November 12, 2018
In this recent case, Rajesh v. Sunita & ors. the High Court of Punjab & Haryana has held that if the husband fails to pay maintenance then the defaulter i.e. the husband has to suffer imprisonment on each default to pay the maintenance
In the case, the Petitioner has challenged the order passed by the Family Court, whereby the Court had sentenced the Petitioner to undergo civil imprisonment for twelve months on account of non-payment of arrears of maintenance to his wife.
The High Court while dismissing the Petition, heavily relied on Supreme Court’s verdict in the case of Shantha v. B.G. Shivnanjappa, wherein the Apex Court had observed that the arrears of maintenance which is payable to the respondents is for about 45 months. Sentencing a person to jail is a ‘mode of enforcement’. It is not a ‘mode of satisfaction’ of the liability. The liability can be satisfied only by making actual payment of the arrears. The whole purpose of sending to jail is to oblige a person liable to pay the monthly allowance, who refuses to comply with the order without sufficient cause, to obey the order and to make the payment. The purpose of sending him to jail is not to wipe out the liability which he has refused to discharge. Monthly allowance is paid in order to enable the wife and child to live by providing with the essential economic necessities. Neither the neglected wife nor the neglected child can live without funds for purchasing food and the essential articles to enable them to survive. The first and foremost duty of the husband is to maintain the wife and the child. He may beg, borrow or steal.
It was thus concluded by the Court that the maintenance claim has to be construed continuing liability which becomes due at the end of every month. So, the defaulter has to suffer imprisonment on each default to pay the maintenance. On undergoing imprisonment in default of maintenance will not wipe out the liability which shall subsist till the payment is made.
In view of the aforesaid observation and precedent, the High Court upheld the Family Court’s order in the case.
 2005(2) RCR(Criminal) 796