A maintenance order is only as good as its enforcement. A separate explainer on this site describes how a maintenance application proceeds to an order; this note takes up what follows when the order is not obeyed. The statutes supply a graded set of coercive tools — recovery in the manner of fines, imprisonment, execution against salary and property, and direct payment by an employer — and the Supreme Court has directed that they be used effectively.
The order is the beginning, not the end
Maintenance orders in Delhi issue from several forums: the Magistrate under Section 144 of the BNSS, corresponding to Section 125 CrPC; the Family Court under Sections 24 and 25 of the Hindu Marriage Act, 1955; and the Magistrate under Section 20 of the Protection of Women from Domestic Violence Act, 2005. Each statute carries its own enforcement machinery, and the first task after default is to identify which order has been disobeyed, because that determines the route. In Rajnesh v. Neha, decided on 4 November 2020, the Supreme Court framed nationwide guidelines for maintenance proceedings — requiring a mandatory affidavit of disclosure of assets and liabilities from both parties and directing that maintenance ordinarily be awarded from the date of application — and it specifically directed that maintenance orders be enforced effectively, noting the modes available under Section 125(3) CrPC, under the Code of Civil Procedure including Order XXI, and, in appropriate cases, contempt jurisdiction and the striking off of the defaulter’s defence.
Section 144(3) BNSS: warrant, recovery as a fine, imprisonment
Where an order under Section 144 of the BNSS is disobeyed without sufficient cause, sub-section (3) arms the Magistrate with two coercive powers. First, a warrant may be issued for levying the amount due in the manner provided for levying fines — which brings in the recovery machinery applicable to fines, including attachment and sale of the defaulter’s movable property. Second, if the amount remains unpaid after execution of the warrant, the Magistrate may sentence the defaulter to imprisonment for a term which may extend to one month for each month’s allowance remaining unpaid, or until payment if sooner made.
Two features of this provision are decisive in practice. The first proviso fixes a limitation: no warrant shall issue unless the application to levy the amount is made within one year from the date on which it became due. Arrears must therefore be pursued promptly, instalment by instalment, and a recipient who sleeps over accumulating default risks losing this summary remedy for the older months. Secondly, imprisonment is coercive and not compensatory — undergoing the sentence does not discharge the arrears. The liability survives, and recovery proceedings against property can continue even after the defaulter has served the term.
Which order, which route
Section 144 BNSS order
Application under Section 144(3) within one year of each amount falling due; warrant to levy the sum as a fine, attachment and sale of movables, and imprisonment up to one month per month of unpaid allowance.
Sections 24/25 HMA order
Enforced under Section 28A HMA as if it were a decree of the court. Execution under the CPC follows — attachment of salary, bank accounts and immovable property through the execution machinery.
Section 20 DV Act relief
On failure to pay, Section 20(6) permits the Magistrate to direct the respondent’s employer or a debtor of the respondent to pay the amount directly to the aggrieved person or to deposit it in court.
Persistent default in matrimonial litigation
Courts may, as a coercive step, strike off the defence of a spouse who persistently disobeys an interim maintenance order, so that the proceeding continues without that party being heard on the merits.
Execution as a decree, and direct payment under the DV Act
Orders for maintenance pendente lite under Section 24 and permanent alimony under Section 25 of the Hindu Marriage Act are, by Section 28A of that Act, enforceable in the same manner as decrees. This opens the full execution apparatus of the Code of Civil Procedure to the decree-holder. In Delhi, execution is taken out before the Family Court, and the standard modes are attachment of salary through the employer, attachment of bank accounts, and attachment and sale of movable or immovable property. The execution petition should set out the order, the arrears month by month with credit for payments received, and the precise mode of execution sought.
The Domestic Violence Act contains its own short-circuit. Where monetary relief ordered under Section 20 is not paid, Section 20(6) empowers the Magistrate to direct the employer of the respondent, or a debtor of the respondent, to pay the ordered amount directly to the aggrieved person, or to deposit with the court a portion of the wages, salaries or debt due to the respondent. This converts the employer into the paying hand and removes the monthly friction of chasing a reluctant respondent. Where the respondent is salaried, it is often the most effective single remedy under the Act.
Striking off the defence and the contempt jurisdiction
Beyond recovery of money, courts hold disciplinary levers over a litigant in default. A spouse who persistently disobeys an order for interim maintenance in matrimonial proceedings may have the defence struck off, so that the case proceeds without that party contesting on the merits — a coercive step the Supreme Court in Rajnesh v. Neha recognised as available in appropriate cases, alongside recourse to the contempt jurisdiction. These are not routine orders; they are reserved for wilful and continued default. But their availability means that non-payment carries litigation consequences as well as financial ones.
Practical points for both sides
Obtain a certified copy of the maintenance order before initiating any enforcement step; it is the foundation of the execution or levy application.
Compute the arrears on affidavit — month, amount due, amount paid, balance — so the court has an exact figure to enforce.
Account honestly for part-payments; credit must be given for every sum actually received, and suppression damages the enforcing party’s credibility.
Move under Section 144(3) BNSS within one year of each instalment falling due; do not let arrears age past the proviso.
A payer whose circumstances have genuinely changed should seek modification under Section 146 of the BNSS, corresponding to Section 127 CrPC — unilateral default is not a substitute for a modification application.
The affidavit of disclosure of assets and liabilities mandated by Rajnesh v. Neha serves enforcement as much as assessment: the salary, accounts and assets disclosed at the assessment stage are the very targets of attachment if default later occurs.
A closing word
The law does not leave a maintenance order to the goodwill of the payer. Each statute supplies its own machinery, and the courts may add the weight of contempt and the striking off of a defence in cases of wilful default. Choosing the correct route for the particular order, and moving within the statutory time, is what converts an order on paper into maintenance actually received.
Frequently Asked Questions
Does imprisonment of the defaulter wipe out the unpaid maintenance?
No. Imprisonment under Section 144(3) of the BNSS is a coercive measure, not a mode of satisfaction. The arrears remain recoverable even after the sentence is undergone, and the court can continue to proceed against the defaulter's property for the amounts still due.
Is there a time limit for enforcing arrears under Section 144(3) BNSS?
Yes. The first proviso requires the application to levy the amount to be made within one year from the date on which it became due. A recipient should therefore move the court promptly as instalments fall due rather than allowing arrears to accumulate over long periods.
Can maintenance be recovered directly from the payer's employer?
Under the Domestic Violence Act, yes. Section 20(6) permits the Magistrate to direct the respondent's employer, or a debtor of the respondent, to pay the amount directly to the aggrieved person or to deposit it in court. For HMA orders executed as decrees, attachment of salary is available under the CPC.
What should a payer do if he genuinely cannot pay the ordered amount?
Apply for modification under Section 146 of the BNSS, corresponding to Section 127 CrPC, showing the change in circumstances on affidavit, and comply with the existing order in the meantime. Simply stopping payment invites warrants, imprisonment and, in matrimonial proceedings, the striking off of the defence.