Insolvency Not a Shield Against Maintenance: Bombay HC Rejects Plea to Avoid Arrears

The Bombay High Court has rejected an insolvency petition filed under the Presidency Towns Insolvency Act, 1909, holding that the legislative framework governing insolvency cannot be used as a mechanism to dilute, frustrate, or stall a maintenance order passed by a Family Court.

Justice Jitendra Jain held that a person against whom a subsisting order of maintenance exists cannot seek to be adjudicated an insolvent merely because he asserts inability to pay the arrears determined under such an order, especially when the order is separately under challenge before the competent forum.

The petition was filed by an individual who had been directed by the Family Court to pay monthly maintenance to his wife from June 2015 onwards pursuant to proceedings under Section 125 of the Code of Criminal Procedure.

He asserted that he earned between Rs. 12,000 and Rs. 15,000 per month and was unable to pay accumulated arrears which he computed at more than Rs. 22 lakh. On that basis, he sought a declaration of insolvency and a consequential stay of execution of the maintenance order.

His argument rested primarily on Sections 9(1)(f), 10 and 14(1)(a) of the Presidency-Towns Insolvency Act, contending that once the statutory threshold of debt exceeding Rs. 500 was met, the Court was bound to declare him an insolvent.

The Court noted that his submissions proceeded on a foundational misconception of the Insolvency Act. Section 14(1)(a), it observed, merely sets the minimum debt requirement for presenting an insolvency petition and does not compel the Court to automatically adjudicate the petitioner as an insolvent upon presentation of a petition. Similarly, the deeming provision in the Explanation to Section 10 does not render adjudication mandatory. The statute consciously uses the word “may” when conferring power on the Court, signifying discretion.

If the Legislature had intended automatic adjudication, it would have expressly used mandatory language, it was added.

The Court then turned to the jurisdictional limitation contained in Section 11, which states that the Court cannot pass an order of adjudication unless the debtor is, at the time of presenting the petition, imprisoned in execution of a money decree. In the present case, the petitioner was not imprisoned at the time of filing the petition.

Therefore, even before considering merits, the Court lacked jurisdiction to adjudicate him insolvent.

Further, the petitioner’s reliance on Section 9(1)(f) was found misplaced. The Court emphasised that Section 9(2) is the specific provision dealing with insolvency arising from non-compliance with a decree or order for payment of money.

A creditor must issue an insolvency notice in the prescribed manner and within the statutory framework. No such notice had been issued in this case. Therefore, the petitioner could not invoke the general provision in Section 9(1)(f) to bypass the specific statutory mechanism under Section 9(2).

As a principle of statutory construction, special provisions override general ones.

Crucially, the Court held that a maintenance obligation is not a “debt” within the meaning of the Insolvency Act. Relying on the Mysore High Court’s decision in Hemavathiamma v. Kumaravela Mudalia, the Court reiterated that maintenance arises from a personal and moral obligation rooted in the marital relationship, rather than any contractual or commercial liability.

A maintenance order does not transform such obligation into a debt capable of being discharged in insolvency. The purpose of insolvency law is not to relieve a husband of his responsibility to support his wife. Thus, the very foundation of the petition under Section 14(1)(a) failed.

The Court also observed that the petitioner had already challenged the Family Court order by filing a criminal revision petition. Initiating insolvency proceedings for the same liability amounted to indirectly stalling the enforcement of the Family Court’s order, which is impermissible. Courts cannot permit litigants to achieve indirectly what they cannot achieve directly;

The Insolvency Act cannot become a parallel route to disrupt or dilute the effect of a judicial order granting maintenance.

The Court noted contradictions in the petitioner’s stand. The petitioner claimed inability to pay maintenance but simultaneously stated that certain creditors had not sought payment of loans allegedly taken in earlier years.

The Court found it difficult to believe that individuals who had advanced loans would indefinitely refrain from seeking repayment. If the petitioner’s income was truly inadequate since 2019, he offered no explanation why he had not sought insolvency protection earlier.

Ultimately, the Court held that allowing the petition would not only undermine the Family Court’s order but also incentivise a debtor to avoid statutory obligations through insolvency proceedings. Insolvency cannot be used as a shield against the enforcement of maintenance. The petition was dismissed in its entirety.

The judgment concluded with an observation that prolonged matrimonial litigation only deepens emotional and financial strain and urged the parties to consider amicable resolution.

Case Title: Mehul Jagdish Trivedi v. Manisha Mehul Trivedi

Bench: Justice Jitendra Jain

Date of judgment: 20.11.2025