• Written by: admin
• October 30, 2026

A maintenance order helps only when the money arrives. This guide explains maintenance arrears recovery under the new law, the key deadlines, and the defences open to a paying spouse.

The Law on Maintenance Arrears Recovery

Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) replaced Section 125 CrPC from 1 July 2024. Sub-section (3) deals with non-payment. If the paying person fails to comply without sufficient cause, the Magistrate can issue a warrant to levy the amount like a fine. After that, the Magistrate may sentence the defaulter to jail for up to one month, or until payment, for each unpaid month.

However, a key proviso applies. The court can issue a warrant only if the claimant applies within one year from the date the amount fell due. Section 147 BNSS (earlier Section 128 CrPC) also lets the claimant enforce the order before any Magistrate where the defaulter lives or works.

Orders under the Hindu Marriage Act or the DV Act usually work like civil decrees. So the claimant can seek attachment of salary, bank accounts or property.

Key Case Law

• Kuldip Kaur v. Surinder Singh (Supreme Court, 1988): The Court held that jail only enforces payment. It does not wipe out the arrears, so the husband still owed the money after serving his term.
• Poongodi v. Thangavel (Supreme Court, 27 September 2013): The Court read the one-year proviso narrowly. It bars only the warrant-and-jail route for stale dues, not the claim itself.
• Rajnesh v. Neha (Supreme Court, 4 November 2020): The Court laid down uniform guidelines on maintenance, including asset disclosure and enforcement. Courts now rely on it to strike off the defence of a wilful defaulter.
• Vasu Bajaj v. Rakesh Bajaj (Delhi High Court, 23 August 2023): A Division Bench held that a final maintenance order fixes a definite sum, which becomes a debt. The wife could therefore recover older arrears through a civil suit, with interest.
• Ajeesh Kumar v. Shailaja (Madras High Court, 16 December 2024): The Court upheld an order striking off a husband’s defence because he kept ignoring maintenance orders.
• Mohammad Shahzad v. State of U.P. (Allahabad High Court, 2026): The Court held that a Family Court cannot issue recovery and arrest warrants together. Recovery must come first, and jail follows only if recovery fails.

Step-by-Step: How to Recover Unpaid Maintenance

1. Calculate the arrears. Prepare a month-wise chart of dues, payments and balance.
2. Watch the one-year window. Apply under Section 144(3) BNSS within one year of each missed instalment. File fresh applications for later defaults.
3. Choose the right court. Approach the court that passed the order, or use Section 147 BNSS where the defaulter now lives.
4. Seek a recovery warrant first. Ask the court to attach salary, bank accounts or movable property. Jail becomes available only if recovery fails.
5. Use the pending case. If the divorce or main case is still running, apply to strike off the defaulter’s defence.
6. File a civil suit for older dues. For arrears beyond the one-year window, consider a recovery suit, as the Delhi High Court allowed in Vasu Bajaj.

Rights of the Paying Spouse

The law also protects the person who must pay. The court can act only on a default “without sufficient cause”. So a paying spouse may show genuine inability, such as job loss or illness, and seek a reduction under Section 146 BNSS. Courts also follow the recovery-first sequence before ordering jail. Moreover, the court should adjust amounts paid under parallel orders. Also read our guide on how courts treat loan EMIs when they fix maintenance.

Frequently Asked Questions

What happens if a husband does not pay maintenance in India?

The court can issue a warrant to recover the dues like a fine. If recovery fails, it can order jail of up to one month per unpaid month.

Is there a time limit to recover maintenance arrears?

Yes. You must apply for a recovery warrant within one year of each due date. Older dues remain recoverable through a civil suit.

Does jail cancel the maintenance arrears?

No. The Supreme Court has held that jail only enforces payment, so the arrears remain payable.

Can I file a civil suit to recover maintenance arrears?

Yes. The Delhi High Court has held that arrears under a final order become a debt that a civil court can decree.

Can I enforce a maintenance order in another city?

Yes. Under Section 147 BNSS, you can enforce it before a Magistrate where the defaulter now lives or works.

Can a court strike off the husband’s defence for non-payment?

Yes. Courts relying on Rajnesh v. Neha strike off the defence of a spouse who wilfully ignores maintenance orders.

Lex Pleaders advises individuals and families on maintenance, divorce and recovery of maintenance arrears in Delhi NCR. Write to us at lexpleadersindia@gmail.com to discuss your matter.

Disclaimer: This article offers general information only and does not constitute legal advice.