Matrimonial Law · Maintenance
Maintenance Under Section 144 BNSS: What Courts Actually Consider
Maintenance is usually the first order sought in a marital breakdown and the one that matters most while the case is pending. Section 144 of the BNSS, which replaced Section 125 of the CrPC, is the quickest route to it. This note explains who may claim, what the court looks at, and how an order is enforced.
The Law
What Section 144 provides, and who can claim
Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 allows a Magistrate to order a person who has sufficient means, and who neglects or refuses to maintain, to pay a monthly allowance to certain dependants. It re-enacts Section 125 of the Code of Criminal Procedure, 1973, and the Supreme Court's decisions on that section continue to guide how courts apply it.
Four classes of person may claim: a wife who is unable to maintain herself, which includes a divorced wife who has not remarried; a minor child, legitimate or illegitimate; an adult child who cannot maintain themselves because of a physical or mental abnormality or injury; and a father or mother who cannot maintain themselves. The remedy is secular. It applies whatever the religion of the parties, and in Mohd. Abdul Samad v. State of Telangana (2024) the Supreme Court confirmed that a divorced Muslim woman may use it.
A wife loses the right to an allowance if she is living in adultery, refuses without sufficient reason to live with her husband, or they are living separately by mutual consent. These are matters of proof. A husband who raises them carries the burden of establishing them.
Filing
The petition, the forum and interim maintenance
In Delhi, maintenance petitions are heard by the Family Courts, which have jurisdiction over proceedings of this kind under the Family Courts Act, 1984. The petition may be filed where the respondent lives, where the claimant lives, or where the parties last lived together. Which district court that means depends on the addresses, and we confirm it before filing.
Interim maintenance is the practical centre of the case. The Magistrate may order a monthly allowance and the expenses of the proceedings while the petition is pending, and the statute directs that an application for interim maintenance be disposed of, as far as possible, within sixty days of service of notice on the other side. In practice the date depends on the court's list and on whether both sides have filed their affidavits.
The final allowance is payable from the date of the order or, if the court so directs, from the date of the application. Following Rajnesh v. Neha (2020), the Supreme Court has said that maintenance should ordinarily run from the date of the application, so claimants should not delay filing.
The Affidavit
Disclosure after Rajnesh v. Neha
Rajnesh v. Neha laid down that both parties file an affidavit of assets, income, liabilities and expenditure, in a format the Supreme Court annexed to its judgment. The affidavit must also disclose any earlier maintenance order or pending proceeding between the parties, in any forum.
Courts read these affidavits closely. A claimant who understates her needs weakens her own case, and a respondent who understates his income will usually be met with bank statements, tax returns, property records and the standard of living shown in the marriage. Where an affidavit is found to be false, the court may draw an adverse inference and may take action for the false statement.
Quantum
How the amount is actually fixed
There is no statutory formula and no fixed fraction of income. The old ceiling on the allowance was removed years ago, so the court fixes a figure on the facts. Among the matters Rajnesh v. Neha lists are the status and needs of the parties, the claimant's qualifications and earning capacity, her independent income and assets, the standard of living in the matrimonial home, the respondent's other obligations, and the reasonable cost of litigation. The reasonable expenses of a non-working wife, including those of a child living with her, are part of the calculation.
Two points recur. First, being able to earn is not the same as earning. A court will look at whether a qualified spouse has deliberately stayed out of work, and will not treat an able-bodied respondent's claimed unemployment as a defence without proof. Second, the figure may be revised later. If either party's circumstances change materially, the order can be altered on application.
Maintenance sits alongside the other reliefs in a matrimonial dispute. Interim maintenance may also be sought during a divorce under the Hindu Marriage Act, and monetary relief under the Domestic Violence Act. Where cruelty is alleged, the same facts may also support a complaint of the kind we discuss on our 498A page. The amounts are adjusted against each other, as described in the questions below.
Enforcement
When the order is not obeyed
A maintenance order is enforceable. If the allowance is not paid, the Magistrate may issue a warrant to levy the arrears and may sentence the defaulter to imprisonment of up to one month for each month's allowance left unpaid, or until payment if sooner made. The application to levy arrears must be made within one year from the date the amount fell due, so it should be filed promptly and not once the arrears have grown.
An order can also be challenged. A respondent may seek its alteration or cancellation on a change of circumstances, and a party aggrieved by the order may approach the High Court in revision. Where the parties later settle everything, as in a divorce by consent, the settlement should state expressly what happens to the existing order. Our note on mutual consent divorce covers how those terms are recorded.
Questions
Frequently asked
- Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023. The provision on maintenance of wives, children and parents carries over from Section 125 of the Code of Criminal Procedure, 1973, and the decisions of the Supreme Court on Section 125 continue to guide courts applying Section 144. For proceedings begun before the BNSS came into force on 1 July 2024, the question of which code applies is answered by its savings provisions, and we check that on the facts of each case.
- A wife who is unable to maintain herself, including a divorced wife who has not remarried; a minor child, legitimate or illegitimate, who is unable to maintain themselves; an adult child unable to maintain themselves because of a physical or mental abnormality or injury; and a father or mother who is unable to maintain themselves. The person from whom maintenance is claimed must have sufficient means and must have neglected or refused to maintain.
- Yes. In Mohd. Abdul Samad v. State of Telangana (2024), the Supreme Court held that a divorced Muslim woman may claim maintenance under Section 125 of the CrPC, whatever her personal law, and that the Muslim Women (Protection of Rights on Divorce) Act, 1986 does not displace that remedy. The same reasoning applies to Section 144 BNSS, which re-enacts the provision.
- Not automatically. The test is whether she is able to maintain herself, which courts read as being able to live at a standard reasonably comparable to the one she had in the matrimonial home, not merely to survive. A modest income is taken into account in fixing the amount rather than treated as a bar. An able-bodied husband also cannot avoid the order by pleading unemployment without showing a real inability to earn.
- The Magistrate may issue a warrant to levy the arrears, and may sentence the defaulter to imprisonment for up to one month for each month's allowance left unpaid, or until payment if sooner made. An application to levy arrears must be made within one year from the date the amount fell due, so arrears should not be left to accumulate.
- The remedies overlap and the law permits more than one. But Rajnesh v. Neha (2020) requires the applicant to disclose every earlier maintenance order or pending proceeding in the affidavit, and any amount awarded in one proceeding is adjusted against the others. Claiming the same money twice is not permitted, and an incomplete disclosure can damage credibility in every forum.