If your husband is not paying maintenance to you or your child despite a court order or mutual agreement, there are several legal remedies available to ensure that you receive the financial support you are entitled to. In India, maintenance is governed by various laws, including Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) The Hindu Marriage Act, 1955, The Protection of Women from Domestic Violence Act, 2005, and The Hindu Adoption and Maintenance Act, 1956.
Steps to Take if Your Husband is Not Paying Maintenance
1. File a Petition for Execution of the Maintenance Order
If a court has already passed an order for maintenance under Section 144 BNSS or under other relevant personal laws, but your husband fails to comply, you can file an execution petition in the same court. The court can enforce its maintenance order by:
- Issuing a warrant for recovery of the amount due.
- Attaching his property or assets to recover the dues.
- Issuing a warrant for his arrest, if he continues to willfully ignore the court’s order.
2. Filing a Contempt Petition
If your husband refuses to comply with the court’s order, you can file a contempt petition against him under the Contempt of Courts Act, 1971. Contempt of court proceedings can lead to penalties, including fines or imprisonment, as failure to pay maintenance after a court order is considered a violation of the legal process.
3. Filing a Fresh Application Under Domestic Violence Act
If your husband is not paying maintenance or causing financial abuse, you can file an application under the Protection of Women from Domestic Violence Act, 2005. The act allows for relief in the form of maintenance, residence orders, and protection orders. You can seek not only monetary relief but also other forms of compensation.
4. Seeking Interim Maintenance
If the divorce proceedings or maintenance proceedings are still ongoing and your husband is not providing financial support, you can apply for interim maintenance under Section 24 of the Hindu Marriage Act, 1955 (if you are a Hindu) or other relevant personal laws. Interim maintenance ensures that you receive financial support during the pendency of the proceedings.
5. Appeal to a Higher Court
If the maintenance amount ordered is insufficient or if the court rejects your maintenance plea, you can appeal to a higher court for revision or modification of the order. Higher courts can increase the maintenance amount or enforce stricter measures for recovery.
6. Filing for Revision of Maintenance Amount
If your husband’s financial situation improves or the cost of living increases, you can file for a revision of the maintenance amount. Similarly, if he deliberately reduces his income to avoid paying maintenance, you can provide evidence of his earning potential and seek a higher amount.
7. Claiming Child Maintenance
Child maintenance is a legal right under Section 144 BNSS, and if your husband is not paying for the child’s upbringing, you can file a case in court for recovery. Courts prioritize child welfare and can take strict action to enforce the payment of child support, including property attachment, salary garnishment, or even imprisonment.
8. Approaching Police or Women’s Helpline
If you are facing financial or emotional harassment along with non-payment of maintenance, you can approach the police or women’s helpline for help. You may also file a complaint under Section 85 (BNS) if there is cruelty involved, although this section typically relates to domestic abuse and harassment.
Frequently Asked Questions (FAQs)
1. What legal recourse can I take if my husband is not paying maintenance?
You can file an execution petition in court to enforce the maintenance order, seek contempt of court proceedings, or file a complaint under the Domestic Violence Act. The court may also attach your husband’s property or order his arrest for non-compliance.
2. Can my husband be jailed for not paying maintenance?
Yes, under Section 144 (3) BNSS, if your husband refuses to pay maintenance despite the court’s order, the court can issue a warrant for his arrest and may sentence him to imprisonment for up to one month, or until the payment is made.
3. What can I do if my husband reduces his income to avoid paying maintenance?
If your husband deliberately reduces his income or quits his job to avoid paying maintenance, you can provide evidence of his actual earning potential in court. The court may order maintenance based on his potential income, lifestyle, and ability to earn.
4. Can I claim maintenance for my child separately if my husband is not paying?
Yes, child maintenance is considered separately under Section 144 BNSS. You can file a petition specifically for child maintenance. Courts generally prioritize the welfare of the child and ensure strict enforcement of child support payments.
5. Is there a time limit for claiming unpaid maintenance?
Yes, there is a limitation period of 12 months for claiming arrears of maintenance under Section 144 BNSS. If your husband has not paid maintenance for more than 12 months, you can only recover arrears for the last 12 months.
6. Can I claim maintenance if I am earning?
Yes, even if you are earning, you can claim maintenance if your income is insufficient to maintain the standard of living you enjoyed during your marriage. The court considers various factors, including your income, your husband’s income, and the lifestyle you were accustomed to before deciding the maintenance amount.
7. Can the maintenance amount be revised?
Yes, the maintenance amount can be revised. If your husband’s financial situation improves or the cost of living increases, you can file a petition in court to increase the maintenance amount. Similarly, if your financial situation improves, your husband can file a petition to reduce the amount.
8. What should I do if my husband refuses to pay child support?
If your husband is not paying child support, you can file a separate petition under Section 144 BNSS for the enforcement of child maintenance. The court may take stricter measures, such as property attachment, salary garnishment, or imprisonment.
Conclusion
If your husband is not paying maintenance to you or your child, there are strong legal remedies to ensure enforcement of maintenance orders. From filing execution petitions and contempt of court applications to seeking child maintenance separately, the law provides robust protection for individuals facing non-payment. Courts in India take maintenance issues seriously, especially when child support is involved, and provide effective tools for recovery of unpaid maintenance. It is advisable to consult a lawyer to understand the most suitable legal remedy based on your specific situation.
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.
Advocate J.S. Rohilla (Civil & Criminal Lawyer in Indore)
Contact: 88271 22304