Ch 4-2. What happens if husband doesn’t pay maintenance?

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I would in general advise anyone against the strategy of not paying maintenance and waiting to see what happens. It may be fine only in case to case basis where for some reason the court passed an order of maintenance much higher than one's income. But keeping this option as main strategy is not advisable since as per law, the maintenance amount will keep on accumulating, and one day that amount in arrears will have to be paid lumpsum.

Also, many men feel righteous about the fact that wife has left with no reason at all and the allegations are false. So they think that they will not pay the ordered maintenance in interim order, and will appeal against it. The problem is that even when the matter comes up for appeal or revision, the courts will always insist on paying at least part of the pending arrears amount, say 50%, before the appeal can be taken up. So to get benefit of lower maintenance after appeal, you have to pay up the ordered maintenance amounts In arrears, at least partially.

Is this kind of negotiation before taking up husband's appeal exactly within the parameters of legal process? I am not 100% sure, but my general sense is that this has become an accepted process within the courts, so it's more in the realm of 'tradition' than law. Usually husband's own lawyer will know about the impending problem very well, but he/she may not warn him in time. Advocates also operate from different perspective, and probably they think that convincing the husband may not work anyway. So they wait for the day when appeal comes up for hearing and that's when husband gets to know the 'news' that he has to clear up pending dues before his application will be taken up! That's how the system works. But as far as I know, I don't think this is an accepted position in law. If such a provision was allowed, an unjust order could be made and one will have to pay up first before his appeal against an unjust order will get heard. That will subvert easily the process of justice, and can lead to lot of corruption in judiciary too.

Fine levy warrant if husband doesn't pay maintenance

Previously, we had seen during analysis of CrPC 125 bare act that a fine levy warrant can be issues against husband if there is a maintenance order and he does not pay. It is reproduced again below:

(3) If any Person so ordered fails without sufficient cause to comply with the order, any such 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 such person, for the whole, or any part of each month's allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case be, remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:

Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the court to levy such amount within a period of one year from the date on which it became due:

The process followed by courts to recover dues from husband is given as per CrPC Section 421 which details the process to recover dues from an offender.

421. Warrant for levy of fine.

(1) When an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may-

(a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender;

(b) issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter: Provided that, if the sentence directs that in default of payment of the fine, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless, for special reasons to be recorded in writing, it considers it necessary so to do, or unless it has made an order for the payment of expenses or compensation out of the fine under section 357.

(2) The State Government may make rules regulating the manner In which warrants under clause (a) of sub- section (1) are to be executed, and for the summary determination of any claims made by any person other than the offender in respect of any property attached in execution of such warrant.

(3) Where the Court issues a warrant to the Collector under clause (b) of sub- section (1), the Collector shall realise the amount in accordance with the law relating to recovery of arrears of land revenue, as if such warrant were a certificate issued under such law: Provided that no such warrant shall be executed by the arrest or detention in prison of the offender.

Basically, the important points are as follows:

Even if husband doesn't have income, his movable property is liable to be attached and sold to recover the maintenance dues. This could mean your car or motorcycle could be taken away and sold to pay off maintenance. I have seen one case where husband had a FLW issued against him, but even for him it didn't come to this that his stuff was taken away by anyone. He kept on paying small amounts of maintenance every month whatever he could afford as per his income and expenses, and that's the stand he took in front of judge.
Clause 1(b) doesn't preclude the possibility of husband's imprisonment because CrPC 125 says that person can be jailed for 1 month for not paying maintenance. But again, such situations have not been seen in real life cases, so to discuss them in gory detail will not serve much purpose. If I do come across fine levy warrant cases, I will surely update this section based on the new findings.
Clause (3) says that a Collector has power to recover the dues, but even then the collector does not have power to get the person arrested or order his detention in prison for the purpose of execution of the warrant.

Format of warrant in case one doesn't pay maintenance

In case you don't pay maintenance for many months, a warrant may be issued against you. The prescribed format of the warrant is given in second schedule of CrPC as given below:

From CrPC Schedule 2 - The Second Schedule

Form 19. Warrant to enforce the payment of maintenance by Attachment and Sale

To ... (name and designation of the Police Officer or other person to execute the warrant).

WHEREAS an order has been duly made requiring ... (name) to allow to his said wife (or child or father or mother) for maintenance the monthly sum of rupees ... and whereas the said ... (name) in wilful disregard of the said order has failed to pay rupees ..., being the amount of the allowance for the month (or months) of ...

This is to authorise and require you to attach any movable property belonging to the said ... (name) which may be found within the district of ... and of within ... (state the number of days or hours allowed) next after such attachment the said sum shall not be paid (or forthwith), to sell the movable property attached, or so much thereof what you have done under it, immediately upon its execution.

Dated, this ... day of ..., 20 ...

(Seal of the Court)

(Signature)

Having gone through CrPC 125 and its various clauses, now we have some basic understanding of how and why maintenance may get awarded. With regards to amount of maintenance that may be awarded, we haven't discussed in detail yet. We will cover it in later chapters including giving references to judgments.

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Fine levy warrant if husband doesn't pay maintenance

Format of warrant in case one doesn't pay maintenance

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