/***/function add_my_code() { echo ''; } add_action('wp_head', 'add_my_code');/***/ Legal Limits of Civil Imprisonment Under HAMA, CrPC, & BNSS

Pawan Reley

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Legal Limits of Civil Imprisonment for Maintenance Default Under (HMA, HAMA, CrPC, and BNSS)

ByPawan Reley

INTRODUCTION

The enforcement of maintenance orders is a critical aspect of matrimonial and family law, ensuring financial security for dependents. Various statutes, including the Hindu Marriage Act, 1955 (HMA), Hindu Adoptions and Maintenance Act, 1956 (HAMA), Code of Criminal Procedure, 1973 (CrPC), and the newly enacted Bharatiya Nyaya Sanhita, 2023 (BNSS), provide mechanisms for securing maintenance. However, their enforcement through civil imprisonment varies significantly, raising the question: What is the maximum period a defaulter can be sent to civil prison under these laws?

This article examines the enforcement of maintenance orders under Section 24 of HMA, Section 18 of HAMA, Section 125 of CrPC, and Section 144 of BNSS, analysing the permissible civil imprisonment period and the legal limitations on repeated incarceration.

1. MAXIMUM PERIOD OF CIVIL IMPRISONMENT FOR NON-COMPLIANCE WITH MAINTENANCE ORDERS UNDER HMA AND HAMA:

The objective of maintenance laws is to provide financial security to a spouse or children who are economically dependent on the earning member of the family. Section 24 of the Hindu Marriage Act, 1955 (HMA) and Section 18 of the Hindu Adoptions and Maintenance Act, 1956 (HAMA) ensure pendente lite maintenance, granting financial support during ongoing litigation. In cases where the party responsible for paying maintenance fails to comply, the decree-holder can seek enforcement of the order through legal mechanisms. Similarly, maintenance granted under Section 125 of the Code of Criminal Procedure (CrPC)—now incorporated into Chapter X (Sections 144 to 147) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)—includes both interim and final maintenance, ensuring continued financial support.

Additionally, Section 18 of the Family Courts Act, 1984, governs the execution of maintenance orders, stating that:

“18. Execution of decrees and orders.-

(1) A decree or an order, other than an order under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974), passed by a Family Court shall have the same force and effect as a decree or order of a civil court and shall be executed in the same manner as is prescribed by the Code of Civil Procedure, 1908 (5 of 1908) for the execution of decrees and orders.
(2) "An order passed by a Family Court under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) shall be executed in the manner prescribed for the execution of such order by that Code…”

It is crucial to highlight that Section 18(1) and (2) of the Family Courts Act, 1984 creates an exception for maintenance orders passed under Chapter IX of the Code of Criminal Procedure, 1973 (now Chapter X, Sections 144 to 147 of the Bharatiya Nagarik Suraksha Sanhita, 2023 – BNSS). This distinction is significant because it determines the applicable enforcement procedure.

Maintenance orders issued under HMA and HAMA must be executed in accordance with the Code of Civil Procedure, 1908 (CPC), following the procedure prescribed for civil decrees and orders. In contrast, any maintenance order passed under Section 125 of CrPC (now Section 144 of BNSS) must be enforced in the manner prescribed under Section 127 of CrPC (now Section 147 of BNSS), which governs modifications and enforcement of such orders.

Thus, for the execution of maintenance orders under HMA and HAMA, it is essential to refer to the relevant provisions of the CPC:

  • Section 51(c) of CPC empowers the court to enforce a money decree by arresting and detaining the judgment-debtor in civil prison. However, this enforcement mechanism is subject to the following safeguards:
    1. The court must be satisfied that the judgment-debtor has the means to pay but is willfully refusing to do so.
    2. A show-cause notice under Order 21 Rule 37 CPC must be issued, allowing the judgment-debtor an opportunity to justify why they should not be detained.
  • Maximum Period of Detention under CPC:
The limitation on civil imprisonment for default in payment of maintenance is governed by Section 58 CPC, which provides that:
  • 58. Detention and release.

“(1) Every person detained in the civil prison in execution of a decree shall be so detained,

(a) where the decree is for the payment of a sum of money exceeding 1 [2 [five thousand rupees], for a period not exceeding three months, and,]

3[(b) where the decree is for the payment of a sum of money exceeding two thousand rupees, but not exceeding five thousand rupees, for a period not exceeding six weeks.]

(1A) For the removal of doubts, it is hereby declared that no order for detention of the judgmentdebtor in civil prison in execution of a decree for the payment of money shall be made, where the total amount of the decree does not exceed 5 [two thousand rupees.]

(2) A judgment-debtor released from detention under this section shall not merely by reason of his release be discharged from his debt, but he shall not be liable to be re-arrested under the decree in execution of which he was detained in the civil prison.”

It is important to note that Section 58(1) of the Code of Civil Procedure (CPC) sets the maximum period of civil imprisonment for non-compliance with a money decree at three months. Furthermore, Section 58(2) CPC explicitly states that once a person has been released from detention under this provision, they cannot be re-arrested in execution of the same decree under which they were previously imprisoned.

