HC refuses to quash arrest warrant against man who failed to pay maintenance

The Bombay high court (HC) has refused to quash an arrest warrant issued by the family court against a man who failed to pay the maintenance to his estranged wife

The Bombay high court (HC) has refused to quash an arrest warrant issued by the family court against a man who failed to pay the maintenance to his estranged wife and their children for five months and refused to deposit the outstanding amount accrued in that period.

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During the hearing, the man argued that as he was paying the EMI for the house occupied by his wife and children, the EMI amount should be deducted from the maintenance. The HC, however, said that as per the decree for maintenance, the man was supposed to provide a house free of encumbrances, and hence he could not seek adjustment of the maintenance.

The bench of justice Natin Sambre, while hearing the petition of the man, was informed that on November 8, 2019 the family court issued an arrest warrant against him for non-payment of maintenance from January to June 2019 and school education fees from 2018. The man said the arrest warrant was issued without hearing his side, and urged the court that the warrant be quashed and set aside.

However, the wife’s counsel argued that in 2017, after the couple had consented to part ways, the family court had decreed that the man should pay a monthly maintenance of ₹7 lakh, of which half would be for the wife and the other half for the two children. As part of the order, the man had handed over a residential premise at Thane for the wife and children.

The wife’s advocate further submitted that while the man had initially paid the in maintenance amount, he stopped it from January 2019. The advocate further submitted that the residential premise occupied by the wife and children had been mortgaged and that the husband was to repay the loan amount so that the premise was free from encumbrances.

In view of the man’s failure to pay the maintenance, the wife had approached the family court seeking execution of the 2017 decree. After a distress warrant was issued, the family court had directed the man to deposit ₹40 lakh towards the arrears. Upon his refusal to comply with the order, the arrest warrant was issued against him.

The counsel for the husband, however, added that as the wife was using the premise, the amount towards repayment of the loan was to be adjusted from the maintenance.

After hearing both the sides, the bench observed that the consent decree of 2017 clearly stated that the maintenance amount was ₹7 lakh and there was no provision for adjusting the loan amount from the maintenance, and hence the family court order was a just one. The court further observed that as the husband was intentionally not paying the maintenance, he was liable to pay a fine of ₹25,000.

Citing that the man was set on not depositing the ₹40 lakh arrears, the court said it was not inclined to extend any protection to him against arrest.