Keywords: MAINTENANCE ,PETITION BNSS, HOW TO FILE MAINTENANCE, SECTION 144 BNSS
Abstract
The new Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 brings in improvements, one of them is the right to claim maintenance from one’s spouse, parents or children. The present article concentrates on the relevant section of the BNSS, namely section 144, which is meant to replace the much debated section 125 of the CrPC, 1973. It was the very need for this particular section that motivated the writing of this article. It was adopted to serve a purely civil function. It is criminal law’s task to protect the community from vagrancy. The article treats of the procedure for obtaining the claim, the amendments made in the revised code, as well as the requirements for obtaining intermittent payments of alimony and litigation allowance according to the new law. It includes a detailed list of prerequisites, a short description of recent case law, an elaborate section on the methods known to be effective, a section of frequently asked questions for reference to those who need it.
When it comes to context, the very law that this section was needed to amend was the Code of Criminal Procedure, 1973, and particularly section 125. The reason behind the introduction of this particular section was that it offered a summary remedy, which was not caught up in the lengthy procedures of either a civil or matrimonial jurisdiction in any of the personal laws. However, the very procedures that were supposed to help in quick resolution of the matter were “frustrated by numerous interim applications, delays in service of notice, and non-disclosure of the respondent’s income.” These drawbacks have been resolved in the newly introduced Bharatiya Nagarik Suraksha Sanhita, 2023, where the very purpose that the section 144 serves, is restored to some extent. Therefore, the article can be used by legal interns, who are well-versed in the basic procedures and need to understand how the law actually works on the ground, as well as by practitioners, who need to secure their client’s entitlement to alimony under the family law, as a reference.
Legal Framework & Structural Shifts
Section 144 of the BNSS basically takes over Section 125 of the CrPC, with the secular colour, as the latter has been a direct statutory provision of the Indian law system, which has been a cornerstone of Indian legal justice. This secular character of the statute also adds to the strength of the provision, since it negates the necessity of any religious law compliance for the claimant. Any Hindu, Muslim, Christian, Parsi or Jewish person may approach the concerned forum on the basis of this law, without being denied the rights on the grounds of any personal law. However , it must be noted that the focus is on general social security and not particular religious customs which, by their very nature, would derogate from the very essence of personal freedom and choice as envisaged by Articles 15(3) and 21 of the Constitution.
it must be noted that a Magistrate of the First Class may, by order under Section 144(1) BNSS, if satisfied from the petition tendered to him, order any person who is so required by the order to pay monthly allowance to his wife who is unable to maintain herself and their minor children whether married or not,their major children who are physically or mentally disabled so long as a daughter is not married and his parents for their maintenance. The very basics of this law, however, remain the same, focusing on the social security, gender equality and general distributive justice as mandated by Articles 15(3) and 21 of the Constitution of India.
However, it must also be noted that the most significant change made in the BNSS was to provide a sense of urgency to all matters relating to maintenance. The past interim maintenance orders were notorious for taking years to be decided, which negated any sort of interim justice. Hence in order to comply with the principle of expeditious justice, Section 144 of the BNSS mandates that the application for interim maintenance and litigation expenses must mandatorily be disposed off within sixty (60) days of the service of notice to the respondent. It is this very procedural change which marks the structural shift in the law as far as the urgent maintenance petitions are concerned. By virtue of the same, the judicial system in India is pushed into a state of urgency where both the parties to the dispute are compelled to disclose the relevant financial information forthwith. It not only limits the time for adjournments but also shortens the timeline for disposal of the petition which has been a matter of concern under the old process as well.
It must also be added that the change to the BNSS from CrPC is also more convenient and in tune with the modern day requirements. It acknowledges that in the present day and age, the conventional modes of serving notices lack efficacy, both in terms of time and convenience, for the respondent.In fact, by virtue of making the use of electronic mode mandatory, the BNSS attempts to bring down the overall timeline of the proceedings, which is at present the most exploited loop-hole by the defaulting spouse, wherein the entire process of filing the application for maintenance is adjourned on a continuous basis, thus delaying the disclosure of the financial assets and liabilities of the respondent spouse.
Roadmap To File Petition Under 144 BNSS
A petitioner has to comply with the below-mentioned step-by-step litigation roadmap to get an interim maintenance order to ensure a swift interim order:
Step 1: Drafting the Main Petition and Interlocutory Applications
The petitioner has to file a complete application under a specific heading of Section 144 of BNSS. The applications must contain three primary ingredients:
(a) The existence of a valid relationship such as marriage, filiation, or parentage
(b) The respondent has the substantial means
(c) The respondent has failed to maintain the petitioner despite being obliged to do so.
The applicant is unable to maintain himself
and
a further interlocutory application for interim maintenance and litigation expenses to meet the costs of counsel shall be filed, stating the petitioner’s estimated monthly expenditure and the sum required for litigation expenses.
