Maintenance law exists to stop people from being left destitute by those who are legally bound to support them. Since 1 July 2024, the provision previously known as Section 125 of the Code of Criminal Procedure appears as Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). The substance is largely the same, and the earlier case law still guides courts.

Who can claim

A person with sufficient means who neglects or refuses to maintain any of the following can be ordered to pay a monthly allowance:

  • a wife who cannot maintain herself. "Wife" includes a divorced woman who has not remarried;
  • a minor child, legitimate or illegitimate, whether married or not (for a married minor daughter, until she marries, if her husband lacks means);
  • an adult child who, because of a physical or mental abnormality or injury, cannot maintain themselves;
  • a father or mother who cannot maintain themselves.

The remedy is secular. It applies whatever the parties' religion.

When a wife is not entitled

The statute bars maintenance to a wife who:

  • is living in adultery;
  • refuses to live with her husband without sufficient reason; or
  • is living separately by mutual consent.

"Sufficient reason" is interpreted generously. Cruelty, harassment or the husband taking another wife can all justify living apart.

"Unable to maintain herself"

Courts look at whether the wife can maintain herself at the standard of living she had in the matrimonial home, not merely whether she survives. An educated wife is not automatically disqualified. The question is whether she actually has an income adequate to that standard. The husband's claim that he has no income is also weighed against his qualifications, earning capacity and lifestyle.

The disclosure affidavit

In Rajnesh v. Neha (2020), the Supreme Court made it compulsory for both parties in every maintenance proceeding to file an affidavit disclosing their assets and liabilities in a prescribed format. The Court also held that:

  • maintenance should normally be awarded from the date of the application;
  • where claims are made under several laws (for example the Hindu Marriage Act, the Domestic Violence Act and Section 144 BNSS), the court must take earlier awards into account so that the same person is not paid twice;
  • the amount must be fair, considering the status of the parties, reasonable needs and the payer's liabilities.

Interim maintenance

The court can order a monthly allowance for interim maintenance and litigation expenses while the case is pending. The law requires such applications to be decided, as far as possible, within 60 days of notice to the respondent. There is no statutory upper limit on the amount.

Where to file

The application can be filed before the Magistrate (in practice, often the Family Court) where the respondent lives, where the applicant lives, or where the parties last lived together. This lets a wife who has moved back to her parents' town file there.

Enforcement

If the payer does not comply without sufficient cause, the court can:

  • issue a warrant to recover the amount as if it were a fine, including by attaching property or salary; and
  • sentence the defaulter to imprisonment for up to one month for each month's allowance that remains unpaid, or until payment, whichever is earlier.

A recovery application must be made within one year of the date the amount became due, so arrears should not be left to accumulate.

Changing the amount

Either party can apply to change the order if circumstances change, for example a rise in the payer's salary, loss of employment, or the children's needs increasing as they grow older.

Other routes to maintenance

Section 144 BNSS is one of several remedies:

  • Section 24, Hindu Marriage Act: maintenance and litigation costs while a matrimonial case is pending;
  • Section 25, Hindu Marriage Act: permanent alimony on or after a decree;
  • Section 18, Hindu Adoptions and Maintenance Act: a Hindu wife's right to maintenance during the marriage;
  • Section 20, Protection of Women from Domestic Violence Act, 2005: monetary relief to an aggrieved woman;
  • Maintenance and Welfare of Parents and Senior Citizens Act, 2007: a separate tribunal route for senior citizens.

Which route to use, or which combination, depends on the facts and the stage of any other proceedings.

Key takeaways

  • Section 144 BNSS has replaced Section 125 CrPC, with the same substantive rights.
  • Both sides must file a sworn disclosure of assets and liabilities.
  • Interim maintenance should ordinarily be decided within 60 days.
  • Unpaid maintenance must be pursued within one year of falling due.