HOW TO FILE A PETITION FOR MAINTENANCE UNDER BNSS:

HOW TO FILE A PETITION FOR MAINTENANCE UNDER BNSS:

A Detailed Step-by-Step Guide for the Neglected Wife with No Income Source

Procedure, Precedent and Policy under Section 144 of the Bharatiya Nagarik Suraksha Sanhita,

2023

Spoorthi B

B.A. LL.B. (Hons.), University Law College & Department of Studies in Law, Bangalore University

Part I — Abstract and Introduction

A marriage does not always end with divorce papers and a clean financial break. For a great

many Indian women, it ends the day a husband simply stops providing — no formal separation, no

explanation, and, most critically, no income of her own to fall back on. The wife who has spent

years managing a household rather than building a career finds herself the hardest kind of destitute:

legally still married, socially still “provided for,” and financially at zero. Indian criminal procedure

has, since 1898, carried a remedy built precisely for this predicament, and that remedy today lives

in Chapter X of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”), specifically Section 144,

which replaced Section 125 of the erstwhile Code of Criminal Procedure, 1973 (“CrPC”) with

effect from 1 July 2024.1

This article maps the complete procedural journey available to a neglected wife with no

independent income — from establishing eligibility and choosing the correct forum, through

drafting the petition and securing interim relief, to final adjudication and enforcement — while

situating every procedural step within the body of Supreme Court precedent that gives the bare text

of Section 144 its practical meaning. Three terms recur throughout and are worth fixing at the

outset. “Sufficient means” refers not merely to disclosed income but to earning capacity as a

whole.2 “Neglect or refusal” is the wrongful failure to support a dependant who is legally entitled to

be supported. “Interim maintenance” is the provisional monthly sum a Magistrate may order while

the main petition is still pending, designed to prevent a claimant from starving while justice takes

its ordinary course.3 Part II situates Section 144 within its constitutional and statutory framework;

Part III converts that framework into a working, thirteen-step procedural guide illustrated throughcase law; Part IV subjects the provision to critical scrutiny; and Part V closes with reform

recommendations aimed squarely at the woman for whom the law exists — one without money,

and often without a lawyer on retainer.

Part II — Background and Legal Framework

A. Constitutional Foundations

The obligation to maintain a dependent spouse is not merely a statutory courtesy; the Supreme

Court has repeatedly located it within the constitutional scheme itself. Maintenance legislation of

this kind has been held to fall “within the constitutional sweep of Article 15(3) reinforced by Article

39” of the Constitution — Article 15(3) permitting the State to make special provision for women,

and Article 39 directing the State towards securing an adequate means of livelihood for all

citizens.4 The provision is accordingly read as a facet of the right to live with dignity under Article

21, not as an act of charity extended to an unfortunate claimant.

B. From Section 125 CrPC to Section 144 BNSS

Chapter X of the BNSS (Sections 144 to 147) reproduces, with limited but meaningful

refinement, the architecture of Sections 125 to 128 of the CrPC.5 Section 144(1) empowers a

Magistrate of the First Class to order a person possessing “sufficient means” who “neglects or

refuses to maintain” his wife, minor child, an adult child unable to maintain itself owing to physical

or mental disability, or an indigent parent, to pay a monthly allowance. An Explanation to the sub-

section clarifies that “wife” includes a woman divorced by, or who has obtained a divorce from, her

husband and who has not remarried — extending the remedy well beyond the subsisting

marriage.6

Two provisos to Section 144(1) matter enormously to a claimant with no income of her own.

The second proviso allows the Magistrate to order interim maintenance and litigation expenses

while the main petition is pending; the third proviso directs that such an interim application must,

as far as possible, be disposed of within sixty days from the date of service of notice on the

respondent7 — a statutory timeline absent from the language of the old Section 125 and aimed

directly at preventing a penniless claimant from being starved out by delay. Section 144(2) furtherallows the Magistrate to order maintenance from the date of the application itself, rather than

merely from the date of the final order, where the facts justify it.

