Enforcing a Maintenance Order: Salary Attachment and Arrest

When a maintenance order is not being paid, maintenance enforcement in India runs along three separate tracks, and most people only ever use one. The criminal track lets a Magistrate issue a warrant to recover the arrears the way a fine is recovered and, failing that, send the defaulter to prison for up to one month for each month left unpaid. The civil track treats the order as a money decree and allows salary, bank accounts and movable property to be attached in execution. The third, available in domestic violence proceedings, makes the employer pay a slice of the salary straight to the claimant.

Maintenance enforcement in India: the three routes

Which route is open depends on the provision your order was passed under. An order under what was Section 125 of the Code of Criminal Procedure, 1973 and is now Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 is enforced under Sections 144(3) and 147 BNSS, the latter being the old Section 128 CrPC. A decree or order under the Hindu Marriage Act, 1955 is enforced under Section 28A of that Act, which says such decrees are enforced in the same manner as decrees of the court in its ordinary original civil jurisdiction, that is, through Order XXI of the Code of Civil Procedure, 1908. A monetary relief order under the Protection of Women from Domestic Violence Act, 2005 has its own route in Section 20(6).

In Rajnesh v. Neha, decided on 4 November 2020, the Supreme Court dealt at length with why maintenance orders go unpaid: delay in execution, concealment of assets, and the absence of effective machinery to secure payment. It directed that affidavits of assets and liabilities be filed in every maintenance proceeding, that maintenance ordinarily run from the date of the application, and that a defaulting party's order be enforced under Section 128 CrPC and other available remedies. The practical significance is simple. The disclosure affidavit filed at the start becomes the map you use later to find the assets.

Which enforcement machinery is open to you depends entirely on the provision your order was passed under.

Route one: the warrant and imprisonment under Section 144(3) BNSS

Section 144(3) BNSS says that if a person ordered to pay fails without sufficient cause to comply, the Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence the person, for the whole or any part of each month's allowance remaining unpaid after execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made.

Three things follow. The warrant comes first and imprisonment second, so a court will normally attempt recovery before ordering detention. Imprisonment is calculated per month of default, which is why a claimant with eighteen months of arrears is in a stronger position than one applying after a single missed payment. And detention ends the moment payment is made.

What imprisonment does not do is wipe out the debt. In Kuldip Kaur v. Surinder Singh, decided on 3 November 1988, the Supreme Court put it plainly: sentencing a person to jail is a mode of enforcement, not a mode of satisfaction, and the liability can be satisfied only by actual payment of the arrears. A husband who serves the sentence still owes every rupee.

Key takeaway. Arrears do not disappear because the defaulter went to prison. They also do not disappear because he changed jobs, moved cities or remarried. They stop only when they are actually paid, or when the order is varied or cancelled by a court.

The one year trap, and how Section 147 BNSS works around it

The first proviso to Section 144(3) BNSS quietly destroys the largest claims. No warrant shall be issued for recovery of any amount due unless application is made to the court to levy it within one year from the date it became due. A claimant who waits five years risks being told that four of them cannot be recovered by warrant.

There is a way through. In Mohammad Usman v. State of U.P., decided on 31 August 2021 and reported as 2021 SCC OnLine All 640, the Allahabad High Court held that the one year period is an interdict only on issuance of a warrant under Section 125(3) CrPC, and is not a fetter on the right to claim enforcement under Section 128 CrPC, now Section 147 BNSS. Section 147 lets the order be enforced by any Magistrate wherever the defaulter may be, on that Magistrate being satisfied about identity and non-payment.

Even so, no claimant should rely on that route by choice. The safe practice is to file a fresh recovery application every year, or every few months, so that no instalment falls outside the one year window. It is tedious, and it is the single most effective habit in this area.

Deadline warning. Every unpaid instalment carries its own one year clock under the first proviso to Section 144(3) BNSS. Diarise a recovery application at least once a year. Letting arrears build into a headline figure before applying is how large claims get cut down.

Route two: execution as a money decree, and attaching the salary

Where the order is a decree or order under the Hindu Marriage Act, Section 28A brings the whole execution machinery of the Code of Civil Procedure into play, and the same machinery serves maintenance decrees under the Hindu Adoptions and Maintenance Act, 1956. This is the route that reaches salary, bank balances and property, and it is under-used because it takes more drafting than a one page recovery application.

The tools that matter are these. Rule 41 of Order XXI lets the court examine the judgment debtor on oath about his property and require an affidavit disclosing it. Rule 48 provides for attachment of the salary of servants of the Government, a railway company or a local authority, and Rule 48A does the same for employees of private employers, binding the employer, who becomes liable for any sum paid in contravention. Rule 46 is the garnishee route, used to reach a bank holding the debtor's account. Rules 37 to 40 govern arrest and detention, and Section 51 of the Code requires reasons to be recorded before detention is ordered.

