Safiya Malik

The High Court of Bombay Single Bench of Justice Jitendra Jain has dismissed a husband’s insolvency petition seeking to avoid a Family Court order directing payment of monthly maintenance to his wife. In doing so, the Court held that proceedings under the Presidency-Towns Insolvency Act, 1909 cannot serve as an indirect route to secure a stay of such maintenance directions or to frustrate their implementation, and that insolvency relief is not available to obstruct execution of a subsisting Family Court order. The Court further clarified that the petitioner cannot be adjudged insolvent solely on the basis of arrears arising from the maintenance award, particularly when the Family Court’s order is already under challenge in separate proceedings.

The petitioner filed an insolvency petition under Section 14 of the Presidency­ Towns Insolvency Act, 1909 seeking a declaration that he be adjudged insolvent and requesting stay of execution proceedings arising from the Family Court order dated 17 May 2021 directing payment of maintenance under Section 125 CrPC. The petitioner is a dance teacher residing in suburban Mumbai and the respondent is residing in South Mumbai. The marriage took place on 28 January 2014 and differences arose within two months, resulting in proceedings before the Family Court. The order of 17 May 2021 directed the petitioner to pay Rs. 25,000 per month with effect from 15 June 2015. The petitioner challenged that order by filing a Criminal Revision Petition before the High Court, which remains pending.

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The petitioner contended that his monthly income is between Rs. 12,000 to Rs. 15,000 and the arrears amount under the Family Court order aggregates to Rs. 22,30,000, making him unable to satisfy the liability. He invoked Sections 14(1)(a), 9(1)(f), and the Explanation to Section 10 of the Insolvency Act to claim eligibility for adjudication as an insolvent on the ground that his debts exceed Rs. 500. The petitioner relied on an order dated 15 July 2025 passed on an application by the respondent for vacating ad­interim relief. The preliminary examination report submitted on 1 October 2025 referenced loans taken before and after the Family Court order, and identified lenders including R.V. Gorgi & Co., Priya Padlekar, Jagdish Trivedi, and Ashwin Kacha.

The Court recorded that the central issue was “whether the petitioner can be declared as an ‘insolvent’ under the Presidency Towns Insolvency Act, 1909 since according to him he is unable to pay the amount ordered by the Family Court.” It stated that “Section 14(1)(a) of the Insolvency Act only lays down the qualifying amount for presenting or filing the insolvency petition by a debtor” and that “merely because the debts are more than Rs.500/-, it does not mean that automatically on a petition being filed, the Court has no option, but to declare the petitioner as an insolvent.” The Court observed that Section 10 vests discretion in the Court since the statute uses the phrase “the Court may make an order.”

It was recorded that “the Court shall not have jurisdiction to make an order of adjudication unless the debtor is imprisoned in execution of the decree of a Court for payment of money” and that the petitioner was not imprisoned at the time of presentation of the petition. The Bench stated that even if the power under Section 10 were mandatory, “the Insolvency Act cannot be abused to seek stay of the Family Court order granting maintenance” and that such relief “would amount to this Court adjudicating the said Revision Petition which is not permissible.”

The Court stated that the petitioner sought to “stall the Family Court proceedings and avoid any arrest for non­ compliance” and remarked that permitting the petition “would be permitting the petitioner to adopt two parallel proceedings after electing one.” Regarding reliance on Section 9(1)(f), the Court stated that the contention was “misplaced” because the case fell under Section 9(2). The Court observed that “what cannot be done directly cannot be done indirectly” and that the petitioner filed the petition in May 2023 after two years “to frustrate the order of payment made by the Family Court.”

The judgment cited Hemavathiamma v. Kumaravela Mudalia and recorded that maintenance does not constitute a “debt” for purposes of insolvency and represents “a general duty of the husband to support his wife.” It observed that “what is not a debt does not become a debt when the same obligation is enforced by decree or order of court.” The Court recorded that Section 45 could not assist the petitioner because it deals with the effect of discharge and refers to Section 488 of the Code of Criminal Procedure, 1898.

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The Court held that “the Insolvency Act cannot be abused to seek stay of the Family Court order granting maintenance when the petitioner himself has challenged that order in Criminal Revision Petition.” Allowing the petition “would be permitting the petitioner to adopt two parallel proceedings after electing one. The petitioner “cannot adopt a modus operandi by taking recourse to the Insolvency Act to modify or frustrate the order passed by the Family Court.”

“For all the above reasons, the present petition is dismissed. No order as to cost.”

Advocates Representing the Parties

For the Petitioner: Mr. Siddh Pamecha i/by Mr. Kuber Wagle

Case Title: Mehul Jagdish Trivedi v. Manisha Mehul Trivedi
Neutral Citation: 2025: BHC-OS:21502
Case Number: Insolvency Petition No. 01 of 2025
Bench: Justice Jitendra Jain