Step 2: Comprehensive Affidavit of Assets and Liabilities on Both Sides
In light of the recent SC ruling in Rajnesh v Neha (2021), which has been subsumed in the new procedural law, both sides need to file a complete ‘Affidavit of Assets and Liabilities’. The petitioner and the respondent have to disclose their gross income, movable and immovable properties, bank account details, and investments and also their monthly expenditures, residential status, and liabilities. Further, a petition accompanies the petitioner’s affidavit, and the respondent’s written statement is attached to their affidavit. Moreover, concealed income and misrepresentation of assets are some of the punishable offenses.
Step 3: Verification of Jurisdiction, Filing, and Notice to The Opposite Party
The verified maintenance petition is filed before the Judicial Magistrate First Class or the Family Court, as the case may be, established under the Family Courts Act, 1984. The jurisdiction is generally either the respondent’s or the petitioner’s place of residence or the place of the marriage. The petition is filed and the court issues summons after verifying and admitting the petition. The service of summons must be proved by the petitioner as soon as possible to allow the court to set the next hearing within 60 days of filing in accordance with the new procedural law under BNSS.
Step 4: Written Statement, Counter affidavits, And Addressing Non Appearance
After service of summons and notice, the respondent shall have an opportunity to file a written statement and submit a counter affidavit of assets and liabilities. In case the respondent does not appear despite service of summons, the court can go ex-parte and take cognizance of the petitioner’s evidence. This step is taken to avoid misadventitious non-appearance of the respondent by the respondent or his counsel to avoid the 60-day mandatory time limit for the disposal of applications for interim maintenance.
Step 5: Arguments And Order On Interim Maintenance And Litigation Expenses
The petitioner shall be at liberty to move for interim maintenance and litigation expenses on the day of hearing. After going through the papers pertaining to affidavits on assets and liabilities, the Court shall take into consideration the lifestyle of the petitioner and pass an order for interim maintenance and litigation expenses to be paid by the respondent to the petitioner on a monthly basis. The reason for giving such an order under the new procedural law is to keep the petitioner from becoming homeless or helpless.
The next step after passing an order on interim maintenance and litigation expenses is to record the oral evidence of both parties on the record and decide the matter for permanent maintenance. The documents including salary slips, bank statements, income-tax returns, etc., shall be recorded on the court’s orders. Section 144(3) of the BNSS also gives the Magistrate power to issue a warrant of arrest if the respondent fails to obey an interim or final order of payment of maintenance without assigning reasonable grounds. The Magistrate can also send him to jail for a month for every month of default.
In the above steps, it has been described how a petitioner can seek permanent alimony and maintenance in accordance with the new procedural law introduced by the BNSS.
Critical Analysis, Judicial Precedents, and Loopholes Essay
Although a move to section 144 of the BNSS is indeed remarkable in terms of statutory drafting, it has several critical implications, both in terms of implementation and loopholes. First and foremost, a 60-day deadline for interim maintenance seems to be a tough requirement to meet in the current jurisprudence. Judiciary in India is already stretched to its limits, with family courts and magistrates having to deal with hundreds of cases annually. Such a heavy load hardly allows them to deliver a judgment within 60 days, unless special fast-track courts are established, additional judges are employed, and digitization of the process is implemented.
Judiciary has been very instrumental in plugging various loopholes in the maintenance laws and ensuring that neither the wife nor the husband can default on their payments, either by misrepresenting their income or dissipating their assets. In the case of Rajnesh v. Neha (2021) 2 SCC 324, the Supreme Court, in its ruling, essentially held that any interim maintenance payments should be made according to the living standards the petitioner had to maintain before the marriage. It also remarked that the amount should not be both degrading for the petitioner and unreasonable for the respondent. Similarly, in the case of Kalyan Dey Chowdhury v. Rita Dey Chowdhury (2017) 14 SCC 200, the Supreme Court ruled that 25% of the respondent’s net salary is typically a just and reasonable amount of interim maintenance. These judgments, among others, have been very influential in shaping the current jurisprudence in matters of spousal support. Under the BNSS, these rulings still serve as a solid theoretical basis for calculating the amount of interim maintenance and preventing the respondent from artificially reducing his or her income.
On the other hand, one cannot fail to notice that the summary process of section 144 does not provide for an efficient asset attachment procedure. It appears fairly straightforward for the respondent to dissipate the couple’s liabilities, for example, by transferring money from one account to another, or by selling family business or property and giving away the money, or leaving the job with an intention of evading the payments by transferring the money to another person or terminating the employment on purpose. Despite the fact that according to section 144(3), such fraudulent behavior is subject to a prison sentence, there is no provision for the immediate attachment of the assets of the respondent in order for the petitioner to obtain the money due to her. In the future, it should be allowed for the magistrates to intervene with the respondent’s financial funds, for example, take away a part of the monthly rent if a spouse is trying to conceal his or her assets.