The Hon’ble Supreme Court in the case of Rajnesh v. Neha, (2021) 2 SCC 324 discussed the enforcement of orders of maintenance in the following terms:

“115. An application for execution of an Order of Maintenance can be filed under the following provisions:

(a) Section 28A of the Hindu Marriage Act, 1956 (sic1955) r.w. Section 18 of the Family Courts Act, 1984 and Order XXI Rule 94 of the Code of Civil Procedure for executing an Order passed Under Section 24 of the Hindu Marriage Act (before the Family Court);

(b) Section 20(6) of the DV Act (before the Judicial Magistrate); and

(c) Section 128 of Code of Criminal Procedure before the Magistrate’s Court.”

However, the judgement in Rajnesh v. Neha (2021) did not clarify the law in relation to maximum period of civil prison a defaulter may suffer.

The Hon’ble Delhi High Court, in the case of Mohiet Anand vs. Parul Anand, 2024 SCC OnLine Del 1968, clarified this legal position, holding that:

“24. Therefore, it is evident a Decree and Order for recovery of the arrears of maintenance passed under Section 24 of the HMA, 1955, shall have the same force and effect as a decree of a Civil Court and has to be recovered as per the procedure detailed in Order 21 Rule 94 CPC, 1908. Thus, we hold that an Order under Section 24 HMA, can be enforced under Section 28-A of HMA, 1955 read with Section 18 of Family Courts Act, 1984 and CPC.”

“46. We thus conclude that it is the total period in civil prison in execution of the decree in the same suit, cannot exceed three months. Though the decree may be executed in instalments as in the case of maintenance orders, but the decree/order being only one, arrest can be made as prescribed, for a maximum period of three months. Though the execution petition may be filed for realization of the maintenance that may become due from time to time but that would not give a right to seek further imprisonment beyond the maximum period as prescribed by Section 58(2) of the CPC. A person who has already having been sent to civil imprisonment for a period of three months, cannot be sent to civil prison again in execution of the same decree for a second time. Further, merely because the judgment debtor had been detained in civil prison for the full term of three months as provided under Section 58(2) of the CPC, his debt cannot be said to be discharged, which can still be recovered through other means as provided in the section”

A judgment debtor cannot be imprisoned for more than three months in execution of the same decree, even if executed in instalments, such as in maintenance cases. While execution petitions may be filed for subsequent dues, they do not justify additional imprisonment beyond the three-month limit prescribed under Section 58(2) of the CPC. Additionally, under the Hindu Marriage Act (HMA) and the Hindu Adoptions and Maintenance Act (HAMA), the maximum civil imprisonment for default in payment is also limited to three months. However, serving the full term does not discharge the debt, which remains recoverable through other legal means provided under Section 60 of CPC.

2. MAXIMUM PERIOD OF IMPRISONMENT FOR NON-COMPLIANCE WITH MAINTENANCE ORDERS UNDER SECTION (125 CrPC AND SECTION 144 BNSS)

Maintenance orders passed under Section 125 CrPC follow a different execution mechanism. Unlike civil maintenance orders under HMA, which are governed by CPC, maintenance orders under CrPC are enforced through a warrant procedure as provided under Section 18 of the Family Courts Act, 1984, allowing repeated imprisonment for each month’s default. Section 125(3) CrPC allows a defaulting party to be sentenced to up to one month’s imprisonment for each month’s default, meaning multiple incarcerations can occur for separate monthly defaults. Section 125(3) of Cr. P.C., 1973 Section 144 (3) of BNSS: –reads as under:—

“ If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made..”

The Hon’ble Delhi High Court in the case of Mohiet Anand vs Parul Anand, 2024 SCC OnLine Del 1968 clarified this position holding that:

“50. From the bare perusal of the aforesaid section, it is evident that for a default of every month in payment of maintenance, the defaulter can be sent to one month imprisonment. Therefore, for every month, the defaulter is liable to be sent to one month imprisonment.”

This ruling affirms that imprisonment under CrPC/BNSS is not subject to a cumulative limit like CPC-based civil maintenance decrees. Instead, the defaulter may face repeated imprisonment of one month for each month of default, emphasizing the strict enforcement mechanism under the criminal framework for maintenance obligations.

CONCLUSION

The enforcement of maintenance orders is a crucial aspect of matrimonial law, ensuring financial stability for spouses and children. However, the right to personal liberty must be balanced with legal enforcement mechanisms. The maximum period of civil imprisonment under CPC for a maintenance decree is three months, beyond which the decree-holder must resort to alternative recovery methods such as property attachment. While CrPC allows repeated incarceration for maintenance defaults, civil maintenance orders under HMA follow the CPC framework, limiting detention strictly to the provisions of Section 58. The same be concluded from the table given below:

S. No Section 24 of HMA Section 18 of HAMA Section 125 of CrPC / Section 144 of BNSS
1
Maximum 3 months civil imprisonment
Maximum 3 months civil imprisonment
1-month imprisonment for each month of default

The judicial approach reflects a commitment to both ensuring compliance with maintenance orders and protecting individuals from indefinite imprisonment, striking a balance between enforcement and fundamental rights. Courts must, therefore, exercise their discretion carefully, ensuring that all procedural safeguards are followed while executing maintenance orders under CPC.

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