(1) This appeal under Section 175 of the Provincial Insolvency Act, 1920, hereinafter called the Act, raises a question of some nicety on which there is no precedent of this court or of the Supreme Court it arises in this way:--
(2) The appellant is the wife of the respondent and they will be referred to as the wife and the husband respectively. The husband having neglected to support the wife, the latter sued for maintenance and obtained a decree directing payment of periodical maintenance at Rs. 15 a month. From his subsequent conduct, it appears that the husband was not disposed to comply with the decree, though he was earning and had the means to support the wife. When the wife sought to execute the decree by arrest and detention in Civil Prison, the husband contended that he had no means to pay which contention, however, was rejected by the Civil Judge, Bangalore. in R A 173/56. Thereupon, the husband filed a petition for adjudging him as insolvent alleging that he was indebted to the wife for more than Rs. 1000, that he owns no property and is unable to pay his debt. It is relevant to state that the husband did not allege that he has any debt besides his obligation to support his wife. The wife, the sole respondent to the said petition, opposed the adjudication, contending that the husband as carpenter earns daily wages of not less than Rs. 10 and though and the means, he deliberately failed to comply with the decree and the petition was not bona fide. She further contended that the liability of the husband is not a provable debt in insolvency, since the husband cannot get a release of his obligation to support his wife by recourse to insolvency.
(3) The contention of the wife found favour with the Subordinate Judge, who came to the conclusion that the obligation of the husband to support his wife is personal which he is bound to do out of his personal earning irrespective of the owning any property and that even on the admission of the husband, he was earning daily wages of Rs. 2 and that petition was not bona fide.
(4) On appeal by the husband, the District Judge disagreed with the decision of the Subordinate Judge and held that the liability of the husband under a maintenance decree is a debt and that the husband has not the means to pay the arrears, and consequently, he made an order adjudging the husband an insolvent. Against the said order, the wife has preferred the above second appeal.
(5) The precise question presented for decision is, 'Is there decree, as the one here under consideration, a debt within the meaning of the Act?'
(6) In England, the law is that the obligation to make payments of alimony is not a debt or liability provable in bankruptcy, and therefore, orders for payment of arrears of alimony may be made and enforced in spite of a receiving order, whether the arrears fell due before or after the making of a receiving order.--Vide Halsbury's Laws of England (Third Edition) Volume 2, page 322.
(7) In U.S.A. the courts have taken the same view as the courts in England and the law in U.S.A. has been summarised in American Jurisprudence--Volume 6 (Revised) page 802, para 426 thus:--
'Alimony, application for support--neither alimony in arrears at the time of the filing f the petition for bankruptcy nor alimony thereafter accruing, is a provable debt; a claim for alimony is not founded on contract express or implied, but on natural legal duty of the husband to support the wife.'
(8) The High Courts of Calcutta and Madras, however, taking a contrary view have held that the liability arising whether under a decree of civil court or an order of a Criminal court under section 488 Criminal Procedure Code is a debt provable in insolvency--Vide in the matter of Tokkee Bibee v. Abdool Khan, (1880) ILR 5 Cal 536, in the matter of S. Yahia, AIR 1936 Mad 793. Hanibabeebi v. Munurdeen, AIR 1939 Mad 183, Ranganayaki Ammal v. Rajagopalaswami Naidu : AIR1940Mad951 . The decision in Tokkee Bibee's case, (1880) ILR 5 Cal 536 was before the enactment of the Provincial and Presidency Insolvency Acts, and before the decision of the English Courts in the leading cases of Linton v. Linton, (1885) 15 QBD 239, in re; Hawkins, (1894) 1 QB 25 and Kerr v. Kerr, (1897) 2 QB 439. There is little discussion of principles in Tokkee Bibee's case, (1880) ILR 5 Cal 536. The first two decisions of the Madras High Court have referred to the decisions of the English courts but sought to distinguish them on the ground that orders granting alimony are always subject to modification and change under English law, while a decree of a Civil Court in India awarding maintenance ordinarily remains immutable and can never be modified retrospectively as the order for alimony in England can.