Sub-sections (4) and (5) carve out disqualifications: a wife living in adultery, refusing without

sufficient reason to live with her husband, or living separately by mutual consent forfeits the right

to maintenance, and an existing order must be cancelled on proof of any of these grounds. The

provision is not, however, one-sided against a wife who has left the matrimonial home — where the

husband has contracted a second marriage or keeps a mistress, this is treated in practice as

sufficient justification for the wife’s refusal to cohabit, and does not defeat her claim.8

C. Procedure, Alteration and Enforcement — Sections 145–147

Section 145 fixes territorial jurisdiction with a deliberately claimant-friendly breadth:

proceedings may be instituted in any district where the respondent is, where the respondent or the

wife resides, where the couple last resided together, or, for a parent’s claim, where the parent

resides.9 Because the wife’s own place of residence is an independent ground of jurisdiction, a

woman with no income and no means to travel to her husband’s town is never obliged to litigate

away from home. Section 145(2) governs the manner of recording evidence and permits an ex parte

order where the respondent wilfully evades service, subject to being set aside within three months

on good cause shown. Section 146 (corresponding to the old Section 127 CrPC) allows either party

to seek alteration of the allowance on proof of changed circumstances, or automatic cancellation

where a divorced wife remarries or has received a settlement under personal or customary law.

Section 147 (corresponding to the old Section 128 CrPC) supplies the enforcement teeth: on

default, the Magistrate may issue a warrant levying the sum due as though it were a fine, and may

sentence the defaulter to imprisonment extending to one month, or until payment, for each month’s

default — subject to a one-year limitation period running from the date the sum fell due.

D. Section 144 Within a Wider Statutory Ecosystem

Section 144 BNSS does not operate in isolation. A wife may equally seek interim and

permanent maintenance under Section 24 of the Hindu Marriage Act, 1955, maintenance as an

incident of the marital relationship under Section 18 of the Hindu Adoptions and Maintenance Act,

1956, or monetary relief under Section 20 of the Protection of Women from Domestic Violence

Act, 2005. This overlap is a considered legislative choice rather than an oversight — Section 144remains the fastest and cheapest of the available remedies, requiring no court fee and a

comparatively summary procedure — but it does create a genuine risk of duplicate recovery across

forums, a concern the Supreme Court addressed directly in Rajnesh v. Neha, discussed below.10

Crucially, the remedy is secular in character and applies without regard to the claimant’s

religion. In Shabana Bano v. Imran Khan, the Supreme Court held that a divorced Muslim woman

may claim maintenance under Section 125 CrPC (now Section 144 BNSS) notwithstanding the

Muslim Women (Protection of Rights on Divorce) Act, 1986, reiterating that the provision applies

uniformly across faiths.11 The Court had earlier reached a similar conclusion regarding the

interplay between the 1986 Act and Section 125 in Danial Latifi v. Union of India, while upholding

the constitutional validity of the special Act by reading it harmoniously with the wife’s right to a

fair and reasonable settlement.12

Part III — Main Analysis: The Step-by-Step Procedure

The following sequence translates the statutory scheme above into the practical steps a

neglected wife with no income of her own would actually follow, read alongside the precedent that

shapes each stage.

Step 1 — Confirming Eligibility

The claimant must establish a subsisting or previously subsisting marriage and her own

inability to maintain herself. Critically, this does not require absolute destitution. In Chaturbhuj v.

Sita Bai, the Supreme Court held that the expression “unable to maintain herself” does not mean the

wife must be reduced to begging; where her personal income, if any, is insufficient to sustain the

standard of living she is entitled to, she may still claim maintenance.13 The Court reaffirmed this

position in Sunita Kachwaha v. Anil Kachwaha, holding that a wife’s possession of some income

does not by itself disentitle her — the relevant question is always sufficiency, not existence, of

income.14

Step 2 — Choosing the ForumUnder Section 145(1)(b), a wife may file where she herself resides. For a claimant with no

income and no ability to travel, this is ordinarily the most sensible choice, and it removes any need

to pursue the respondent to wherever he currently lives or works.

