The Delhi High Court held that a judgment debtor who has already served a three-month civil imprisonment cannot be again sent to civil prison in execution of the same decree for a second time.

The Court allowed the Appeal of a husband against the order directing his civil imprisonment for failing to pay maintenance arrears.

The Court noted that completion of a three-month civil imprisonment term under Section 58(2) of the Civil Procedure Code, 1908 (CPC) does not absolve the judgment debtor of their debt, as alternative means of recovery outlined in the section remain available.

The Bench comprising Justice Suresh Kumar Kait and Justice Neena Bansal Krishna observed, “a person who has already having been sent to civil imprisonment for a period of three months, cannot be sent to civil 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”.

Advocate Parnjay Chopra appeared for the Appellant and Advocate Y. K. Singh appeared for the Respondent.

The appeal filed under Section 19 of the Family Courts Act, 1984 (Act) challenged an order directing the appellant-husband's civil imprisonment for failing to pay maintenance arrears mandated by Section 24 of the Hindu Marriage Act, 1955 (HMA). The couple married in 1999, but disputes led to the wife filing for divorce in 2014, citing cruelty. Despite an interim maintenance order in favour of the wife and children, the husband defaulted on payments. He was previously imprisoned for three months due to non-payment. The divorce was granted ex-parte as the husband didn't participate.

The Court framed the following issues: “I. Whether maintenance Decree to be executed in accordance with the provisions of Code of Civil Procedure

II. Procedure under CPC for Civil Imprisonment in default of payment in execution of a Money Decree

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”

The Court referred to the case of Rajnesh v Neha [(2021) 2 SCC 324] and reiterated that “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”.

The Court emphasized that orders of maintenance can be enforced as money decrees of civil courts under the CPC, specifically through Sections 51, 55, 58, 60, and Order 21. “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”, the Bench noted.

The Court noted that the provisions of Section 51 of the CPC outline four main modes of execution, including delivery of property, attachment and sale of property, detention in prison for money decrees, and appointment of a receiver. The proviso to Section 51 sets out two conditions that must be met before ordering civil imprisonment: the judgment debtor must be allowed to show cause, and the court must be satisfied, recorded in writing, that the debtor has the means but refuses to pay.

The Bench observed that Rule 37 of Order XXI elaborates on the procedure for arrest, requiring a decree-holder to file an application for arrest and issuing a notice to the judgment debtor. Warrants of arrest may be issued if there's a likelihood of the debtor absconding. Rule 40 outlines the procedure for the mandatory inquiry before remanding a person to prison, including the taking of evidence and giving the debtor a chance to furnish security.

The Bench noted that the impugned order lacks a show-cause notice to the appellant-husband and fails to record in writing the satisfaction regarding his ability to pay but refused to do so. The Family Court didn't follow the prescribed procedures under Section 51 and Rules 37 and 40 of the CPC before directing the husband's civil imprisonment. The Court emphasized 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”.

The Court noted the Appellant's contention that in the execution of the same civil decree, a person cannot be re-arrested and sent to jail for a period exceeding three months. The Court was asked to consider whether, in the execution of a maintenance decree, repeated imprisonment beyond the three-month maximum is permissible.

The Bench noted that Section 58(1) of the CPC states that civil imprisonment for a money decree cannot exceed three months for amounts exceeding Rs. 5,000. Furthermore, Section 58(2) bars re-arrest under the same decree once released from civil imprisonment.

The Court emphasized that “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”.

In this case, the Bench noted that since the Appellant has already served three-month civil imprisonment in a previous execution petition, he cannot be subjected to further imprisonment under the same decree for subsequent arrears of maintenance.

Accordingly, the Court allowed the Appeal and set aside the impugned order.

Cause Title: Mohiet Anand v Parul Anand (2024:DHC:779-DB)

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Delhi High CourtJustice Suresh Kumar KaitJustice Neena Bansal Krishna

Jayanti Pahwa