Maintenance under Section 125 CrPC can be recovered via civil suit when it becomes 'debt': Delhi High Court

The Delhi High Court Wednesday ruled that a civil suit for the recovery of maintenance is maintainable when it acquires the character of a ‘debt’ after the passing of a final order under Section 125 of the Code of Criminal Procedure (CrPC). [Vasu Bajaj v. Rakesh Bajaj].The division bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna added that under Section 125 CrPC, there is no express or implied bar on the jurisdiction of a civil court to entertain such suits. “Since the object of Section 125 CrPC 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. Once a definite amount becomes due and payable, it becomes a “legal debt”, therefore, the recovery of which can be sought by way of a Civil Suit,” the Court said..The Court was dealing with a question of whether an individual’s right to recover arrears in maintenance remains even after the expiry of the period stipulated in Section 125 (3) CrPC. The question arose in an appeal challenging the dismissal of a suit for the recovery of arrears of maintenance. In January 2010, a metropolitan magistrate in Delhi had granted maintenance of ₹5,000 per month for a minor on his mother’s petition under Section 12 of the Domestic Violence Act (DV Act). The amount was to be paid by the minor’s father. Since the monthly maintenance was not paid, the minor filed an execution petition through his mother for the recovery of arrears. In July 2012, the minor’s father paid an amount of ₹60,000 and the execution plea was disposed of as satisfied..An application was later filed for the restoration of the execution petition to recover the balance amount. However, this plea was dismissed with the observation that an execution should be filed within one year of passing of the order or accrual of arrears of maintenance. The appeal against the order was withdrawn with liberty to seek remedy before the appropriate forum. The minor then filed a civil suit for recovery of ₹ 2,78,8000. It was however dismissed as non-maintainable by a civil court, leading to the present appeal before the High Court..The High Court explained why a provision for maintenance, which is essentially a civil right, should find place in the CrPC. The rationale is that criminal law seeks to address crime to maintain law and order in the society, the Court said.“Financial 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 CrPC was to prevent penury and vagrancy, which many a times, become a reason of commission of offence,” it added..The High Court also relied on the the Supreme Court’s decision in Poongodi & Anr. vs. Thangavel to reiterate that if a remedy under Section 125 of CrPC is not available, the ordinary remedy to recover maintenance by way of a civil action shall be available. A similar view was taken by the Kerala High Court in Praveen v. Sabitha and anr, the bench noted. .It further said that the payment of maintenance to a wife and dependent children is in discharge of the social obligation of the husband. This obligation gets crystallized into a defined amount when the order granting maintenance is made, the Court added..The Court proceeded to opine that one is bound to be reluctant before implying that the non-payment of maintenance or alimony is a breach of a contract amounting to "debt.".All the same, the bench took note of the observation made by the apex court in Hemavathiammal vs. Kumaravelu Mudaliar wherein it was held that the award of alimony or maintenance arises from a relationship of marriage, not as a debt payment but in performance of a husband's general duty to support his wife. The Court added that while maintenance per se does not have its roots in contractual obligations (and is therefore not a ‘civil debt'), it does acquire the character of a ‘debt’ which can be recovered by way of a civil suit.“This conclusion can be buttressed by the observations of the Supreme Court in the case of Poongodi & Anr. vs. Thangavel (supra), wherein it was held that when the maintenance may not be recoverable under Section 125 (3) CrPC, the ordinary remedy to recover the amount of maintenance by a Civil action, shall be applicable,” the Court held..Therefore, it allowed the appeal and held that the minor child was entitled to ₹ 2,05,000 as arrears of maintenance..Advocates Ankur Mahindra, Ankush Satija and Aditya Kapur represented the child and his mother.Advocates Kamal Kumar, Rakesh Bajaj and Savyasachi Rawat represented the father..[Read Judgment]