercilessly were leveled against the respondent-husband. An application was filed on 25-02-2008 under Section 12 of the Protection of Women from Domestic Violence Act, 2005 and maintenance was granted @ Rs.5,000/- per month for the appellant child. An appeal was filed which was thereby dismissed and on the failure of the respondent to pay the monthly maintenance, the appellant filed an Execution petition under Section 125(3) CrPC for recovery of arrears in maintenance and the respondent tendered a sum of Rs. 60,000 to the decree-holder and, the execution was disposed of as satisfied.

An application for the restoration of the Execution Petition for the balance amount was filed, however, it was dismissed noting that the execution can be filed within one year of the passing of the Order/Accrual of arrears of maintenance. Thus, the appellant herein was entitled to maintenance but since the Execution Petition was neither accompanied by an application for condonation of delay, nor any objection was taken by the Decree Holder, there could be no revival of the Execution Petition. Assailing this, an appeal was filed before Additional Sessions Judge who granted liberty to the appellant herein to seek its remedy before the appropriate forum in accordance with law. Thus, the appellant filed a Civil Suit for recovery of Rs.2,78,800/- before the Family Court claiming the said amount to be a “debt” on account of arrears of maintenance. The Court held that the appellant was trying to seek a remedy under the Code of Civil Procedure, 1908 (“CPC”) which was not otherwise available to him under Section 125 CrPC.

On the aspect of why a provision for maintenance, which is essentially a civil right, finds a place in Criminal Procedure Code, the Court noted that the rationale is that criminal law seeks to address the crimes committed in a society to maintain law and order. Financial sustenance becomes a big concern for women and children who are completely dependent on their husbands. Fighting court battles for maintenance in an already destitute state can turn out to be arduous for the victims, rendering the fight to be a futile exercise. Thus, the objective of introducing Section 125 CrPC was to prevent penury and vagrancy, which many times, become a reason for the commission of offence.

The Court remarked that “Once the maintenance is determined under Section 125(1) CrPC, the question that follows is regarding the process of implementing the said Order to recover any arrears of maintenance. One of the modes for recovery is provided under the proviso to Section 125(3) CrPC which states 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. The most obvious query at this stage is whether the maintenance that may have become due prior to one year from the date of application as specified in the provision is also recoverable.”

In Poongodi v. Thangavel, (2013) 10 SCC 618, the Court held that “Section 125(3) CrPC does not create a legal embargo on the entitlement to claim arrears of maintenance. If the remedy under Section 125 CrPC was not available to the victim, the ordinary remedy to recover the amount of maintenance as a civil action shall be available”. On the aspect of whether the arrear in maintenance becomes a “debt” for the recovery of which a civil suit can be filed, 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 observed that the fundamental test for ascertaining the exact extent to which the jurisdiction of the Civil Court is excluded is by an implied bar by examination of the remedies and the scheme of the Act to find out the intendment becomes necessary, and the result of the inquiry may be decisive to sustain the jurisdiction of a civil court. When the legislature entrusts a Tribunal or body with the jurisdiction while there is no specific mechanism provided for certain rights, the jurisdiction of the Civil Court cannot be read to be ousted.

Thus, the Court held that a Civil Suit for recovery of maintenance which acquires the character of a “debt” once a final Order is made under Section 125 CrPC, is maintainable.

[Vasu Bajaj v Rakesh Bajaj, 2023 SCC OnLine Del 5124, decided on 23-08-2023]

Advocates who appeared in this case :

Mr. Ankur Mahindra, Mr. Ankush Satija and Mr. Aditya Kapur, Advocates for appellants

Mr. Kamal Kumar, Mr. Rakesh Bajaj and Mr. Savyasachi Rawat, Advocates for respondents

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