J U D G M E N T

NEENA BANSAL KRISHNA, J.

1. The present Appeal under Section 19 of the Family Courts Act, 1984 has been filed on behalf of the appellant/husband against the Order dated 30.09.2022 vide which the appellant/husband has been directed to be taken into Custody for civil imprisonment on account of non-payment of arrears of maintenance awarded under Section 24 of the Hindu Marriage Act, 1955 (hereinafter referred to as “HMA, 1955”) in the Execution Petition No.

11/2020.

2. Briefly stated, the facts are that the parties got married on 14.04.1999 according to Hindu Rites and ceremonies. However, due to differences between them, the respondent/wife separated from the appellant/husband and filed a Divorce Petition bearing No. HMA 630 of 2014 (re-registered as HMA No. 48/2018) under Section 13(1)(ia) of the HMA, 1955. During the trial, an Order dated 28.09.2015 under Section 24 of HMA, 1955 was made against the appellant/husband vide which he was directed to pay Rs. 14,000/- per month to each of the two children and Rs. 16,000/- per month to the respondent/wife from the date of filing of the application. In addition to maintenance, Rs. 20,000/- as litigation expenses was given to the respondent/wife.

3. While the divorce proceedings were pending, the respondent/wife filed the Execution Petition No. 27/2018 seeking enforcement of the interim Order dated 28.09.2015 granting the interim maintenance to the wife and the children. In this Execution Petition, the appellant/husband was taken into custody and sent to civil imprisonment on 24.02.2021 for the maximum sentence period of three months, which was served by the appellant/husband.

4. The appellant/husband failed to appear in the Divorce Proceedings and he was proceeded ex parte and the divorce was granted vide Judgment dated 22.05.2020.

5. The respondent filed another Execution Petition bearing No. 11/2020 for the execution of the same Order dated 28.09.2015 of interim maintenance. Now again, the learned Family Judge vide Order dated 30.09.2022 directed that as the Judgment Debtor/appellant/husband was not willing to make the payment of arrears of maintenance amounting to Rs. 22,00,000/- till the date of Divorce decree, he be taken into custody and be sent to civil imprisonment till 26.10.2022. The respondent/wife was directed to deposit the subsistence allowance within three days, as per Rules.

6. The appellant/husband aggrieved by the impugned Order dated

30.09.2022, has preferred the present Appeal.

7. It is submitted on behalf of the Appellant that the impugned Order dated 30.09.2022 of remanding the appellant/husband to civil imprisonment is absolutely illegal and perverse in terms of Section 58 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC, 1908”). The appellant/husband has already served the maximum punishment of three months as stipulated in Section 58 of CPC, 1908 in regard to interim maintenance Order dated 28.09.2015 and he cannot be sent to jail again for the execution of the same Order.

8. It is further submitted that, while in a proceeding under Section 125 Code of Criminal Procedure, the learned Judge can sentence the appellant to imprisonment for each month's default, the same is not permissible in civil proceedings. Reliance has been placed on the case of Rajnesh v. Neha (2021) 2 SCC 324 wherein the Supreme Court categorically the order of maintenance may be enforced as a money decree of a civil court as per the provisions of the CPC, more particularly Sections 51, 55, 58, 60 read with Order 21.

9. It is alleged that the Order dated 30.09.2022 is in direct contravention of Order XXI Rule 11A of the CPC, since there was no Application seeking arrest of the appellant, made by the decree holder/respondent. Further, there was no Show Cause Notice issued to the appellant before the passing of the Order and thus, the same is liable to be set aside on this sole ground itself.

10. It is, therefore, submitted that the impugned Order dated 30.09.2022 of