Step 3 — Drafting the Petition

The petition should set out: the fact and date of marriage (supported by a marriage certificate,

photographs, or witness testimony); particulars of cohabitation and separation; the specific

instances of neglect or refusal to maintain; the husband’s known or estimated income, assets, and

standard of living; the claimant’s own lack of income; and the relief sought — a monthly

allowance, interim maintenance and expenses of the proceeding pending disposal, and costs. It

should be duly verified and supported by an affidavit.

Step 4 — Filing the Interim Maintenance Application

An application for interim maintenance should ordinarily be moved simultaneously with the

main petition. Because Section 144’s third proviso mandates disposal of the interim application

within sixty days of service of notice wherever possible, this is the single most important

procedural lever available to a claimant who cannot wait months or years for a final order.

Step 5 — The Affidavit of Disclosure (Rajnesh Guidelines)

In Rajnesh v. Neha, the Supreme Court, exercising its powers under Articles 136 and 142,

prescribed a mandatory, uniform Affidavit of Disclosure of Assets and Liabilities to be filed by

both parties in every maintenance proceeding across the country, in every forum — including

proceedings already pending.15 The Court candidly noted that maintenance orders are too often

decided on “some amount of guess work,” because wives tend to understate their means and

husbands tend to conceal income; the disclosure format is designed to close that gap.16 The

respondent must file the reply affidavit within four weeks, and courts may grant no more than two

adjournments for this purpose; wilful and contumacious delay may result in the respondent’s

defence being struck off, allowing the court to decide the application on the claimant’s pleadings

and affidavit alone.17 For a wife with no income, honest and complete disclosure of her own (nil or

minimal) means is itself part of building an unimpeachable case.

Step 6 — Notice, Evidence and Ex Parte ReliefEvidence is recorded in the manner prescribed for summons-cases, in the presence of the

respondent or his advocate. Where the respondent wilfully evades service or neglects to attend, the

Magistrate may proceed and decide the matter ex parte; such an order may later be set aside only on

an application made within three months, on good cause shown. This provision prevents a husband

from indefinitely stalling proceedings by simply refusing to appear.

Step 7 — Determining the Quantum

Rajnesh v. Neha also supplies the operative criteria for fixing the amount of maintenance: the

standard of living the claimant enjoyed during the marriage; the income, assets and financial status

of both parties; the claimant’s reasonable needs, including medical and educational expenses; the

earning capacity of both spouses; and the number of dependants.18 The quantum must allow the

claimant to live with dignity rather than at bare subsistence — in Shamima Farooqui v. Shahid

Khan, the Supreme Court restored a maintenance figure that a High Court had halved without

adequate reasoning, holding that arbitrary reduction defeats the object of the provision and that a

woman is entitled to sustain a standard of living consistent with, not merely surviving, her

circumstances.19 The Court has equally made clear that an able-bodied husband cannot avoid the

obligation by pleading unemployment; in Bhuwan Mohan Singh v. Meena, it held that proceedings

under Section 125 (now Section 144) are summary in nature precisely so that destitute wives and

children can obtain relief speedily, and that a husband capable of earning, even through manual

labour, is expected to do so before he can resist a maintenance claim.20

Step 8 — The Final Order

On being satisfied of neglect or refusal, the Magistrate passes a final order fixing the monthly

allowance, which may run from the date of the order or, where so directed, from the date of the

original application.

