A familiar threat in maintenance litigation runs: "he says he is going into insolvency, so we will get nothing." The threat misunderstands the Insolvency and Bankruptcy Code, 2016 (IBC). For individuals, the Code is built around a category called excluded debts — liabilities that no resolution plan, repayment plan or bankruptcy discharge can touch. A liability to pay maintenance to any person under any law sits squarely in that category. This article explains what that means for the wife, children or parents holding a maintenance order, and what it does not mean.
The architecture: excluded debts under Part III of the IBC
Part III of the IBC governs insolvency and bankruptcy of individuals and partnership firms. Its machinery — the fresh start process for the smallest debtors, the insolvency resolution process built around a repayment plan, and bankruptcy with eventual discharge — all works on the debtor's qualifying debts. Section 79(15) then carves out the debts that the process cannot reach. Excluded debts include:
- liability to pay fines imposed by a court or tribunal;
- liability to pay damages for negligence, nuisance or breach of a statutory, contractual or other legal obligation;
- liability to pay maintenance to any person under any law for the time being in force;
- liability in relation to a student loan; and
- any other debt prescribed.
The phrase "under any law" matters. It covers maintenance under Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (formerly Section 125 CrPC), interim and permanent alimony under Sections 24–25 of the Hindu Marriage Act, 1955, monetary relief and maintenance under the Protection of Women from Domestic Violence Act, 2005, maintenance under the Hindu Adoptions and Maintenance Act, 1956, parallel provisions of other personal laws, and orders for parents under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.
What exclusion means in each process
| Process | Effect on ordinary debts | Effect on maintenance |
|---|---|---|
| Fresh start (Chapter II, Part III) | Qualifying small debts can be written off | Maintenance is not a qualifying debt; it survives in full |
| Insolvency resolution process (Chapter III) | Debts restructured under a repayment plan approved by creditors | Maintenance stays outside the plan and continues to accrue and bind |
| Bankruptcy (Chapter IV) | Discharge releases the bankrupt from bankruptcy debts | Discharge does not release excluded debts; arrears and future maintenance remain enforceable |
| Corporate insolvency (Part II) | Moratorium protects the company; resolution plan binds its creditors | Personal maintenance liability of a promoter or director is untouched by the company's CIRP |
Why Parliament drew the line here
Insolvency law balances two interests: giving an honest debtor a second chance, and paying creditors fairly from limited assets. Maintenance belongs to neither side of that commercial ledger. It is not a bargain gone wrong but a status obligation — the law's insistence that dependants not be left destitute. Treating it as just another unsecured claim would let the insolvency process do what the maintenance jurisdiction exists to prevent. The exclusion keeps the two regimes in their lanes: creditors share the estate; dependants keep their statutory lifeline.
Practical pointers for the maintenance holder
And for the paying side
A payer in genuine financial collapse is not without remedies — but the remedy lies in the maintenance jurisdiction, not the insolvency forum. The honest course is an application to vary the order on proof of changed circumstances, with full disclosure of the insolvency proceedings, assets and current income. What the law does not permit is using the IBC as a shield: the excluded-debt provision was written precisely to stop that argument before it starts.
This article describes the interaction of two statutory regimes in general terms and is not legal advice. Specific cases turn on their facts and the orders actually in force.
Frequently Asked Questions
Can a husband escape maintenance by declaring insolvency or bankruptcy?
No. Under Section 79(15) of the Insolvency and Bankruptcy Code, 2016, "excluded debts" include a liability to pay maintenance to any person under any law. Excluded debts are kept outside the fresh start, insolvency resolution and bankruptcy processes for individuals, so they are neither restructured nor discharged. The duty to maintain continues at full value.
Does an insolvency moratorium stay maintenance proceedings?
The interim moratorium and moratorium in individual insolvency operate in respect of the debts that are part of the process. Since maintenance is an excluded debt, the protection built around the insolvency process is not designed to shield the debtor from his maintenance obligations, and the duty to pay continues. Where any stay is asserted in a pending matter, the maintenance holder should place the excluded-debt provisions before the court concerned.
What if the defaulter is a director whose company is in CIRP?
The corporate moratorium under Section 14 IBC protects the company — the corporate debtor — not its directors, promoters or shareholders personally. A maintenance order against the individual runs against his personal income and assets, and the company's insolvency is relevant only to the extent it genuinely affects his income, which he must still prove like any other change of circumstance.
Is maintenance provable against a deceased defaulter's estate?
Separately from the IBC, maintenance obligations of a deceased Hindu can follow his estate in the hands of heirs under the Hindu Adoptions and Maintenance Act, 1956, to the extent of the estate received. Insolvency of the estate is dealt with under succession law; the maintenance claimant should assert the claim promptly in any administration of the estate.