The High Courts of Bombay, Allahabad and Travancore-Cochin have dissented from the decisions of the Calcutta and Madras High Courts in so far as the liability arises under an order made under S. 488 of Cr. P. Code. They have held, that notwithstanding an order adjudging the husband an insolvent, the wife can seek an order for maintenance under Section 488 of Cr. P.Code and any protection order obtained from the Insolvency Court does not protect the husband from arrest for enforcement of the order under section 488--Vide In re Mohomed Ali Mithabhai. AIR 1930 Bom 114, Shyama Charan v. Anguri Devi. : AIR1938All253 , K. Narayanan v. K.Sarojakshi. AIR 1957 Trav Co. 49.
(9) In the Bombay decision referred to above, after the wife had obtained a decree for maintenance, the husband obtained an order of adjudication in insolvency. Thereupon the wife filed an application under Section 488 Cr. P. Code, for an order for maintenance. In the course of the Judgment, the court observed thus:
'The arrears of maintenance decreed by the Civil Court would be a debt which could be proved in insolvency, but future payments cannot be proved in insolvency as they are incapable of valuation and might cease at any moment if the husband and wife decided to live together. In the present case the wife was not able to get the maintenance on account of the pendency of the insolvency proceedings. Under Section 44, sub-section (1) clause (d), Prov. Insolvency Act 5 of 1920, an order of discharge shall not release the insolvent from any liability under an order for maintenance made under Section 488, Criminal P.C., 1898. Though there is a decree of the Civil court in existence, it is merely a paper decree which cannot be executed on account of the pendency of the insolvency proceedings. A mere decree of a Civil Court awarding maintenance is not equivalent to maintaining the wife. Under these circumstances, we think that the Magistrate has jurisdiction under S. 488 to pass an order for maintenance in favour of the wife'.
In the Allahabad's case cited above, the question was whether protection order obtained from the Insolvency Court, afforded protection against arrest or detention under the orders of the Criminal court for enforcement of an order under section 488 Criminal procedure Code. Allsop J. held that insolvency afforded no protection against arrest or detention for enforcement of an order under Section 488. In the course of the judgment, the learned Judge observed:
'It has also been urged that the mere fact that the applicant has been adjudicated an insolvent shows that he is unable to pay for the maintenance of his wife and that that constitutes sufficient cause for non-payment. here again, I am unable to agree. Learned counsel has suggested that the whole of the insolvent's property vests in the receiver and there is nothing left out of which he can maintain his wife. This argument overlooks the fact that the property of the insolvent which vests in the receiver does not include any property which is exempted by the Code of Civil Procedure 1908 from liability to attachment and sale in execution of a decree.
Under the provisions of section 60, Civil P. C. as now enacted, the salary to the extent of the first hundred rupees and one half of the remainder of such salary is exempt from attachment. The applicant would therefore if he is prepared to do work and earn salary, be in position to support his wife'.
The Travancore-Cochin decision followed the view of the Allahabad High Court in preference to the view taken by the Madras High Court.
(10) Section 10 of the Act lays down the conditions on which a debtor may petition for adjudging him an insolvent. That section read:
'10. (1) A debtor shall not be entitled to present an insolvency petition, unless he is unable to pay his debts and-
(a) his debts amount to five hundred rupees; or
(b) he is under arrest or imprisonment in execution of the decree of any Court for the payment of money; or
(c) an order of attachment in execution of such a decree has been made, and is subsisting, against his property.
(2) xx (omitted as unnecessary) xx
It will be seen from the above section that the petitioner seeking adjudication must satisfy the conditions laid down therein. he must be a 'debtor' and he must show that he is unable to pay his 'debts'. The definition of the words 'debt' and 'debtor' found in section 2 of the Act as 'debt' includes a judgment-debt, and 'debtor' include a judgment-debtor, is not helpful in deciding the question at issue.
