Imprisonment for non-payment of child’s alimony

‘’The person liable to pay child’s alimony has the right to be heard before a warrant of imprisonment is issued against him"

The liable parent ordered to pay maintenance for his minor child, who is usually the father, must pay the amount in a timely and consistent manner to meet the minor's maintenance needs. If he fails to comply, the other parent usually the mother, has the right to sign an affidavit to the Family Court to issue a warrant for his imprisonment. The Court, due to his failure to comply with the maintenance order, summons the liable parent to appear before it and then may issue a warrant of imprisonment for the period specified in the warrant and additionally for the period specified for the amount of costs to execute the warrant of imprisonment.

The matter is specifically regulated in the Criminal Procedure Law, Cap. 155, Part IV Executions and Collection of Fines, where Article 124A provides for imprisonment for non-payment of the maintenance amount. The Court shall not issue the warrant of imprisonment unless the debtor is first summoned to pay the amount of maintenance and does not appear, or if he does appear the Court hears the reasons why the debtor was not able to pay the maintenance and then issues the warrant. The Court has discretion to give him reasonable time to pay.

Legislation

Article 124A of Cap. 155 provides that in cases where a person fails to comply with an alimony order, issued pursuant to the Spousal Property Relations Law and the Parent-Child Relations Law, the person for whose benefit the order was issued may file with the Court an affidavit for the issuance of a warrant of imprisonment against the person who failed to comply. The Court, after summoning the affected person to appear before it as may be prescribed, may issue a warrant of imprisonment against the affected person for the period specified in the warrant and for such further period to which the person may be liable in respect of the costs of execution of the warrant of imprisonment.

In order to enable the appearance of the affected person and to issue the warrant of imprisonment under section 124A, the Court shall summon the affected person in writing to appear before it on the date specified in the summons, which shall be no later than fifteen days after the filling of the affidavit, to explain the reasons why he failed to comply with the alimony order and informs him that in the event of his non-appearance the prison warrant may be issued.

Service of the summons shall be in the prescribed form and may be accomplished by sending the summons to the affected person by ordinary post in a letter addressed to him at his last known or usual place of residence. If the affected person does not appear in Court on the appointed date the Court may issue the warrant of imprisonment.

If the person imprisoned under the above statutory provisions pays the amount due then the prison officer in charge shall discharge him.

Application for permission to issue a prerogative order of Certiorari

The Supreme Court, in the decision it issued in the application 107/2024 dated 19.06.2024, examined the request of a person liable to pay alimony who requested permission to file an application for the issuance of a prerogative order of Certiorari to cancel the warrant of imprisonment issued by the Family Court in an application for alimony. The liable applicant submitted that the warrant of imprisonment against him was issued in violation of the rules of natural justice, because he was not served with a summons in time to enable him to attend and be heard in the proceedings. He claimed to this effect that he was informed by his work that a letter had arrived from the Court after the date for appearing in Court had passed.

The Court while examining the application found an important element presented by the applicant namely that in the affidavit of his ex-wife that accompanied the summons he received, her affidavit was dated the day the applicant was summoned to appear in Court. The Court on this basis held that, if there is no other explanation, this means that the letter was sent to the applicant's work on the day he was called to appear in Court, i.e. the same day his ex-wife sworn her supplementary affidavit and therefore it was too late to give the applicant an opportunity to appear in the proceedings.

The Court referred to the provisions of Article 124A of Cap. 155 and to jurisprudence which emphasized the effects of the deprivation of the rights guaranteed by Article 30 of the Constitution. It emphasized that deviation from the principle of a fair trial, guaranteed by Article 30.2 of the Constitution, invalidates the trial and renders the result invalid. In a similar way and for similar reasons, deprivation of the rights guaranteed by article 30.3 has the same consequences as long as their exercise is sought within the framework of the judicial function and not outside or in opposition to them.

It therefore ruled that the applicant was not summoned in time to be able to appear in the proceedings in which his warrant of imprisonment was issued and granted him leave to file an application with a summons for the issuance of a prerogative order of Certiorari and annulment of the order of imprisonment which it suspended.