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The Delhi High Court this week held that pending maintenance amount under Section 125 Criminal Procedure Code (CrPC) can be recovered via a suit for recovery by filing a civil suit. According to the Court, award of maintenance arises from a marriage and not as a contractual debt but it does acquire a character of ‘debt’ upon the obligated party not fulfilling its obligation to pay maintenance.

Maintenance can be recovered via suit for recovery - DHC

Delhi High Court. (File Photo: IANS)

A division bench of the Delhi High Court consisting of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna was hearing an appeal challenging the dismissal of suit of recovery of maintenance when a question regarding a spouse/family member’s right to recover maintenance which is due and payable even after the expiry of the period provided under Section 125(3) of CrPC arose.

The division bench while analysing the provision of the CrPC and Apex Court’s previous decisions concluded that once a maintenance amount becomes due and payable then the same can be recovered as a debt via a recovery suit.

The High Court while analysing Section 125 CrPC observed that under the provision there is no express or implied bar on the jurisdiction of a civil court to entertain such suits. Moreover, since the object of Section 125 Cr.P.C 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. Hence when 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 High Court also relied on the Hon’ble Supreme Court’s decision in Poongodi & Anr. v. 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.

On the basis of above findings the High Court allowed the appeal.

Vasu Bajaj v. Rakesh Bajaj, MAT.APP.(F.C) 226/2019 decided on 23.08.2023       



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