You won a maintenance order and he still will not pay. That is one of the most common problems in family litigation, and the reassuring answer is that a maintenance order is not a polite request a husband can ignore. It is enforceable, and the law gives the court real teeth to recover unpaid maintenance: a warrant to collect the arrears the way a fine is collected, attachment of his salary and property, and even a jail term for wilful default. This guide explains how to enforce a maintenance order when a husband refuses to pay, from the machinery under Section 128 of the Code of Criminal Procedure (now carried into the Bharatiya Nagarik Suraksha Sanhita, 2023) to execution before the family court and the practical steps that actually move money.
Key point: Unpaid maintenance is a debt you can enforce, not a favour you have to beg for. From the moment a payment is missed without a lawful excuse, the recovery machinery is available to you.
First, identify which order you are enforcing
Maintenance in India flows from more than one statute, and the enforcement route depends on which order you hold. Getting this right at the start saves months.
- Section 125 of the CrPC (now Section 144 of the BNSS, 2023): a summary order passed by a Judicial Magistrate for the maintenance of a wife, children or parents. This is the fastest and most widely used route, and it carries its own enforcement power.
- Sections 24 and 25 of the Hindu Marriage Act, 1955: interim maintenance during a matrimonial case (Section 24) and permanent alimony after the decree (Section 25), ordered by the matrimonial or family court.
- Section 20 of the Protection of Women from Domestic Violence Act, 2005: monetary relief ordered by a Magistrate, which can include maintenance.
- The Family Courts Act, 1984: where a family court exists, it hears and enforces these matters.
For the substantive right itself, our detailed guides on maintenance under Section 125 and alimony laws in India explain how the amount is fixed. This article is about the next stage: making a defaulting husband actually pay.
The core recovery machinery: Section 125(3) and Section 128
The engine of enforcement for a Magistrate's maintenance order sits in Section 125(3) of the CrPC (the corresponding provision of the BNSS, 2023). If a person ordered to pay fails to comply without sufficient cause, the Magistrate may, for every breach of the order:
- Issue a warrant to levy the amount due in the same manner as a fine is recovered, which allows attachment and sale of the defaulter's property; and
- Sentence him to imprisonment for a term that may extend to one month, or until payment is made if sooner, for the whole or any part of each month's allowance that remains unpaid after the warrant is executed.
Two features matter. First, the imprisonment is available per breach, so arrears that have piled up over several months can attract successive terms, which is what makes the threat serious. Second, imprisonment does not wipe out the debt; the husband still owes the money after serving the term. Jail here is a coercive tool to force payment, not a substitute for it.
Watch the clock: The proviso to Section 125(3) requires the application for a warrant to be made within one year from the date the amount became due. Let each instalment sit unclaimed for more than a year and you can lose the right to recover that instalment through this route. Apply promptly, and keep applying as fresh instalments fall due.
Section 128 of the CrPC (its successor in the BNSS, 2023) governs enforcement of the order itself. It provides that a copy of the maintenance order is given, free of cost, to the person in whose favour it is made, and that the order can be enforced by any Magistrate in any place where the defaulter is found, once the Magistrate is satisfied about identity and about the fact of non-payment. In plain terms, a husband cannot escape by moving to another district or state; you can enforce the order wherever he is.
Enforcement options at a glance
| Route | What it does | Where it applies |
|---|---|---|
| Warrant to levy the amount (Section 125(3) CrPC / BNSS) | Recovers arrears as if collecting a fine; attachment and sale of property | Section 125 / BNSS maintenance orders |
| Imprisonment up to one month per breach (Section 125(3)) | Coerces payment; does not extinguish the debt | Section 125 / BNSS maintenance orders |
| Enforcement by any Magistrate (Section 128 CrPC / BNSS) | Enforces the order wherever the husband is located | Section 125 / BNSS maintenance orders |
| Direct payment or attachment of salary (Section 20(6) DV Act) | Orders the employer or a debtor to pay you directly from his wages | Domestic Violence Act monetary relief |
| Execution as a money decree (Order 21 CPC) | Attachment of property, garnishee of bank accounts, sale, civil detention | HMA Section 24/25 and family court orders |
Attachment of salary and property
Two provisions make attachment practical. Under a warrant issued in the manner of a fine (traced to Section 421 of the CrPC, now re-enacted under the BNSS), the court can attach and sell the defaulter's movable property to realise the arrears. Separately, Section 20(6) of the Domestic Violence Act lets the Magistrate direct the husband's employer, or a person who owes him money, to pay a portion of his salary or wages straight to the wife. Where a husband is in steady employment, an order on his employer is often the cleanest way to recover, because it takes the money before it reaches his hands.
The Supreme Court in Rajnesh v. Neha (2020) pulled these threads together and confirmed that a maintenance order can be enforced through more than one channel at the same time: as a criminal-side order under Section 128 of the CrPC, as monetary relief under Section 20(6) of the DV Act, and as a money decree executed under Order 21 of the Code of Civil Procedure, including attachment, sale of property and civil detention. You are not limited to a single weapon.
