Husband cannot use insolvency proceedings to evade paying maintenance: HC

A single-judge bench of justice Jitendra Jain held that maintenance payments arise from a moral and personal duty, and are not a debt that can be dissolved by bankruptcy law.

Mumbai: The Bombay High Court on Thursday ruled that a husband cannot seek the shield of insolvency proceedings to escape his legally mandated obligation to pay maintenance to his wife.

Mumbai, India - Aug. 28, 2015 : Bombay High Court : ( Photo by Bhushan Koyande )

A single-judge bench of justice Jitendra Jain held that maintenance payments arise from a moral and personal duty, and are not a debt that can be dissolved by bankruptcy law.

The court dismissed an insolvency petition filed by a Mumbai-based man, Mehul Jagdish Trivedi, who sought to be declared insolvent after failing to pay a monthly maintenance of ₹25,000 to his wife, as directed by a family court in May 2021. The arrears, according to the petitioner, had reached ₹22.3 lakh, which he claimed he was unable to pay due to his modest monthly income of ₹15,000 as a dance teacher.

The court rejected this argument outright, stressing that maintenance does not amount to a debt under the Presidency-Towns Insolvency Act, 1909, and therefore cannot be the basis for declaring a person insolvent. Referring to a Mysore High Court judgment, the court reiterated that a husband’s obligation to maintain his wife flows from the marital relationship and the policy of the law, and not from a commercial or contractual liability.

The court further held that allowing insolvency proceedings to stay or diluting a maintenance order would “undermine the very purpose” of the law and deprive the wife of her rightful support. Justice Jain noted that the petitioner’s attempt to declare himself insolvent was essentially an indirect effort to stall the family court’s maintenance order, which he had already challenged separately through a criminal revision petition.

The judge highlighted the contradictions in the husband’s case: if maintenance liability survives even after an insolvency declaration, there was no reason to file an insolvency petition solely on the basis of inability to pay maintenance. Moreover, the wife had not issued an insolvency notice under Section 9(2) of the Insolvency Act, making the petition procedurally untenable.

Calling the petition a misuse of insolvency law, the court observed that such proceedings cannot be used to obtain relief that is unavailable in maintenance proceedings, stating: “The court cannot be used as a tool to do indirectly what is not permissible directly.”

Dismissing the petition in its entirety, the high court held that maintenance liability stands on a different footing from ordinary repayment obligations and cannot be avoided through insolvency.