How To Defend An Execution Petition Filed For Maintenance Arrears: Husband's Legal Guide 2026

NEW DELHI: Maintenance Order Passed. Execution Filed. What Can A Husband Still Do?

An execution petition is not a second trial of the maintenance case.

If maintenance has already been ordered and there is no stay, merely repeating that the original order was unfair will usually get you nowhere. The defence must attack what remains legally open: wrong calculations, payments already made, overlapping maintenance, limitation applicable to the recovery mechanism, change of circumstances, and illegal coercive steps.

The Supreme Court in Rajnesh v. Neha, (2021) 2 SCC 324, laid down a nationwide framework for enforcement of maintenance orders and recognised enforcement under the HMA, DV Act and CrPC framework, including execution as a civil money decree through the CPC where applicable.

FIRST IDENTIFY WHICH MAINTENANCE ORDER IS BEING EXECUTED

Section 28A HMA expressly provides that orders under the Hindu Marriage Act are enforced like orders of a civil court. Section 20(6) DV Act additionally permits the Magistrate, on non-payment, to direct an employer or debtor of the respondent to pay or deposit money towards the monetary relief.

For older proceedings, do not mechanically replace every reference to Section 125 CrPC with Section 144 BNSS. Section 531 BNSS preserves specified applications, appeals, trials, inquiries and investigations that were pending when BNSS came into force on 1 July 2024.

7 LEGAL DEFENCES A HUSBAND SHOULD EXAMINE IMMEDIATELY

1. Challenge the arrear calculation month by month.
   Never accept the decree-holder's total merely because it appears in an execution petition. Prepare a month-wise statement showing the amount ordered, due date, amount actually paid, mode of payment and balance, if any. Attach bank statements, UPI entries, receipts, court deposits and payment orders. In Bijoy Chettri v. Sunita Chettri, SLP(C) Nos. 35623-35624/2025, decided on 12 January 2026, the Supreme Court specifically said that a payer claiming payments had been ignored could submit his own calculation, indicate amounts already paid and establish whether anything was actually due.
2. Demand credit for maintenance already paid under another proceeding.
   A wife may invoke more than one maintenance statute, but the Supreme Court in Rajnesh v. Neha made it clear that previous maintenance orders must be disclosed and adjustment or set-off has to be considered so that the husband is not simply made to pay independent overlapping awards without accounting for the earlier relief. Do not assume every subsequent order automatically replaces an earlier one. Read the operative portions carefully and calculate the legally payable differential.
3. Use the one-year proviso correctly. Do not misunderstand it.
   Section 144(3) BNSS provides that no warrant for recovery under that provision shall issue unless an application to levy the amount is made within one year from the date it became due.
   But this does not mean every maintenance arrear older than one year disappears. In Poongodi v. Thangavel, (2013) 10 SCC 618, the Supreme Court held that the corresponding proviso under Section 125(3) CrPC restricted that particular recovery procedure; it did not extinguish the underlying entitlement to maintenance. The Court also treated the application before it as a continuation concerning subsequent defaults.
4. Challenge mechanical arrest or civil imprisonment.
   Where the court is proceeding through the CPC money-decree route, a husband cannot be mechanically sent to civil prison merely because an amount is outstanding. Section 51 CPC and Order XXI safeguards require the statutory conditions for detention to be satisfied. The Supreme Court in Jolly George Varghese v. Bank of Cochin, (1980) 2 SCC 360, distinguished genuine inability to pay from refusal despite having means.
   This became very real in Delhi in 2026. In Jai Kishor v. Santosh, Criminal Revision No. 41/2026, the husband appeared, received the execution papers and his counsel told the court that he was not sure of the outstanding amount and would file objections. He was nevertheless sent to civil prison for 30 days that very day. The Sessions Court set the detention aside because the required show-cause opportunity and findings regarding means and intentional refusal had not been recorded.
5. If you genuinely cannot pay, prove it. Saying “I have no money” is not evidence.
   Section 144(3) BNSS itself uses the expression failure “without sufficient cause.” A genuine defence must therefore be documented. Job termination records, salary reduction, bank statements, ITRs, business losses, medical expenses and other reliable financial records matter far more than oral claims.
   In Aman Khan v. Mehnaz, decided on 1 August 2026, the Delhi Sessions Court dealt with a husband who had remained in civil imprisonment for more than five months in DV maintenance execution. The further detention order was set aside after the court found that the CPC safeguards, including the necessary satisfaction regarding means and wilful refusal, had not been followed.
6. An appeal or revision is not a stay order.
   One of the most dangerous mistakes husbands make is believing that once the maintenance order has been challenged, payment automatically stops. It does not. The Delhi High Court in Rangesh Srinivasan v. Madhulika Bawa reiterated that the pendency of an appeal or revision does not by itself operate as a stay of the maintenance order. Get an express stay or other protective order from the competent court.
7. Changed circumstances require modification proceedings, not wishful thinking in execution.
   If income has genuinely collapsed, circumstances have materially changed or another statutory ground now exists, invoke the provision applicable to the original order. Section 146 BNSS permits alteration of a Section 144 allowance upon proof of changed circumstances. Section 25(2) HMA permits variation, modification or rescission of permanent alimony where circumstances change. Section 25(2) DV Act similarly empowers the Magistrate to alter, modify or revoke an order upon changed circumstances.

