Tamilinian, ur lawyer is dead wrong. Courts r very liberal in protecting a woman’s or a child’s right to maintenance arrears. The husband or ex-husband does not get a clean slate by going to jail.
“4. .. ... ... .... ....What the proviso contemplates is that the procedure for recovery of maintenance under Section 125(3) CrPC, namely, by construing the same to be a levy of a fine and the detention of the defaulter in custody would not be available to a claimant who had slept over his/her rights and has not approached the Court within a period of one year commencing from the date on which the entitlement to receive maintenance has accrued. However, in such a situation the ordinary remedy to recover the amount of maintenance, namely, a civil action would still be available.
5. The decision of this Court in Kuldip Kaur v. Surinder Singh and Anr.1 may be usefully recalled wherein this Court has held the provision of sentencing under Section 125 (3) to be a “mode of enforcement” as distinguished from the “mode of satisfaction” of the liability which can only be by means of actual payment... ... ..
6. In another decision of this Court in Shantha alias Ushadevi and Another v. B.G. Shivananjappa2 it has been held that the liability to pay maintenance under Section 125 CrPC is in the nature of a continuing liability.”
Reference: the Supreme Court of India on September 27, 2013:
https://judis.nic.in/supremecourt/imgs1.aspx?filename=40838
“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. Be it also realised that a person ordered to pay monthly allowance can be sent to jail only if he fails to pay monthly allowance “without sufficient cause” to comply with the order. It would indeed be strange to hold that a person who “without reasonable cause” refuses to comply with the order of the court to maintain his neglected wife or child would be absolved of his liability merely because he prefers to go to jail. A sentence of jail is no substitute for the recovery of the amount of monthly allowance which has fallen in arrears.”
Reference: the Supreme Court of India on November 3, 1988:
https://indiankanoon.org/doc/572744/
Sandeep, do not accumulate troubles by living in a fantasy world. A more effective method is to know ur enemy’s strength. The remedy in a maintenance case should have two parts. Part one is to fight any maintenance case to the tooth and nail so that the judge grants the wife a negligible amount of maintenance and/or alimony. Part two: an amount, more than the amount of money-owed, should be kept safe somewhere in case the wife starts pursuing the arrears of maintenance and/or alimony. Do not pay her until she fights for its recovery for years. Let her make the effort first and fiercely fight off her efforts. When u reach a point where it’s apparent that property attachment and/or jail is inevitable, only pay her then. Part two is very important when u know ur wife is in a hurry to remarry because the chances r that she will never peruse the arrears of maintenance and/or alimony. So never be in a hurry to pay her the judgment amount. She will use it to buy a nice wedding dress and to pay for a seven star hotel at her honeymoon.
I’m not in the favour of denying maintenance to a child or to a woman who is taking care of that child. Neither am I in the favour of denying maintenance to a very simple, oppressed, and a destitute woman. Pls use the above mentioned remedy only against greedy, lazy, healthy, educated, and childless women. Use it especially against those women who want to rob u in the name of permanent-alimony and then they want to remarry a few months later. Personally, if I had five ex-wives who were simple women and destitute, I would support each one as an act of charity without being forced by the laws. But the sad truth is that majority of these 498a filing women r no simple women.
