If a husband refuses to pay maintenance despite a court order, the legal system provides several mechanisms to enforce the maintenance order. Under Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), as well as similar provisions under earlier laws like Section 125 of the CrPC, the court has the authority to ensure that maintenance is paid to the wife, children, or other dependents entitled to it.
Here’s a detailed explanation of the consequences a husband may face if he refuses to pay maintenance, along with the legal actions that can be taken to enforce the order:
1. Court Action for Recovery of Maintenance
If the husband refuses or fails to pay maintenance as per the court order, the wife (or any other party entitled to maintenance) can apply to the court for enforcement. The court has the power to take various measures to ensure the payment is made. These include:
a) Issuance of a Warrant of Recovery
The court can issue a warrant of recovery to attach the husband’s property or salary to recover the maintenance amount. The steps involved are:
- The court will first notify the husband about his default in paying the maintenance.
- If the husband does not respond or fails to pay, the court can attach his property, bank accounts, or any other assets to recover the due amount.
- If the husband is employed, the court may issue an order to his employer for the attachment of his salary, requiring a portion of the salary to be directly paid to the wife or children.
b) Imprisonment for Default
If the husband still refuses to comply with the maintenance order despite the warrant of recovery, the court can take the more stringent step of ordering his imprisonment. Key details include:
- Imprisonment for Non-Compliance: Under BNSS 2023, the court can order imprisonment for up to one month or until the maintenance amount is paid (whichever is earlier).
- No Permanent Release from Liability: Imprisonment for non-payment of maintenance does not absolve the husband of his obligation to pay. Once released from jail, he is still legally bound to pay the outstanding maintenance arrears.
This serves as a powerful deterrent, compelling the husband to fulfill his obligations to avoid imprisonment.
2. Attachment of Husband’s Property or Assets
a) Attachment of Movable or Immovable Property
If the husband owns property (movable or immovable), the court can order its attachment to recover the arrears of maintenance. This involves:
- Movable Property: The court may seize assets such as vehicles, household goods, or personal belongings.
- Immovable Property: The court can attach real estate owned by the husband, such as land or a house, and auction it to recover the due maintenance amount.
- Sale of Attached Property: If necessary, the court can order the sale of the attached property to recover the arrears.
This step ensures that the wife or children receive the maintenance amount even if the husband refuses to make direct payments.
b) Attachment of Salary or Pension
If the husband is employed or receives a pension, the court can order his employer or the relevant authority to deduct the maintenance amount directly from his salary or pension and pay it to the wife. This process is known as garnishment of wages and involves:
- The employer withholding a specific portion of the husband’s salary (as decided by the court) and directly transferring it to the wife.
- Similar orders can be issued to the pension authority if the husband is a retired individual receiving a pension.
This method ensures a continuous flow of maintenance payments to the wife or children, bypassing any direct involvement of the husband.
3. Arrears of Maintenance and Interest
If the husband has refused to pay maintenance over a period of time, the unpaid amount accumulates as arrears. The wife can file an application to recover the entire arrears, including any interest as determined by the court. Important aspects include:
- Claim for Arrears: The wife can claim arrears for all the unpaid periods, which may include months or years of non-payment.
- Interest on Arrears: In some cases, the court may also grant interest on the arrears, further increasing the amount the husband is liable to pay.
The objective is to ensure that the wife and children do not suffer due to the husband’s default and that the full amount owed is recovered.
4. Legal Consequences of Willful Non-Compliance
a) Contempt of Court
Refusal to pay maintenance despite a court order can lead to contempt of court proceedings against the husband. The court can initiate contempt proceedings under the following circumstances:
- Willful Disobedience: If the husband is found to be deliberately avoiding his obligation to pay maintenance, the court may charge him with contempt.
- Punishment for Contempt: The punishment for contempt of court can include fines or further imprisonment until the husband complies with the maintenance order.
b) Ongoing Obligation Despite Punishment
Even if the husband is punished for contempt or imprisoned for non-payment, his obligation to pay maintenance does not cease. The legal duty to provide financial support remains, and he must still make the payments after serving his sentence.
5. Impact on Husband’s Reputation and Creditworthiness
Refusal to pay maintenance can have serious repercussions for the husband’s social and financial standing:
- Public Record: If the court attaches the husband’s property or salary, it may become a matter of public record, damaging his personal and professional reputation.
- Effect on Credit Score: If the court attaches the husband’s assets or salary, it could negatively impact his creditworthiness, making it difficult for him to secure loans or other financial benefits in the future.
6. Modification of Maintenance Order
If the husband is genuinely unable to pay the maintenance due to a change in his financial circumstances, he can apply to the court for a modification of the maintenance order. The court may reduce the amount or temporarily suspend the payments if it finds that:
- The husband has lost his job or has no income.
- He is facing financial hardship due to circumstances beyond his control.
- He has other dependents, such as elderly parents or additional children, who also require financial support.
However, this is not an excuse for willful refusal to pay. The husband must prove his financial hardship with adequate documentation, and the court will only modify the maintenance order if it is convinced of the genuineness of the husband’s situation.
7. Interim Relief and Maintenance
While the main case of non-payment is being litigated, the wife can apply for interim maintenance. The court may grant this to ensure that the wife and children are not left without financial support during the pendency of the case. The interim relief is a temporary measure but is often crucial to providing immediate support.
8. Relief for Children and Other Dependents
If maintenance is being claimed for children or other dependents, the refusal of the husband to pay can have severe consequences for their well-being. In such cases, the court takes stringent steps to ensure that the maintenance is paid, as the needs of children are given special priority under the law. The husband’s refusal to pay maintenance for children can lead to:
- Enhanced Enforcement: Courts tend to act more swiftly in enforcing maintenance orders when the well-being of children is at stake.
- Serious Penalties: Refusal to provide maintenance for children can lead to more severe penalties for the husband, as the law places greater emphasis on the rights and welfare of children.
9. FAQs on Refusal to Pay Maintenance
Q1. What should the wife do if the husband refuses to pay maintenance?
The wife should immediately file an application in the court for enforcement of the maintenance order. The court can attach the husband’s property, salary, or assets and even imprison him for non-compliance.
Q2. Can the husband be jailed for refusing to pay maintenance?
Yes, the court can order imprisonment for up to one month or until the maintenance arrears are paid if the husband willfully refuses to comply with the maintenance order.
Q3. Can the husband’s salary be garnished for maintenance payments?
Yes, the court can direct the employer to deduct the maintenance amount directly from the husband’s salary and transfer it to the wife.
Q4. Can the wife claim arrears of maintenance?
Yes, the wife can file for recovery of unpaid maintenance (arrears), and the court may also grant interest on the arrears depending on the circumstances.
Q5. Can the maintenance order be modified?
Yes, the husband can apply for modification if he can prove a significant change in his financial circumstances. The court will decide whether to reduce or suspend the maintenance based on the evidence presented.
Conclusion
Refusal to pay maintenance under Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) can lead to serious legal consequences for the husband. The court has the authority to enforce the maintenance order through the attachment of property, salary garnishment, and even imprisonment. In addition, failure to comply with maintenance obligations can damage the husband’s reputation and financial standing. However, if the husband is genuinely unable to pay due to financial hardship, he can request a modification of the maintenance order, but this must be proven in court.
Disclaimer: This information is intended for general guidance only and does not constitute legal advice. Please consult with a qualified lawyer for personalized advice specific to your situation.
Adcocate J.S. Rohilla (Civil & Criminal Lawyer in Indore)
Contact: 88271 22304