Case Note & Summary
The petitioner husband, Dhanaji Keshav Kamble, filed a Criminal Writ Petition in the Bombay High Court (Aurangabad Bench) challenging an order passed by the Family Court in ER 137 of 2017 on his application (Exh.12). The Family Court had directed him to deposit arrears of maintenance awarded against him in favour of his wife (respondent no.1) and minor daughter (respondent no.2) in Criminal Misc. Application No.24 of 2013 by the Judicial Magistrate First Class, Latur under Section 125 of the Code of Criminal Procedure, 1973 (CrPC). The order required deposit within 15 days, failing which a warrant would be issued for sending him to jail. The husband argued that the maintenance order itself should be quashed because the couple had entered into a compromise on 05.12.2009, where the wife received Rs. 1 lakh in full and final settlement of her maintenance claim. Additionally, a customary divorce deed was executed on 22.02.2017 in the presence of a Corporator, under which the wife accepted Rs. 3 lakhs in lieu of her right to maintenance. A Hindu Marriage Petition No.F37 of 2017 under Section 13B of the Hindu Marriage Act, 1955 for divorce by mutual consent was also filed, supported by the wife's affidavit. However, the wife later backtracked and proceeded with execution of the maintenance order. The husband contended that the Family Court ignored these facts. The wife's counsel argued that the maintenance order had attained finality and the husband had not sought its recall under Section 125(5) or variation under Section 127 CrPC. The High Court observed that the maintenance order under Section 125 CrPC was final and had not been varied or cancelled by any competent court. The alleged compromise and customary divorce, even if true, could not be a ground to resist execution of arrears. The Family Court's order was upheld, and the writ petition was dismissed. The court noted that the husband could seek appropriate remedies before the Magistrate under Section 125(5) or Section 127 CrPC if he wished to challenge the maintenance order itself.
Headnote
A) Family Law - Maintenance - Execution of Arrears - Section 125, Code of Criminal Procedure, 1973 - The petitioner husband challenged the Family Court order directing him to deposit arrears of maintenance within 15 days failing which warrant to be issued for sending him to jail - The husband contended that the wife had received Rs. 1 lakh in full settlement on 05.12.2009 and later Rs. 3 lakhs under a customary divorce deed dated 22.02.2017, and that a divorce petition under Section 13B Hindu Marriage Act was filed - The Court held that the maintenance order under Section 125 CrPC had attained finality and had not been varied or cancelled under Section 125(5) or Section 127 CrPC - The alleged compromise and customary divorce cannot be a ground to resist execution of arrears - The Family Court's order was upheld (Paras 2-6).
Issue of Consideration
Whether a husband can resist execution of arrears of maintenance under Section 125 CrPC on the ground that the wife had entered into a compromise and customary divorce, thereby waiving her right to maintenance.
Final Decision
The High Court dismissed the Criminal Writ Petition, upholding the Family Court's order directing the petitioner to deposit arrears of maintenance within 15 days, failing which warrant to be issued for sending him to jail. The court held that the maintenance order under Section 125 CrPC had attained finality and had not been varied or cancelled; the alleged compromise and customary divorce could not be a ground to resist execution.
Law Points
- Maintenance order under Section 125 CrPC remains enforceable until varied or cancelled by competent court
- private settlement or customary divorce does not automatically extinguish liability for arrears
- Family Court can enforce arrears by warrant and imprisonment under Section 125(3) CrPC