A DEFENCE THAT WILL USUALLY FAIL

Do not file an objection saying a DV maintenance order cannot be executed through CPC merely because the original proceeding was before a Magistrate.

The Karnataka High Court rejected substantially that argument in M. Agastya Raju v. M. Swapana Bharathi, 2026:KHC-K:1309, decided on 10 February 2026. Relying on Rajnesh v. Neha, the Court upheld the maintainability of the execution petition.

A husband should challenge what is legally defective, not waste time on an objection already answered by binding Supreme Court law.

JAIL DOES NOT CANCEL MAINTENANCE ARREARS

Another dangerous myth is:

“If I go to jail, the arrears are over.”

Wrong.

In Kuldip Kaur v. Surinder Singh, (1989) 1 SCC 405, the Supreme Court held that imprisonment is a mode of enforcement, not satisfaction of the monetary liability. The arrears are discharged by payment, not simply by undergoing custody.

Under Section 144(3) BNSS, where its statutory recovery mechanism applies, a Magistrate may after the warrant process impose imprisonment extending up to one month for the unpaid monthly allowance covered by the breach.

WHAT SHOULD YOU FILE WITH YOUR EXECUTION OBJECTIONS?

Your objections should be built around documents, not emotion: the original maintenance order, execution petition, a month-wise arrear chart, proof of every payment, copies of all parallel maintenance orders, proof of amounts paid in those proceedings, any stay order, and reliable evidence of a subsequent financial change.

In execution proceedings, arithmetic can sometimes save a husband faster than arguments.

The Supreme Court's January 2026 order in Bijoy Chettri makes that practical lesson impossible to ignore. If the claimed arrears are wrong, prove exactly why they are wrong.

SHONEE KAPOOR'S TAKE

Maintenance execution is where casual litigation becomes expensive.

Do not disappear. Do not assume your appeal has stayed the order. Do not make undocumented cash payments. Do not walk into court without knowing the exact arrears claimed against you.

If ₹10 lakh is claimed and ₹4 lakh has already been paid, your defence is not “I have paid something.” Your defence is a ₹4 lakh paper trail.

Fight the calculation with calculation. Fight overlapping orders with the record. Fight illegal coercion with procedure. And if the original maintenance amount has become impossible because circumstances genuinely changed, challenge or modify the order through the correct legal proceeding before arrears keep multiplying.

FAQ’S

1. Can a husband be jailed for not paying maintenance arrears?

Yes, subject to the applicable statute and mandatory procedure. Section 144(3) BNSS contains its own warrant and imprisonment mechanism, while civil money-decree detention attracts CPC safeguards.

2. Are maintenance arrears older than one year automatically cancelled?

No. The one-year proviso in Section 144(3) concerns issuance of a warrant under that recovery mechanism. The Supreme Court in Poongodi held that the corresponding CrPC proviso did not extinguish the underlying maintenance entitlement.

3. Can maintenance paid in another case be adjusted?

Yes, where overlapping awards require adjustment or set-off. Rajnesh v. Neha requires disclosure and consideration of earlier maintenance awards.

4. Does filing an appeal automatically stop maintenance execution?

No. Unless the competent court grants a stay or other protective order, merely filing an appeal or revision does not suspend the maintenance order.

5. Can a husband dispute the amount claimed in an execution petition?

Yes. He can dispute the calculation, prove payments already made and raise legally permissible execution objections. In January 2026, the Supreme Court expressly permitted the payer to submit his own calculation and payment details to establish what, if anything, remained due.