Service Matters in MP: What Every Government Employee in Indore Needs to Know About Their Legal Rights
Maintenance under Section 125 of the Code of Criminal Procedure has been one of the most widely used and socially significant legal provisions in Indian family law for decades. With the enactment of the Bharatiya Nagarik Suraksha Sanhita 2023, this provision has been re-enacted as Section 144, preserving the substantive framework while introducing certain procedural modifications. The provision is secular in its application, cutting across religious personal laws, and provides a relatively accessible remedy for wives, children, and parents who are unable to maintain themselves. This article examines the legal entitlement to maintenance under Section 144 BNSS, the factors courts consider in determining quantum, the procedural aspects of maintenance proceedings, and the enforcement mechanisms available when a maintenance order is not complied with.
The Legal Framework: Section 144 BNSS and Its Scope
Section 144 of the BNSS re-enacts the substance of Section 125 CrPC with the same core entitlements. The provision applies uniformly to all persons regardless of religion, making it distinct from personal law maintenance remedies which vary by religion.
The persons entitled to claim maintenance under Section 144 BNSS are:
Claimant | Entitlement Condition |
Wife | Husband has sufficient means; wife is unable to maintain herself |
Legitimate minor child | Father has sufficient means; child is unable to maintain itself |
Illegitimate minor child | Father has sufficient means; child is unable to maintain itself |
Major child with physical or mental abnormality | Father has sufficient means; child is unable to maintain itself |
Father or mother | Son or daughter has sufficient means; parent is unable to maintain themselves |
The term wife for Section 144 BNSS includes a divorced wife who has not remarried, as the Supreme Court has consistently held. A divorced woman can continue to claim maintenance under this provision until she remarries, though she may also have remedies under personal law such as the Muslim Women (Protection of Rights on Divorce) Act 1986.
Takeaway: Section 144 BNSS provides a uniform secular maintenance remedy that applies across religions and is broader in scope than personal law maintenance provisions, making it the most commonly invoked maintenance remedy in Indian courts.
Interim Maintenance: The First Relief Sought
One of the most practically important aspects of maintenance proceedings is the availability of interim maintenance pending the final determination of the application. When a maintenance application is filed, the Magistrate can pass an interim order for maintenance at an early stage of the proceedings without waiting for the full hearing.
Interim maintenance applications are typically heard and decided within the first few hearings. The applicant places before the court an affidavit disclosing their financial position and needs, and the respondent is allowed to file a reply. The Magistrate determines an appropriate interim amount based on the prima facie financial position of the parties.
The Supreme Court in Rajnesh v. Neha (2020) issued detailed guidelines on maintenance proceedings that are now binding on all courts across India. These guidelines include:
Rajnesh v. Neha Guideline | Requirement |
Affidavit of assets and liabilities | Both parties must file a detailed affidavit disclosing income, assets, and expenses |
Non-duplication of maintenance | Courts must ensure maintenance is not awarded under multiple proceedings simultaneously for the same period |
Timelines | Maintenance applications should be disposed of within sixty days where possible |
Enforcement | Courts must actively enforce maintenance orders through available mechanisms |
The Rajnesh guidelines significantly improved the maintenance process by requiring financial disclosure from both parties on oath, reducing the information asymmetry that previously disadvantaged claimants who did not have access to evidence of the respondent’s income.
Determining the Quantum: What Courts Consider
The quantum of maintenance is not fixed by any formula under Section 144 BNSS. Courts have discretion to award such monthly allowance as they think fit, taking into account the circumstances of the case. Over decades of jurisprudence, courts have identified the following factors as relevant to quantum determination:
Income and financial capacity of the respondent. This includes salary, business income, rental income, agricultural income, and any other source of earnings. Courts examine salary slips, income tax returns, bank statements, and property records where available.
Reasonable needs of the claimant. The claimant’s expenses for accommodation, food, clothing, medical needs, and in the case of children, education and extracurricular activities are relevant.
Standard of living during the marriage. Courts consider the lifestyle the claimant was accustomed to during the subsistence of the marriage. A claimant who lived in a particular standard of comfort is entitled to maintenance that reflects that standard.
Claimant’s own income and assets. A wife who has independent income is not disentitled to maintenance, but her income is taken into account in determining the appropriate amount. The gap between the parties’ incomes is a relevant consideration.