Step 9 — Challenging or Defending the Order

An order under Section 144 is amenable to revision under Sections 438/442 of the BNSS

(corresponding to the old Sections 397/401 CrPC) before the Sessions Court or High Court, on

grounds of illegality or impropriety; interim maintenance orders have also been held revisable,

though practice on this point is not entirely uniform across High Courts.21Step 10 — Enforcement of a Defaulted Order

Where the husband fails to pay without sufficient cause, Section 147 empowers the Magistrate

to issue a warrant levying the amount due as though it were a fine, and to sentence the defaulter to

imprisonment of up to one month, or until payment, for each month’s default — provided the

application to levy is made within one year of the amount falling due. In parallel, a maintenance

order may also be executed as a civil decree, including through salary attachment, under Section 18

of the Family Courts Act, 1984, read with Order XXI of the Code of Civil Procedure, 1908, in cases

before a Family Court.

Step 11 — Guarding Against Multiplicity of Proceedings

Because the same claimant may simultaneously be entitled to relief under the Hindu Marriage

Act, the Domestic Violence Act and Section 144 BNSS, Rajnesh v. Neha directs disclosure of all

pending or previously decided maintenance proceedings, so that a later court can adjust the amount

awarded to account for sums already received and avoid double recovery.22

Step 12 — Seeking Alteration

Either party may apply under Section 146 for alteration of the allowance where circumstances

genuinely change — a rise in the husband’s income, or the wife securing stable employment, for

instance — and the order is automatically liable to cancellation on the wife’s remarriage or on her

receiving a full settlement under applicable personal or customary law.

Step 13 — Institutional Compliance

Finally, because compliance with the Rajnesh disclosure format is not always observed at the

trial level, the Supreme Court has, in a subsequent order, directed the re-circulation of the judgment

to every High Court and to the National and State Judicial Academies for the awareness and

training of Judicial Officers — a reminder that even well-designed procedural safeguards require

sustained institutional follow-through to actually reach the claimant they are meant to protect.23

Part IV — Critical Analysis and Evaluation

A. The Unresolved Question of the “De Facto” WifeThe Explanation to Section 144(1) continues to define “wife” by reference to a valid, or

previously valid, marriage. Judicial sympathy has periodically stretched this definition — most

notably in Chanmuniya v. Virendra Kumar Singh Kushwaha, where the Supreme Court observed

that a broad and expansive interpretation of “wife” was warranted for couples who had cohabited as

spouses for a reasonably long period, and referred the question to a larger Bench for authoritative

resolution.24 That reference was never conclusively answered, and the Malimath Committee’s

recommendation that the definition be legislatively amended to cover women in marriage-like

relationships was not carried into the BNSS.25 The result is a body of inconsistent High Court

rulings on live-in partners, leaving precisely the most economically vulnerable claimants —

women without the documentary proof of a formal marriage — to litigate a threshold question that

Parliament could have settled definitively.

B. The Gap Between Doctrine and Trial-Court Practice

The mandatory Affidavit of Disclosure prescribed in Rajnesh v. Neha is, on paper, one of the

most claimant-protective innovations in modern Indian maintenance law. Yet barely three years

after the judgment, the Supreme Court found it necessary, in Aditi v. Jitesh Sharma, to direct fresh

circulation of the guidelines because trial courts across the country were still fixing maintenance

without any affidavit on record, reverting to the very “guess work” the guidelines were designed to

eliminate.26 For a wife with no income, this compliance gap is not a technicality — it is the

difference between a quantum grounded in verified figures and one shaped by whichever party

argues more persistently.

C. Enforcement Remains the Weak Link

A one-month imprisonment cap, combined with the practical delays of warrant execution and

a self-employed or cash-income respondent’s ability to understate earnings, means Section 147’s

coercive machinery is often more symbolic than effective. Recovery therefore frequently depends

on a claimant’s capacity to pursue parallel civil execution — a capacity a woman with no income

and no independent legal representation rarely has.

D. RecommendationsFirst, the Rajnesh disclosure format ought to be codified directly into the BNSS Rules,

converting a judicially-imposed practice into a statutory default so that compliance is audited

administratively rather than left to episodic Supreme Court intervention.

Second, State Legal Services Authorities should operate an integrated, legal-aid-linked e-

filing window for Section 144 applications, so that a claimant with no income is never functionally

priced out of invoking a remedy that costs her nothing in law but often a great deal in practice.

