Striking Off Defence for Non-Payment of Maintenance in India: Rajnesh v Neha, Family Court Powers & 2026 Law

By Adv. Govind Bali | Fastrack Legal Solutions LLP

Maintenance litigation often reaches a point where the order exists on paper but the money is not paid. The practical question then becomes whether the defaulting spouse can continue to contest the main matrimonial case while ignoring the court’s maintenance or disclosure orders.

This article explains the law on striking off the defence, the Supreme Court’s directions in Rajnesh v. Neha, the distinction between non-payment and non-disclosure, and why courts must separate genuine inability from wilful and contumacious disobedience.

1. What does “striking off the defence” mean?

Striking off the defence means that the respondent loses the right to continue defending the proceeding in the ordinary way because of serious procedural disobedience. Depending on the nature of the case and the order passed, the court may proceed without entertaining the defaulting party’s defence, may close the right to file a reply or affidavit, or may decide the pending application on the basis of the material available from the complying party.

Because the consequence is severe, it must not be used mechanically. The court should ordinarily examine the statutory framework, the conduct of the defaulting party, the opportunities already granted, the nature and duration of the default, and whether a less drastic enforcement mechanism is available.

2. Rajnesh v. Neha: the national maintenance framework

The Supreme Court in Rajnesh v. Neha, Criminal Appeal No. 730 of 2020, judgment dated 4 November 2020, issued a comprehensive framework for maintenance proceedings across India. It standardised financial disclosure through affidavits of assets and liabilities, addressed overlapping maintenance orders, commencement of maintenance, and enforcement.

One important direction concerns deliberate failure to file the disclosure affidavit. The Court stated that a respondent should ordinarily file the reply and disclosure affidavit within the prescribed period, that courts should not grant endless adjournments, and that if delay is wilful and contumacious, the court may consider striking off the defence. If the affidavit is not filed, the court may also proceed to decide maintenance on the basis of the applicant’s affidavit and the pleadings already on record.

Read the Supreme Court judgment: Rajnesh v. Neha.

3. Non-disclosure and non-payment are related, but not identical

Two recurring defaults must be separated:

A lawyer should therefore identify the precise order breached before choosing the remedy.

4. Can a defence be struck off for non-payment under Section 24 HMA?

Section 24 of the Hindu Marriage Act is intended to prevent a financially weaker spouse from being unable to prosecute or defend matrimonial proceedings for want of funds. Courts have therefore treated persistent non-payment of maintenance pendente lite and litigation expenses seriously.

In Rajnesh v. Neha, the Supreme Court surveyed decisions where courts had struck off the defence for non-payment. It referred, among others, to Kaushalya v. Mukesh Jain and High Court decisions recognising that execution alone may not always prevent the main proceeding from being used unfairly by a party who refuses to comply with an interim maintenance order.

At the same time, the Supreme Court also noted contrary authority in proceedings under the old Section 125 CrPC where High Courts held that the statute already provides a recovery mechanism and does not expressly confer a striking-off power. The result is important: the remedy must be matched to the statute and forum.

5. Section 28A HMA and execution remain available

Section 28A of the Hindu Marriage Act provides for enforcement of decrees and orders made by the court in proceedings under the Act in the same manner as decrees and orders of the court in exercise of its original civil jurisdiction. Therefore, striking off defence is not the only possible remedy for HMA maintenance default.

The claimant may also pursue execution measures available for a money decree, subject to applicable procedural law. The existence of execution does not necessarily answer whether a Family Court may also impose procedural consequences for deliberate defiance, but it remains a central enforcement route.

See our detailed guide: Maintenance Arrears Recovery in India.

6. What about Section 144 BNSS / old Section 125 CrPC?

Maintenance under Section 144 of the Bharatiya Nagarik Suraksha Sanhita has a distinct statutory enforcement structure. Courts should not casually import every civil matrimonial sanction into summary maintenance proceedings without considering the specific statute.

