Interim maintenance under hma, execution limitation

A petition for execution of order for maintenance can be filed for one year, excluding the period consumed by court from the date of filing of application/ petition and its decision .

Issuance of warrant of arrest of the judgment debtor (JD) can be applied when JD is unable to pay part of outstanding amount of execution petition filed by decree holder (DH).

Thanks Vashista sir.

But is it not true that a warrant cannot be issued, if the Execution Petition is filed after the 1 year period the maintenance order is due ?  

Please kindly clarify.

Since you are in arrears and the due amount shall be recovered from you, if you filed to pay you can be imprisoned and the Maintenance is recurring and continuous there is no time bar as such ,, Just pay the due amount and or face the consequences. The Imprionsment can be from one month and not more than  three months for default for a single decree . 

Thanks Sir.

My only question is , whether the EP valuation is correct or not.

They filed EP for INR 27 Lakhs.

(Monthly Maintenance of 40,000 per month)

However per the Execution , they can recover only for last 1 year which is :

INR 4,80,000. (40,000 × 12 = 4,80,000)

Please advise.

I have made it clear that arrears of maintenance for the time taken by court can be recovered by filing execution petition 3 months after the date of decision.  Thereafter arrears for 12 months can be recovered by filing EP. 

Warrants of arrest shall not be issued by executing court till the JD is making "some" payment to satisfy EP.

It (valuation of EP) can be calculated and verified from the orders passed by the Court.

Thanks a lot for Clarification sir 🙏 

This helps a lot and precisely what I wanted to know.

There is a huge difference between 27L when counted from Jan 2020 when her maintenance order became due, 

Vs.

Only 4.8L when calculating last 12 months.

(She clearly slept over the order and not filed any EP till Jan 2024)

Well that is for execution court to settle, since the maintenance is always due from the date of order and if you failed to make payments and the other party did not filed EP within  a year are lapsed as per your version.

the exception as below defines the time limit when the amount is due and when the application to be made. 

“””””Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due””””””

It gives time limit of one year but it is prospective means the application for recovery should not be made prior to one year, though it is interpreted as the previous due amounts are lapsed if not claimed within one year. There are  catena of High court and Supreme Court Judgments   that will show that the maintenance was allowed to recover even after lapse of time, the circumstances under which the applicant was not able to file application is considered and this is a social issue where courts are much liberal in providing support to applicants.

You have filed to provide maintenance and you are in arears, court may consider that conduct too.

Now if you are not satisfied with the court order you have right to appeal but better to discuss with your lawyer properly.

You may file any application under section 47 CPC in the execution court for raising the issues and court shall decide while listening your version.

Even in many cases applicants file civil recovery suits for recovery of maintenance due with interest on the amount  along with damages, that is maintainable also , so better to settle amicably outside the court this issue

Dear Real Soul,

Please understand I am contesting against your view point.

But the mode of execution is what concerns me.

Time and again many courts including the Honble Supreme Court has stated that "Civil Arrest as a mode of Execution" should only by used as a last resort, after exercising all other options.

As per the Order 21, Rule 21, there are several modes of recovery of arrears such as Attachment of Property (I do have a property and mentioned it before trial court), Attachment of Salary, Attachment of other such movable and immovable properties.

When such other alternate relief is available at the disposal of the petitioner (JH) , there is no point in choosing Civil Arrest as the mode of Execution which is just a coercive means and not meet the end of the justice.

Furthermore to your earlier point of Civil Arrest or Detention, please NOTE that the JH has to pay for the subsistence allowance to the JD, during such time he is detained.

When they are asking for maintenance and at the sametime ready to pay for subsistence allowance to put me behind the bar, is nothing more than an act of vengeance as against an act to recover the arrear amount.

Finally this is not a 125CrPC or DV act under which maintenance was ordered. It was just in the family case of HMA act and that too it is an Interim Maintenance Pendente lite and not a Permanent Maintenance or Alimony (which will only be decided once her main petition is decided based on the merits).

Finally, provided if her main divorce petition gets dismissed by any chance, her entire IA becomes infructous and not maintainable.

A decision of the Family Court on the application under Section 24 of the Act involves adjudication and determination of the right of the parties conclusively. In other words denial of the pendente lite maintenance and expenses of proceedings would seriously prejudice the rights of the applicant, who has no independent income sufficient for his or her maintenance and to contest the proceedings. On the other hand inability to pay pendente lite maintenance and expenses of the proceedings by the spouse having no independent income, would cause serious prejudice and result in severe civil consequences.

The courts have recourse to methods apart from the Civil Procedure Code, 1908 for the enforcement of orders regarding interim maintenance and expenses of proceedings. In the case of Narinder Kaur v. Prilam Singh (1985), an employed husband who denied obeying the order to pay maintenance pendente lite was punished for contempt and given a sentence of four months.

Thanks Kalaiselvan Sir.

But I had proved to the family court, that she was owning a company & highly educated MBA graduate.

Also, I have proved to the court that she has willfully deserted me, by showing an earlier RCR order allowed in my favor. (This is a contempt of court on behalf of her)

There is a HC direction to dispose main case in 2022, that was not complied by the family court. 

Order 21, Rule 21 of CPC, also specifies  discretion of family court in deciding whether parallel execution against both person and property is maintainable.

Furthermore they are seeking arrest under Order 21, Rule 37, but that would require a show cause notice to be sent to provide a reason as to why I cannot pay.

For a warrant 2 conditions to be satisfied:

(1) Whether I willfully disobeyed the order ?

(2) Whether there is reason as to why I was not able to pay interim maintenance.

Only if both conditions satisfied (meaning I have the means to pay arrears and willfully denying it), and once subsistence allowance paid, then a bailable warrant can be issued, even then the court has to record clear reasons of doing so.

Since you have worked  to a great extent in this connection, you may proceed as per the decision you have taken 

Thanks everyone for all your expert advice.

I will try to fight it out in family court and if they allow EP , will seek a CRP before HC and Supreme Court, as I think my case has merits, and EP & maintenance been misused here 🙏 

you can proceed in the manner whichever you find it to be proper and suitable to the situation.