Third, Parliament should resolve the unfinished business of Chanmuniya by legislatively

extending maintenance protection, for this limited purpose, to women in long-term, marriage-like

cohabitation, removing an unpredictable threshold dispute from litigation.

Fourth, enforcement should be strengthened through direct linkage with employer and

provident-fund records to enable deduction of maintenance at source in cases of proven wilful

default, reducing reliance on the comparatively blunt instrument of short-term imprisonment.

Fifth, periodic judicial-academy audits of trial-court compliance with disclosure and timeline

requirements would convert the sixty-day interim maintenance mandate from an aspirational figure

into an enforceable service standard.

Part V — Conclusion

Section 144 of the BNSS preserves, and in places sharpens, the welfare architecture that

Section 125 of the CrPC built over five decades of judicial interpretation: a summary, secular,

dignity-oriented remedy against the vagrancy of a wife whom a husband of sufficient means has

chosen to neglect. Its explicit sixty-day timeline for interim relief and its incorporation, through

precedent, of a mandatory disclosure regime represent genuine procedural advances for exactly the

claimant this article has traced — the wife with no income of her own, for whom delay is not an

inconvenience but a threat to daily survival.

Yet a statute is only as protective as its implementation, and the record canvassed in Part IV

shows a persistent gap between what the Supreme Court has directed and what trial courts, in

practice, deliver. The most consequential reforms available now are not further amendments to the

substantive text of Section 144, but administrative and institutional ones: codifying disclosure,resourcing legal aid, closing the live-in relationship loophole, and giving enforcement genuine

teeth. A step-by-step guide can tell a neglected wife exactly where to file and what to plead; only

sustained institutional will can guarantee that the sixty days the law promises her are the sixty days

she actually gets.References and Citations

Statutes

1. The Bharatiya Nagarik Suraksha Sanhita, 2023 (Act No. 46 of 2023), Chapter X, ss. 144–147.

2. The Code of Criminal Procedure, 1973 (Act No. 2 of 1974), ss. 125–128 (as repealed and

replaced by the BNSS, 2023, with effect from 1 July 2024).

3. The Constitution of India, 1950, arts. 14, 15(3), 21 and 39.

4. The Hindu Marriage Act, 1955 (Act No. 25 of 1955), s. 24.

5. The Hindu Adoptions and Maintenance Act, 1956 (Act No. 78 of 1956), s. 18.

6. The Protection of Women from Domestic Violence Act, 2005 (Act No. 43 of 2005), s. 20.

7. The Family Courts Act, 1984 (Act No. 66 of 1984), s. 18.

8. The Muslim Women (Protection of Rights on Divorce) Act, 1986 (Act No. 25 of 1986).

Cases

9. Rajnesh v. Neha, (2021) 2 SCC 324.

10. Chaturbhuj v. Sita Bai, (2008) 2 SCC 316.

11. Bhuwan Mohan Singh v. Meena, (2015) 6 SCC 353.

12. Shamima Farooqui v. Shahid Khan, (2015) 5 SCC 705.

13. Sunita Kachwaha v. Anil Kachwaha, (2014) 16 SCC 715.

14. Shabana Bano v. Imran Khan, (2010) 1 SCC 666.

15. Danial Latifi v. Union of India, (2001) 7 SCC 740.

16. Chanmuniya v. Virendra Kumar Singh Kushwaha, (2011) 1 SCC 141.

17. Kaushalya v. Mukesh Jain, (2020) 17 SCC 822.

18. Aditi v. Jitesh Sharma, 2023 SCC OnLine SC 1451.

19. Captain Ramesh Chander Kaushal v. Veena Kaushal, AIR 1978 SC 1807.Secondary Sources

20. “Maintenance Rights Under Section 144 of the BNSS: Judicial Interpretations and Legislative

Gaps,” Student Law Journal, Dharmashastra National Law University (2024).

