Maintenance Liability Under Family Court Order Not A ‘Debt’ For The Purpose Of Insolvency Proceedings: Bombay High Court
The High Court held that maintenance directed to be paid by a husband under a Family Court order arises from a legal and moral duty, not from a contractual debt, and therefore cannot form the basis of an insolvency petition under Section 14(1)(a) of the Presidency Towns Insolvency Act.
The Bombay High Court has held that an amount payable by a husband towards maintenance under an order of the Family Court cannot be treated as a “debt” for the purposes of insolvency proceedings.
The Court was hearing an insolvency petition filed under Section 14(1)(a) of the Presidency Towns Insolvency Act, 1909, wherein the petitioner sought adjudication as an insolvent, along with a stay of execution of the maintenance order passed by the Family Court, Mumbai.
A Bench comprising Justice Jitendra Jain drew support from the Mysore High Court decision in Hemavathiamma v. Kumaravela Mudalia and held: “The issue whether the order/decree of a Civil Court passed against the husband for maintenance of his wife is a “debt” or not came up for consideration in the case of Hemavathiamma vs. Kumaravela Mudalia1, before the Mysore High Court. The said decision after analyzing the meaning of the word “debt” came to a conclusion that amount payable for the maintenance of wife cannot be termed as a debt but it is a moral duty and, therefore, an order of declaring the respondent therein as an insolvent cannot be passed under the Provincial Insolvency Act”.
The Bench, while clarifying that the provisions of the Presidency Towns Insolvency Act, 1909, are pari materia to the Provincial Insolvency Act, further observed that “since the amount payable under the order of the Family Court cannot be a ‘debt’, the present petition on the basis of Section 14(1)(a) cannot be said to be maintainable.”
Advocate Siddh Pamecha appeared for the petitioner. The Insolvency Registrar, Rekha Rane, was also present during the proceedings.
Background
The petitioner-husband was directed by the Family Court, Mumbai, on 17 May 2021 to pay monthly maintenance of ₹25,000 to the respondent-wife under Section 125 CrPC. He challenged this order in a separate Criminal Revision Petition before the High Court, which remains pending.
According to the petitioner, his income was only ₹12,000–15,000 per month, while arrears under the maintenance order amounted to over ₹22 lakh. On this basis, he sought a declaration of insolvency under Section 14(1)(a) of the Presidency Towns Insolvency Act, arguing that his “debts” exceeded the statutory threshold.
The petition was founded exclusively on Section 14(1)(a) read with Section 9(1)(f) and Section 10 of the Act, contending that the inability to pay the maintenance constituted a qualifying “debt” and therefore entitled him to adjudication as an insolvent.
Court’s Observation
The Bombay High Court, upon hearing the matter, examined the statutory definition of “debt” under Section 2(b) of the Presidency Towns Insolvency Act and the conditions under Sections 9, 10 and 14 governing acts of insolvency and the eligibility of a debtor to file an insolvency petition.
The Court observed that Section 14(1)(a) merely stipulates the minimum amount of debt required to present an insolvency petition, but does not mandate adjudication merely because a petition is filed. The use of the word “may” in Section 10 conferred discretion on the Court.
The Bench further held that insolvency provisions cannot be used to indirectly frustrate or stall the enforcement of a maintenance order passed by the Family Court, particularly when the same order is already under challenge in revision proceedings.
The Court further noted that Section 11(a) restricts the Court from adjudicating a debtor insolvent unless he is imprisoned in execution of a money decree at the time of presentation of the petition, a condition not met in the present case.
Turning to the core issue, the Court relied extensively on the Mysore High Court judgment in Hemavathiamma v. Kumaravela Mudalia, which analysed the meaning of the term “debt” in insolvency law. The Mysore High Court had held that maintenance obligations do not arise from contract and are not “debts” but duties imposed by law arising out of the marital relationship.
The Bench subsequently held that insolvency law is not intended to relieve a person from duties arising from family relationships, and cannot be used to avoid compliance with maintenance orders. The Court remarked that “the Insolvency Act cannot be abused to seek stay of the Family Court order granting maintenance when the petitioner himself has challenged that order in Criminal Revision Petition”.
Accordingly, it held that the petition under Section 14(1)(a) was not maintainable since the amount payable under the Family Court order does not meet the statutory meaning of “debt.”
Conclusion
The High Court dismissed the insolvency petition filed under Section 14(1)(a) of the Presidency Towns Insolvency Act, holding that insolvency proceedings cannot be used to undermine or delay compliance with maintenance orders.
The petition was dismissed with no order as to costs.
Cause Title: Mehul Jagdish Trivedi v. Manisha Mehul Trivedi (Neutral Citation: 2025:BHC-OS:21502)
Appearances
Petitioner: Advocate Siddh Pamecha