'The word 'debt' is derived from the Latin 'Debere' meaning to owe, 'debitum' meaning something owned. It is a common law word of technical meaning; but it has no fixed legal meaning, and it does not have a fixed or invariable signification. It takes shades of meaning from the occasion of its use, and colour from the occasion of its use, and colour from accompanying use, and it is used in different statutes and constitution n senses varying from a very restricted to a very general one. The word implies the existence of a debtor, legality of the obligation, the existence of a consideration, and execution of performance by the creditor' (aa) 26 Corpus Juris Secundum--page1.
(11) The legal concept of 'debt' has been stated by Blackstone in his classical Commentaries on the Laws of England, (12) Volume 3, 3rd Edn. page 162 as follows;
'The legal acceptation of debt is, a sum of money due by certain and express agreement; as, by a bond for a determinate sum; a bill or note; a special bargain: or a rent reserved on a lease; where the quantity is fixed and specific, and does not depend upon any subsequent valuation to settle it. The non-payment of these is an injury, for which the proper remedy is by an action of debt, to compel the performance of the contract and recover the special sum due. This is the shortest and surest remedy; particularly where the debt arises upon a speciality, that is upon a deed or instrument under seal. So also, if I verbally agree to pay a man a certain price for a certain parcel of goods, and fail in the performance, an action of debt lies against me; for this is also a determinate contract; but if I agree for no settled price, I am liable not to an action of debt, but to a special action, according to the nature of my contract'.
The legal concept of 'alimony' has been explained by Blackstone in his Commentaries (12) Volume 3 (3rd Edition) page 104 thus;
'Suit for Alimony:
The next species of matrimonial cause is a consequence drawn from one of the two former', which signifies maintenance; which suit the wife may have against her husband, if he neglects or refuses to make her an allowance suitable to their station in life. This is in injury to the wife, which is redressed by assigning to her a competent maintenance, and compelling the husband to pay it.'
According to common law concept, therefore, neglect or refusal to support the wife by making her an allowance suitable to her station in life gives right to the wife to sue the husband for maintenance, and the injury to the wife is redressed by awarding to her a proper maintenance and compel the husband to pay it.
(12) The ratio decided of the decisions of the Courts in England and U. S. A. holding that alimony is not provable in bankruptcy is, that the award of alimony or maintenance does not arise from any contract express or implied, but from the relation of marriage and that the alimony or maintenance is awarded not in payment of a debt but in performance of a general duty of the husband to support his wife, made specific and measured by decree of court. In the words of Justice Day, who delivered the opinion of the Supreme Court of U.S.A. in Wetmore v. Markoe, (1904) 49 law Ed. 390 the principle is stated thus:
'..............the doctrine that a decree awarding alimony to the wife or children or both, is not a debt which has been put in the form of a Judgment, but is rather a legal means of enforcing the obligation of the husband and father to support and maintain his children. He owes this duty, not because of any contractual obligation, or as a debt due from him to the wife, but because of the policy of the law which imposes the obligation upon the husband. The law interferes when the husband neglects or refuses to discharge this duty, and enforce it against him by means of legal proceedings'.
Under the Hindu Law, which governs the parties in the instant case, a Hindu is under a legal obligation to maintain his wife, his minor sons, his unmarried daughters and his aged parents, whether he possesses any property or not. The obligation to maintain these relations is personal in character and arises from the very existence of relationship of the parties. When a Hindu refuses or neglects his legal duty, the court enforces that duty my making a decree in favour of the wife or children. When the court awards maintenance to the wife against her husband, it does not enforce the payment of any debt. Unless insolvency releases a man altogether from the obligation to support his wife and children, the husband cannot obtain discharge of his liability under a decree for maintenance by recourse to insolvency. The object of insolvency law is not to deprive the wife and children of the support and maintenance due from the husband and father which it has ever been the purpose of the law to enforce. Systems of bankruptcy or insolvency have been designed with the object of relieving the honest debtor from the weight of indebtedness which has become oppressive and to permit him to have a fresh start in business or commercial life freed from the obligation and responsibilities which may have resulted by his misfortunes. Unless expressly required by statutory enactment, the court should not presume the intention on the part of the Legislature in providing a law for giving relief to unfortunate debtors, to make the law a means of avoiding enforcement of obligation moral and legal devolved upon the husband to support his wife and to maintain and educate his children.