21. SCC Online Blog, “Judges Not Adhering to Guidelines on Maintenance Given in Rajnesh v.

Neha: Supreme Court Directs Re-circulation of Judgment to Judges and Judicial Academies”(10 November 2023)

Frequently Asked Questions (FAQs)

Q1. What is the primary objective of Section 144 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023?
Section 144 BNSS provides a speedy, summary, and welfare-oriented remedy to ensure that wives, children, and parents who are unable to maintain themselves receive financial support from a person having sufficient means who has neglected or refused to maintain them.

Q2. Who is eligible to claim maintenance under Section 144 BNSS?
A legally wedded wife (including a divorced wife who has not remarried), minor children, adult children suffering from physical or mental disabilities, and indigent parents are entitled to claim maintenance if they are unable to maintain themselves.

Q3. Can a wife who is educated but unemployed claim maintenance?
Yes. Educational qualifications alone do not disqualify a wife from claiming maintenance. The court considers whether she has sufficient independent income to maintain herself with dignity.

Q4. Can a husband avoid paying maintenance by remaining unemployed?
No. Courts consider the husband’s earning capacity rather than merely his present income. An able-bodied person cannot evade the legal duty to maintain dependants by intentionally remaining unemployed.

Q5. Can a wife seek interim maintenance before the final disposal of the case?
Yes. Section 144 BNSS empowers the Magistrate to grant interim maintenance and litigation expenses during the pendency of the proceedings, and such applications should ordinarily be decided within sixty days from the date of service of notice.

Q6. Where can a maintenance petition under Section 144 BNSS be filed?
The petition may be filed in the district where the respondent resides, where the wife resides, where the parties last resided together, or, in the case of parents, where the parent resides.

Q7. Can maintenance be awarded from the date of filing the application?
Yes. Under Section 144(2) BNSS, the Magistrate may direct that maintenance be payable from the date of the application instead of only from the date of the final order, depending upon the facts and circumstances of the case.

Q8. Can maintenance proceedings continue even if divorce proceedings are pending?
Yes. Maintenance under Section 144 BNSS is an independent remedy and may proceed simultaneously with matrimonial proceedings, subject to adjustment to prevent duplicate recovery.

Q9. Is electronic evidence such as WhatsApp messages, bank statements, UPI records, or social media posts relevant in maintenance cases?
Yes. Digital evidence may be used to establish marriage, financial capacity, lifestyle, neglect, or concealment of income, subject to the applicable rules of evidence.

Q10. What is the significance of the Supreme Court’s decision in Rajnesh v. Neha?
The judgment introduced mandatory disclosure of assets and liabilities, laid down uniform guidelines for determining maintenance, and sought to ensure fairness, transparency, and consistency in maintenance proceedings across India.

Q11. Can the amount of maintenance be modified after the order is passed?
Yes. Either party may seek alteration of the maintenance amount if there is a substantial change in circumstances, such as an increase in the husband’s income or the wife’s financial independence.

Q12. What happens if the husband fails to comply with the maintenance order?
The Magistrate may recover the arrears through a warrant, treat the amount as a fine, and may sentence the defaulter to imprisonment for each month’s default in accordance with the provisions of the BNSS.

Q13. Can a divorced Muslim woman claim maintenance under Section 144 BNSS?
Yes. Section 144 BNSS is a secular provision applicable irrespective of religion, subject to the legal requirements and judicial precedents governing maintenance.

Q14. Why is Section 144 BNSS regarded as a social justice provision rather than merely a financial remedy?
Its purpose is not merely to provide money but to prevent destitution, uphold human dignity, protect vulnerable dependants, and fulfil the constitutional vision of social justice and equality.

Q15. What is the most important reform needed to strengthen Section 144 BNSS?
The law would become more effective through stricter enforcement mechanisms, mandatory digital disclosure of assets, faster disposal of interim maintenance applications, automatic salary deductions in appropriate cases, and stronger institutional compliance with judicial guidelines.