Conclusion
Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 seeks to secure the respondent’s weak family members from the exploitation by the respondent and provide for a period of sixty days for fixation of interim maintenance and litigation expenses. It is significant that Parliament showed such inclination to control the manipulative tendencies of the respondents through the said provision. Nevertheless, it is of the utmost importance that the courts require the strictest scrutiny of asset disclosures and reject the various dilatory ploys by respondents to obtain the disclosure of assets necessary to meet the legislative policy.
In the future, it will be of primacy that the National Legal Services Authority concentrates on digitizing the affidavits, sending out reminders of unpaid installments and creating separate family courts to make the proposed provisions of the Bharatiya Nagarik Suraksha Sanhita, 2023 a reality and not a ‘paper policy’. The above discussion emphasizes future legislative and judicial reforms that can be used to actualize the progressive propositions of Indian laws.
References & Legal Citations
1. Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, Section 144.
2. Code of Criminal Procedure (CrPC), 1973, Section 125 (Repealed).
3. Rajnesh v. Neha, (2021) 2 SCC 324.
4. Kalyan Dey Chowdhury v. Rita Dey Chowdhury, (2017) 14 SCC 200.
5. Family Courts Act, 1984.
6. Constitution of India, Articles 15(3) and 21.
Frequently Asked Questions (FAQs)
Q1. What is the main difference between Section 125 of the CrPC and Section 144 of the BNSS?
Ans: Section 144 of the BNSS, 2023, is the direct procedural successor to Section 125 of the CrPC, 1973. While the core right to claim maintenance remains identical, the BNSS introduces strict procedural updates, most notably a mandatory 60-day statutory timeline for deciding interim maintenance and litigation cost applications from the date the respondent is served notice.
Q2. Can a Muslim wife or a Christian wife file for maintenance under Section 144 of the BNSS?
Ans: Yes. Section 144 of the BNSS is a secular provision that overrides personal laws. Any dependent person, regardless of their religion (Hindu, Muslim, Christian, Parsi, etc.), can file a petition under this section before a Magistrate, even if they have alternative options under specific personal law statutes.
Q3. Is the 60-day timeline for deciding interim maintenance strictly followed by courts?
Ans: Under Section 144, the application for interim maintenance and litigation costs must ideally be decided within 60 days from the date of service of notice to the respondent. However, practical delays due to court congestion can extend this period, making proactive legal follow-up essential.
Q4. What happens if the husband hides his true income or claims to be unemployed?
Ans: Both parties must file a detailed, mandatory ‘Affidavit of Assets and Liabilities’ as established by the Supreme Court in Rajnesh v. Neha. If a husband hides his income, the wife can present secondary evidence, such as photographs of lifestyle, business registrations, vehicle ownership data, or social media records. The court can then draw an adverse inference against the husband for hiding financial details.
Q5. Is there a maximum statutory limit or fixed cap on the maintenance amount under the BNSS?
Ans: No. While there is no fixed percentage written directly into the text of Section 144 BNSS, judicial precedents like Kalyan Dey Chowdhury v. Rita Dey Chowdhury have established a general benchmark of 25% of the husband’s net salary as a reasonable starting point for a dependent wife’s maintenance.
Q6. Are there any conditions under which a wife’s claim for maintenance can be legally rejected?
Ans: Yes. Under Section 144(4) of the BNSS, a wife is not entitled to receive an allowance or interim maintenance if she is living in adultery, if she refuses to live with her husband without any sufficient reason, or if they are living separately by mutual consent.
Q7. How is an interim maintenance order enforced if the respondent refuses to pay?
Ans: An interim maintenance order is operational from either the date of the application or the date of the order, as explicitly specified by the Magistrate. If the respondent defaults on payments, the petitioner can file an execution application under Section 144(3), which can result in a distress warrant and sentencing the defaulter to jail for up to one month for each month of unpaid dues.
Q8. Can parents file for maintenance against their children under Section 144 of the BNSS?
Ans: Yes. Section 144 explicitly permits dependent, aged, or infirm parents (both fathers and mothers) to file a maintenance petition against their adult children if the children have sufficient means but neglect or refuse to maintain them.
Q9. What are ‘Litigation Costs’ and why should they be requested at the interim stage?
Ans: Litigation costs refer to the legal expenses, court fees, and advocate representation fees incurred by the petitioner while pursuing the case. Requesting litigation costs alongside interim alimony ensures that a financially dependent spouse is not denied access to quality legal representation due to a lack of funds.
Q10. Can the maintenance amount be increased or decreased after a final order is passed?
Ans: Under Section 147 of the BNSS (corresponding to Section 127 of the CrPC), either party can file an application for alteration of the maintenance amount based on a change in circumstances, such as a major promotion, job loss, inflation, severe illness, or a change in the number of dependents.
