Prayagraj: The Allahabad high court has held that committing a person to a civil prison for default in paying maintenance to his wife or children does not absolve him of his legal liability to pay further monthly maintenance arrears.In his Mar 24 order, Justice Praveen Kumar Giri clarified that the doctrine of double jeopardy under Section 300 CrPC is entirely inapplicable to the execution of maintenance orders under the Protection of Women from Domestic Violence Act, 2005. The court added that maintenance proceedings result in neither a conviction nor an acquittal and hence the court refusing to execute an award of maintenance amount by invoking a plea under Section 300 CrPC would be contrary to the law.The court passed this order while hearing a petition filed by Hasina Khatoon, who had challenged a Jan 2023 order passed by the Civil Judge (junior division)/Fast Track Court (Crime against women) in Moradabad.In July 2019, a magistrate directed the petitioner’s husband to pay an interim maintenance of Rs 4,000 to her and Rs 4,000 to the disabled son. However, her husband failed to pay Rs 2,64,000 arrears to Khatoon and hence an execution application was moved by the her. On her plea, a recovery warrant was issued and the husband was arrested on Oct 30, 2022. As he refused to deposit the maintenance amount awarded by the trial court, the judicial magistrate sent him to civil prison for a period of 30 days.Upon his release, he still failed to pay the maintenance amount to the applicant. Consequently, the applicant made a subsequent application seeking the issuance of a fresh recovery warrant. However, this time, her application for the recovery of Rs 2,64,000 was rejected on the grounds that her husband had already served a 30-day period of detention in respect of the arrears of maintenance of said amount. The civil judge (junior division)/Fast Track Court (Crime against women) relied upon Section 300 CrPC.The husband defended the order impugned by contending that since he had served out 30 days’ term of imprisonment as a penalty, now no arrears remained. Finally, the husband also challenged the maintainability of the instant application under Section 482 CrPC on the ground that the impugned order would be appealable under Section 29 of the domestic violence (DV) Act.In its 42-page order, the court added that merely committing a defaulter to civil prison does not absolve him of the liability to pay monthly maintenance to the aggrieved wife. Consequently, the HC set aside the impugned order and directed the concerned trial court to pass a fresh order for recovery of the amount of arrears, including simple bank interest at the rate of 6%, on the amount of arrears. The HC further provided that in case the amount is not deposited by the husband, as he has already served a term of civil detention for the non-payment of maintenance, the trial court of the judicial magistrate shall attach his property.