The old Section 125(3) CrPC contained a coercive recovery mechanism; the BNSS continues a statutory framework for enforcing maintenance orders. The Supreme Court’s discussion in Rajnesh records that some High Courts declined to recognise an inherent power to strike off defence in old Section 125 proceedings precisely because the Code contained its own recovery mechanism.

Accordingly, a pleading that simply says “maintenance is unpaid, therefore defence must be struck off” may be legally incomplete. It should identify the source of jurisdiction, the nature of the proceeding, the particular default and the authority relied upon.

7. Domestic Violence Act: monetary relief and direct employer/debtor payment

Section 20 of the Protection of Women from Domestic Violence Act permits monetary relief and specifically addresses non-payment. Under Section 20(6), on failure to pay monetary relief, the Magistrate may direct the employer or a debtor of the respondent to directly pay the aggrieved person or deposit with the court a portion of wages, salary or debt due to the respondent.

This statutory mechanism can be far more practical than seeking only a punitive order. In a salaried case, obtaining a properly framed direction to the employer may secure continuing compliance.

8. 2026 Karnataka High Court: wilful refusal to disclose finances

In A.P. Praveen v. Vindya C. Praveen, decided on 9 January 2026, the Karnataka High Court applied the Rajnesh v. Neha disclosure directions where a party was deliberately refusing to file the mandated financial affidavit. The Court emphasised the Supreme Court’s direction that if the conduct is wilful and contumacious, striking off defence may be considered.

The practical lesson is that financial disclosure is no longer a casual formality. Repeated evasion can itself affect procedural rights.

9. 2026 Delhi proceedings: maintenance orders must be obeyed while challenged properly

In Hanish Kumar v. Kiran & Anr., an order dated 6 May 2026 of the Delhi High Court noted that multiple execution petitions were pending and that the maintenance order had not been challenged while maintenance to the wife and minor son remained unpaid. The order illustrates a recurring problem: a party cannot safely treat a subsisting maintenance order as optional merely because enforcement is inconvenient.

If an order is legally incorrect, the proper course is ordinarily to seek modification, appeal, revision or stay through the legally available route. Until stayed or modified, deliberate non-compliance can create escalating enforcement consequences.

10. When is striking off defence most likely to be considered?

The following factors may strengthen an application:

• a clear and operative maintenance or disclosure order;
• proof of service or knowledge of the order;
• repeated defaults over a substantial period;
• multiple opportunities already granted;
• failure to disclose bank/income information despite directions;
• conduct suggesting deliberate obstruction rather than genuine inability;
• continued prosecution of the main matrimonial case while refusing the financial direction;
• no meaningful application seeking variation of an allegedly unaffordable order;
• false or inconsistent financial statements;
• non-compliance even after appellate or revisional directions.

11. When should the court be cautious?

Striking off defence is a drastic consequence. Courts should be cautious where:

• the order is ambiguous;
• arrears are genuinely disputed because of adjustment or overlapping maintenance;
• the payer has filed a bona fide modification application after a material change in circumstances;
• part payment has been made and a structured payment proposal is before the court;
• the legal power to strike off defence under the particular statute is doubtful;
• the default is short, accidental or adequately explained;
• the sanction would effectively decide substantive rights without proportionate justification.

12. Execution and striking off defence can serve different purposes

Execution seeks recovery. Striking off defence is a procedural sanction. A maintenance claimant may need one, the other, or both depending on the statutory context and the court’s powers.

For example, attachment may recover arrears but does not necessarily cure repeated evasion in the main case. Conversely, striking off defence without a practical recovery mechanism may not put money in the hands of the dependent spouse. Effective litigation therefore asks two questions:

1. How do we recover the existing arrears?
2. How do we prevent continued procedural abuse?

13. What evidence should accompany a striking-off application?

A well-prepared application should not merely assert “wilful default.” It should ordinarily annex or identify:

• the maintenance/disclosure order;
• proof of the amount due month-by-month;
• payments actually received;
• bank statements demonstrating non-payment;
• earlier execution orders;
• previous warnings or opportunities granted by the court;
• the respondent’s disclosure affidavit, if inconsistent;
• evidence of salary/business receipts where deliberate evasion is alleged;
• orders on any appeal/revision/stay application;
• a concise arrears calculation.