(13) If liability under a decree for maintenance against the husband is held to be a debt provable in insolvency, on his discharge, the husband would be released from all obligation to support his wife. under S. 28 of the Act, the entire salary or personal earnings of an insolvent after an adjudication, does not vest in the Receiver, but only so much of the salary or personal earnings are not exempt from attachment under section 60 of the Code of Civil Procedure. Salary to the extent of first Rs. 200 and one half of the remainder is exempt from attachment under Section 60(1)(i) of the Code. Now, take the instance of an insolvent earning a salary of Rs. 200. His salary will be entirely his and not a paisa out of it will vest in the Receiver for distribution among his creditors. Now, for distribution among his creditors, Now if the obligation to maintain the wife and children is held to be a provable debt against the estate of the insolvent, the wife and children cannot claim any portion of the salary for their maintenance.
(14) The reason given by the High Court of Madras in the decisions cited above for distinguishing the ratio of the English cases, was that a decree or order for maintenance in India unlike an order for alimony in England is unalterable and therefore, it is a debt provable in insolvency. Similar contention was urged in (1904) 49 law Ed 390 before the U. S. A. Supreme Court. it was a case where the liability for maintenance had become fixed by an unalterable decree. It was held that the ground of distinction urged did not change the nature of the obligation on which the judgment is founded. This is what Mr. Justice Day in repelling the contention stated:
'While it is true in this case the obligation has become fixed by an unalterable decree so far as the amount to be contributed by the husband for the support is concerned, looking beneath the judgment for the foundation upon which it rests, we find it was not decreed for any debt of the bankrupt, but was only a means designed by the law for carrying into effect, and making available to the wife and children, the right which the law gives them as against the husband and father'.
In my opinion, the reasoning of the decision n (1904) 49 law Ed. 390 is equally applicable to cases arising under Indian Insolvency Acts. In my opinion, if the obligation of the husband, in the absence of a judgment or order does not constitute a debt owned by the husband to his wife, it does not, become a debt when the very same obligation is enforced by decree of court and therefore, what the court has to ascertain s whether the obligation to support one's wife and minor children is a 'debt' for the purposes of the Act. What is not a debt does not become a debt when the same obligation is enforced by decree or order of court. In my judgment, the decree as the one here under consideration is not a 'debt' within the meaning of the Act and it cannot form the basis of adjudication of the husband, an insolvent.
(15) The court below was impressed by the fact that the maintenance under the decree has accumulated and the arrears at present are large. The decree was for payment of a paltry sum of Rs. 15 a month and the amount was fixed after taking into consideration the earnings of the husband. In his deposition, the husband admitted before the Subordinate Judge's Court that he is earning Rs. 2 or Rs. 3 a day. From that earning, he could have paid the maintenance as decreed by the court or he could have brought his wife and child to his house and maintained them. he not only neglected his duty, moral and legal, but defied the decree of court and put every obstruction when the decree was sought to be executed. the law of Insolvency, as already stated, s not intended to deprive the wife and minor children of the support and maintenance due to them from the husband and father. The court below in my opinion, was in error in holding that the husband has established the necessary condition for adjudging him an insolvent, and that order cannot be supported.
(16) For the reasons stated above, the appeal is allowed, the order of the District Court is set aside, and the order of the Sub-ordinate Court is affirmed. The respondent will pay the costs of the appellant in this court and the courts below.
(17) Appeal allowed.