Can’t arrest man because wife says so: High Court

Justice M Venugopal while setting aside an order of the family court, which had directed the arrest of a person for not paying the maintenance due to his wife in time, said, “In the considered opinion of this court, the Second Additional Family Court Judge ordering the arrest of the husband, just because the wife insisted, is not correct in the eye of law.” He also held that “Ordinarily, a court of law before passing an order for arrest and detention of the person concerned must be satisfied that the person, despite having sufficient means is evading payment with a malafide intent.” 

The second additional family court while dealing with a divorce plea between a junior advocate and his wife, in an interim order directed the husband to pay Rs 22,500 for the wife and two children by the fifth of every month till the disposal of the petition.

But thereafter, the wife filed a petition stating that the husband had not paid the maintenance and hence has to be arrested. The husband on his part had submitted that he had sustained head injuries in an accident resulting in a slowdown of his activities as well as his earnings. 

Justice Venugopal while setting aside the arrest also held that “It is for the wife to prove the means and resources of the husband and the trial court after holding an enquiry in this regard has to record its finding. In the instant case, no such exercise was resorted to.”

The Judge on further noting that mere sentencing a person to imprisonment does not wipe out the arrears of the maintenance sum, directed the Second Additional Family Court to take up the case afresh and “pass a reasoned speaking order in a dispassionate manner that too with an open mind by adhering to the principles of natural justice.”