For financial-document strategy, see How to Obtain a Spouse’s Financial Documents in Maintenance Cases.

14. Can the respondent ask for restoration of the defence?

Depending on the nature of the order and procedural framework, a party against whom defence has been struck off may seek recall, restoration, appeal, revision or supervisory relief. The prospects will turn on jurisdiction, the reason for default, subsequent compliance, prejudice to the other side and the language of the impugned order.

Prompt compliance is important. A party who seeks indulgence only after months or years of deliberate default may face a significantly harder case.

15. Can the payer seek reduction instead of defaulting?

Yes. If income has genuinely fallen, employment has ended, medical circumstances have changed, or another material development has occurred, the safer legal course is to seek variation/modification rather than simply stop paying.

See: How to Increase, Reduce or Modify Maintenance in India.

16. What if there are multiple maintenance orders?

Where maintenance is awarded under more than one statute, the Supreme Court in Rajnesh v. Neha requires disclosure of earlier orders and appropriate adjustment/set-off to avoid double recovery. Before alleging wilful default, the correct net liability should therefore be calculated.

See: Multiple Maintenance Orders in India: Set-Off & Adjustment.

17. Practical applicant strategy

1. Prepare a month-wise arrears chart.
2. Identify the statute under which maintenance was granted.
3. Check whether any stay or modification order exists.
4. Separate non-disclosure from non-payment.
5. Seek specific recovery measures, not vague “coercive action.”
6. If striking off defence is sought, plead wilful and contumacious conduct with dates.
7. Request time-bound future compliance.
8. Where salary is known, consider attachment/employer directions.
9. Where income is concealed, seek targeted financial production.
10. Keep the main matrimonial trial moving.

18. Practical respondent strategy

1. Do not ignore the order.
2. File the mandated financial affidavit accurately and on time.
3. If the amount is unaffordable because circumstances changed, seek modification immediately.
4. Pay the undisputed amount while contesting the balance where legally appropriate.
5. Disclose overlapping maintenance orders and seek adjustment.
6. File a realistic arrears-clearing proposal.
7. Do not conceal salary, business receipts or assets.
8. Seek stay from the competent appellate/revisional court if the order is challenged.

19. Frequently Asked Questions

Can a Family Court automatically strike off a husband’s defence for one missed payment?

No automatic rule applies. The court must consider the statute, nature of default, opportunities granted and whether the conduct is wilful.

Can defence be struck off for not filing the Rajnesh v Neha affidavit?

The Supreme Court expressly contemplated striking off defence where delay in filing the reply and disclosure affidavit is wilful and contumacious after repeated opportunities.

Is execution still available if defence is struck off?

Potentially yes. Striking off defence and recovery serve different purposes, subject to the statutory framework.

Can maintenance be recovered from salary?

Depending on the proceeding and order, salary attachment or direct employer directions may be available. Section 20(6) DV Act expressly permits employer/debtor directions in appropriate cases.

Can I stop paying because I have filed an appeal?

Filing a challenge does not automatically stay the order. A specific stay or modification should be sought from the competent court.

20. Key takeaway

The strongest legal position is not “every maintenance default means the defence must be struck off.” The better formulation is:

A court may impose serious procedural consequences where maintenance or financial-disclosure orders are deliberately and persistently disobeyed, but the remedy must be grounded in the correct statute, the court’s jurisdiction and proved wilful conduct.

Primary/statutory references: Hindu Marriage Act, 1955; Protection of Women from Domestic Violence Act, 2005; Bharatiya Nagarik Suraksha Sanhita, 2023; Rajnesh v. Neha.

Disclaimer: This article is for legal information and professional education. The correct remedy depends on the statute, nature of the maintenance order, forum, facts and subsequent appellate orders. It is not case-specific legal advice or an assurance of outcome.