Number of dependants. Where the respondent has other dependants including children from the same or a different relationship, the court takes this into account.
Special needs. Medical conditions, disability, or special educational needs of the claimant or children requiring maintenance are given weight.
The Maintenance Proceedings Process Before the Magistrate Court
Stage | What Happens |
Filing | Application filed before the Judicial Magistrate First Class in whose jurisdiction the applicant resides or where the respondent resides |
Interim maintenance | Court passes interim order on financial affidavits without waiting for full hearing |
Notice to respondent | Respondent is served with notice and required to file reply |
Evidence | Both parties file affidavits of assets and liabilities as per Rajnesh guidelines; documents produced in support |
Arguments | Both sides present oral arguments on entitlement and quantum |
Final order | Magistrate passes final order specifying monthly maintenance amount |
Enforcement | On default, execution proceedings including imprisonment and attachment of property |
The Magistrate Court has the power to modify a maintenance order on application by either party if there has been a change in circumstances since the original order was passed. An increase in the respondent’s income, a change in the claimant’s financial position, or a change in the needs of the children are all recognised grounds for seeking modification.
Maintenance Under Multiple Provisions: Avoiding Duplication
A claimant may simultaneously have maintenance remedies available under Section 144 BNSS, under personal law, and under the Hindu Marriage Act or the Protection of Women from Domestic Violence Act. The Rajnesh guidelines specifically address the problem of duplication, which arises when maintenance is claimed and awarded under multiple provisions for the same period.
Courts are now required to account for maintenance already awarded under one provision when determining maintenance under another. A wife who has received interim maintenance under Section 144 BNSS is entitled to maintenance under Section 24 of the Hindu Marriage Act as well, but the court granting maintenance under Section 24 must take the Section 144 BNSS order into account to avoid double-counting.
For clients whose matrimonial matters involve both maintenance proceedings and divorce or custody proceedings before the Family Court, our page on child custody cases in Indore addresses how maintenance and custody proceedings interact. For the broader framework of matrimonial disputes including divorce and matrimonial property, our Areas of Practice page provides a comprehensive overview.
Enforcement: What Happens When Maintenance Is Not Paid
A maintenance order that is not complied with is not self-executing. The claimant must take active steps to enforce it. Section 144 BNSS provides specific enforcement mechanisms:
Warrant for levy of fine. The Magistrate can issue a warrant for levying the amount due as a fine, meaning the respondent’s property can be attached and sold to recover the arrears.
Imprisonment. If the respondent fails to comply with the maintenance order without sufficient cause, the Magistrate can sentence them to imprisonment for a term that may extend to one month for each month’s maintenance in default, or until payment is made, whichever is earlier.
Attachment of salary. Where the respondent is a salaried employee, the court can issue a notice to the employer directing that maintenance be deducted directly from the salary and paid to the claimant.
Enforcement proceedings begin with an application for execution before the same Magistrate who passed the maintenance order. The application states the amount of arrears and the period for which maintenance has not been paid.
For clients whose maintenance matters have been decided at the Magistrate level and require an appeal or revision before the Sessions Court or the High Court.
Frequently Asked Questions
Yes. Maintenance under Section 144 BNSS is independent of divorce proceedings. A wife who is living separately from her husband for justifiable reasons, or who has been deserted or subjected to cruelty, can file a maintenance application without filing for divorce.
Yes. A wife with independent income is not automatically disentitled to maintenance. Courts consider the difference between the parties’ incomes and the standard of living during the marriage. Where there is a significant disparity in income, maintenance may still be awarded despite the wife having her own earnings.
Courts generally award maintenance from the date of the application, not from the date of the final order. This means that arrears accumulate from the date of filing and must be paid by the respondent in addition to the ongoing monthly amount.
No. Section 144 BNSS provides maintenance for wives, not husbands. However, parents of either gender can claim maintenance from their children under the same provision. A husband may have other remedies under personal law in specific circumstances.
Arrears of maintenance under Section 144 BNSS can be recovered for a maximum period of one year prior to the date of the application, unless the Magistrate is satisfied that there was sufficient cause for not making the application within that period.
Enforcement against a person residing abroad is practically challenging but not impossible. Indian courts can issue notices and warrants, and the matter can be taken up through diplomatic channels in some cases. For NRI respondents, a practical approach involves bringing the matter to the attention of Indian authorities and pursuing enforcement when the respondent is present in India.
