The Delhi High Court in the case Vasu Bajaj v. Rakesh Bajaj observed and has ruled that the 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 the civil suit.
The Division bench comprising of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna in the case observed and has held that the civil suit for recovery of maintenance amount, which acquires the character of a debt is maintainable, once the final order is made under section 125 of the Code of Criminal Procedure.
The court stated that once the definite amount becomes due and payable, it becomes the legal debt and the recovery of which can be seek by way of the civil suit.
The court stated that no such express or implied bar on the jurisdiction of the Civil Court can be inferred from Section 125 of the Code of Criminal Procedure as the scope and the purpose of this section is not to recover maintenance or dues, but prevent vagrancy. Therefore, the object of section 125 of the Code of Criminal Procedure embodies only the social obligation of a husband towards his wife, parents, and children, it becomes a debt only when the said amount is payable to the dependant or wife is crystallized by way of a judgment or a decree.
In the present case, an appeal was moved by the minor son challenging an order passed by the family, wherein the court dismissed by the suit filed by his mother for recovery of maintenance amount Rs.2,78,800 from the father.
The court in the case observed while relying on the relevant judgements that 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 being determined and concretized by any Order or a Decree, thus, it becomes definite amount payable to the wife, children, and parents, therefore, acquires the character of a debt, which can be recovered by way of a civil suit. The main issue raised before the court was with regards 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 Cod of Criminal Procedure, as the only remedy which is available was to seek execution of such an order.
The bench in the case observed that the fiancé’s sustenance becomes a big concern for women and children who are completely being dependent on the husband.
The court in the case stated that 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 for an amount of Rs.85,000/- which has already been adjusted.
Accordingly, the court set aside the impugned order and decreed the suit for an amount of Rs. 2,05,000, along with pendent lite and the future interest @ 5% per annum till the date of realization.