Executing a maintenance order before the family court
Where your maintenance comes from a matrimonial court under Sections 24 or 25 of the Hindu Marriage Act, or from a family court, it is executed like a civil money decree. Section 28A of the Hindu Marriage Act says decrees and orders under the Act are enforced in the same manner as the civil court's own decrees. That opens the full range of Order 21 of the CPC: attachment and sale of the husband's property, a garnishee order on his bank account, and, for a wilful defaulter who has the means but refuses to pay, civil detention under Section 51 and Order 21 Rule 37 of the CPC. An execution petition is filed in the court that passed the order, listing the arrears and the mode of recovery you seek.
Interim maintenance versus final maintenance: does enforcement differ?
It does not, and this is where many people wrongly wait. Interim maintenance, whether granted under Section 125 or as maintenance pendente lite under Section 24 of the Hindu Marriage Act, is as enforceable as a final award. You do not have to wait for the case to end to recover unpaid interim maintenance. In Rajnesh v. Neha the Supreme Court stressed that maintenance is meant to prevent destitution during the litigation itself, and it directed that arrears of interim maintenance be recovered and that non-payment can invite the same enforcement consequences. The practical difference is only the forum: interim orders under Section 125 are enforced on the criminal side before the Magistrate, while interim orders under the Hindu Marriage Act are executed on the civil side.
Common mistake: letting arrears build up quietly in the hope that the husband will one day pay a lump sum. The one-year limitation for a Section 125(3) warrant can bar older instalments, and the longer you wait, the easier it is for him to dispose of attachable assets. File the enforcement application early and repeat it as fresh instalments fall due.
Practical steps to recover unpaid maintenance
- Get a certified copy of the order and compute the arrears precisely, month by month, up to the current date.
- Send a short written demand recording the default and the amount due. It is not compulsory, but it fixes the default and sometimes prompts payment.
- File an execution or enforcement application in the court that passed the order: a Section 125(3) application before the Magistrate, or an execution petition under Order 21 for a Hindu Marriage Act or family court order.
- Ask for the specific mode of recovery: a warrant to attach and sell property, a direction to his employer under Section 20(6) of the DV Act, a garnishee on his bank account, or a warrant of arrest for wilful default.
- Place his means on record: salary slips, property details, business income and bank particulars. Enforcement is faster when you can point the court to a specific asset.
- Follow up on every instalment and file afresh within the one-year window so no month is lost to limitation.
In practice, the single biggest lever is showing the court that the husband has the means and is choosing not to pay. Judges are far readier to issue a warrant or order civil detention against a man with a salary and assets who simply refuses, than against one who has genuinely fallen on hard times. When I advise clients on enforcement, I tell them the case is won on documents: pin down his employer, his properties and his accounts before the first hearing, because a well-evidenced default gets an order, and a vague complaint gets an adjournment.
If the arrears sit alongside other financial claims from the marriage, such as the return of jewellery and gifts, read our guide on streedhan recovery in India, and see our family and divorce law practice page for how these remedies fit together.
Frequently Asked Questions
Can my husband be sent to jail for not paying maintenance?
Yes. Under Section 125(3) of the CrPC the Magistrate can sentence a defaulter to imprisonment for up to one month for each breach of the order. The imprisonment is meant to coerce payment, and it does not cancel the arrears, which remain payable afterwards.
How long do I have to apply for recovery?
For a Section 125 order, the application to recover a particular instalment through a warrant must be made within one year from the date it became due. Do not let instalments age beyond a year; apply as they fall due.
Can the court attach his salary directly?
Yes. Under Section 20(6) of the Domestic Violence Act the Magistrate can direct the husband's employer or a debtor to pay a portion of his salary or wages to you directly. A Hindu Marriage Act or family court order can also be executed against his income and property under Order 21 of the CPC.
He has moved to another city. Can I still enforce the order?
Yes. Section 128 of the CrPC allows a maintenance order to be enforced by any Magistrate in any place where the husband is found, so relocating does not defeat the order.
Is interim maintenance enforceable, or only the final order?
Interim maintenance is fully enforceable. You do not have to wait for the case to conclude to recover unpaid interim maintenance; it is enforced the same way as a final award.
What if he says he has no money to pay?
Genuine inability to pay is a defence to imprisonment, but the burden is on him to prove it. The court looks at his real means, including undisclosed income and assets, and wilful default by a man who has the means invites coercive orders.
Do I need a lawyer to enforce a maintenance order?
You can appear in person, but enforcement turns on filing the right application in the right forum and evidencing the husband's means. Most people recover faster with counsel who runs these matters.
This article is for general information only and is not legal advice. Every case turns on its own facts and record; get specific advice before acting.