Maintenance is treated differently from ordinary debt on how much salary can be taken. The proviso to Section 60(1) of the Code lists what is not liable to attachment. Clause (i) exempts the first one thousand rupees and two thirds of the remainder in execution of any decree other than one for maintenance. Clause (ia) exempts only one third of the salary in execution of a maintenance decree. A maintenance creditor can therefore reach up to two thirds of the salary, where an ordinary creditor reaches far less.

Comparing the routes

Route three: making the employer pay under Section 20(6)

Section 20(6) of the Domestic Violence Act is the most direct provision in the subject and the least invoked. On failure to pay under a monetary relief order, the Magistrate may direct the employer or a debtor of the respondent to pay the aggrieved person directly, or deposit in court, a portion of the wages, salary or debt due, adjusted against the monetary relief.

The practical value is that it bypasses the defaulter entirely. No warrant has to be executed, no property traced, and the money lands with the salary cycle. It requires proof of two things: the employer's identity and address, and the failure to pay. Both are documentary, which is why the papers filed at the start of the case matter so much.

What to file, and in what order

1. Get a certified copy of the order and a statement of account showing each instalment, the date it fell due, what was paid and the balance. Courts move faster on a clean arrears table than on a narrative.
2. File the recovery application under Section 144(3) BNSS for criminal-side orders, or the execution petition under Order XXI for civil-side decrees, well within limitation.
3. Ask for examination of the judgment debtor under Order XXI Rule 41 and for an affidavit of assets and liabilities in the Rajnesh v. Neha format. Most claimants skip this step and most later regret it.
4. Identify the employer, the salary account and the disbursing officer. Employment details, PF numbers, bank statements and income tax records already on file are the usual sources.
5. Apply for attachment of salary under Order XXI Rule 48 or 48A, or for a direction under Section 20(6) of the Domestic Violence Act where the order came from that Act.
6. Apply for a garnishee order under Order XXI Rule 46 against the bank if the salary route is blocked, for instance where the debtor is self employed or paid in cash.
7. Press for detention only after recovery has been attempted, under Section 144(3) BNSS or Order XXI Rules 37 to 40 with Section 51 CPC.
8. Repeat the recovery application at regular intervals so that no instalment ages past the one year proviso.

How long can a defaulter actually be detained?

On the criminal side, Section 144(3) BNSS caps it at one month for each month's unpaid allowance, or until payment. On the civil side, Section 58 of the Code of Civil Procedure sets the limits: not exceeding three months where the decree is for a sum exceeding five thousand rupees, and not exceeding six weeks where it exceeds two thousand but not five thousand. No detention order can be made where the total does not exceed two thousand rupees. Section 58(2) adds that a judgment debtor released from detention is not discharged from the debt, although he cannot be re-arrested under the same decree.

Detention is a pressure device with a short fuse, not a recovery mechanism. Courts are reluctant to order it where the debtor shows genuine inability rather than wilful refusal, and that distinction is where most of the argument happens. See also our note on execution of a decree for money recovery.

Common mistake. Asking for arrest first. Benches read that as an attempt to coerce a settlement rather than to recover money, and the application often ends in an adjournment for the claimant to first exhaust attachment. Ask for the warrant and the attachment, and let detention be the consequence of their failure.

Detention is capped by statute, and the caps differ sharply between the criminal and the civil route.

Indicative costs and timelines

These are ranges observed in ordinary practice, not a quotation. Court fee on a recovery application on the criminal side is nominal. An execution petition attracts a process fee and, in some states, a fee scaled to the amount claimed, so check with the court concerned.

On timing, a recovery application under Section 144(3) BNSS is often listed within a few weeks, but the gap between filing and actually receiving money commonly runs from several months to well over a year, because warrants must be served, employers must respond and adjournments accumulate. A salary attachment, once granted and served on a traceable employer, is the fastest route because it operates automatically each month. Where the defaulter is self employed, paid in cash or has left the jurisdiction, enforcement takes materially longer and no outcome or date can be promised.

A note from practice

The pattern seen most often in enforcement matters is not a defaulter with no money. It is a claimant with no information. Where the order was obtained years earlier without any affidavit of assets and liabilities being insisted upon, the execution petition starts from zero: no employer name, no salary account, no property description. Everything then has to be reconstructed through Order XXI Rule 41 examinations and third party summonses, which is slow and often incomplete. The lesson runs backwards into the main case: the disclosure obtained while the claim is being fought is the asset you will execute against later. See also our notes on maintenance under Section 125 and recovering unpaid maintenance, and the overview of our family and divorce law practice.

Related guides and where to get help

If this is a live problem rather than background reading, our family and divorce law practice handles these matters from Bengaluru, including for clients who cannot attend court in person. These guides go deeper on the neighbouring questions:

• Enforcing an Emergency Arbitrator's Order in India
• Enforcing an Interim Order Under the Domestic Violence Act
• How to Enforce a Child Custody or Visitation Order in India

Frequently Asked Questions

This article is general information and not legal advice. The correct enforcement route depends on the statute your order was passed under, the arrears position and the defaulter's circumstances.