Introduction
Maintenance refers to a social justice remedy for providing basic amenities like food, shelter, clothing etc. to prevent destitution and vagrancy. It is considered a speedy, fast and a summary remedy . It particularly includes wives,children and elderly parents. Maintenance has no fixed amount and the Court decides it after considering various factors which includes the needs of the dependent and financial capacity of the person providing maintenance.
Section 125 of the Code of Criminal Procedure (CrPC), 1973 Chapter XI historically stood as a strong pillar ensuring maintenance to wives, children and elderly parents irrespective of religion. Chapter X BNSS deals with the Order for maintenance of wives, children and parents and lays down the procedure,alteration and enforcement of maintenance. Section 144 of BNSS, 2023 effective from July 1, 2024 withholds this principle with slightest changes thereby ensuring judicial and jurisprudential continuity.
Before moving ahead it is essential to understand the landmark judgement made by The Supreme Court in Mohd. Ahmed Khan v. Shah Bano Begum Case – The Supreme Court judgment extended maintenance rights to divorced Muslim women, stating that personal laws cannot override secular provisions under the CrPC (now BNSS). It affirmed that a divorced Muslim woman incapable of supporting herself is entitled to maintenance beyond the iddat period unless she remarries. The main objective of Maintenance Law is not to punish the husband or father, but ensure that the deprived members do not go through destitution or vagrancy.
Who can claim maintenance under Section 144 BNSS ?
Under Section 144 BNSS (previously section 125 CrPc) maintenance can be claimed by the following:
- wife, unable to maintain herself; or
- legitimate or illegitimate child, whether married or not, unable to maintain itself; or
- legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself; or
- father or mother, unable to maintain himself or herself
a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such a monthly rate as such Magistrate thinks fit and to pay the same to such person as per the mentioned time.
However, a wife’s right to maintenance is subject to the following exceptions:
- Adultery: A wife living in adultery forfeits her right to maintenance.
- Unjustified Separation: A wife cannot claim maintenance if she leaves her husband without sufficient cause. However, if her husband contracts another marriage or keeps a mistress, the wife’s refusal to live with him is justified.
- Mutual Consent: If both spouses choose to live separately by mutual consent, the wife cannot claim maintenance.
- Remarriage After Divorce: A wife loses her right to maintenance if she remarries following a divorce.
Interim Maintenance
Under Section 144 BNSS, The Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance, order the person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct. This is done to ensure immediate support, preventing financial hardship during lengthy legal battles. Further, it is also provided that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person. Section 125 CrPC faced certain limitations like, delay in proceedings as dependents had to wait until the final order of maintenance, emergency situations were not properly addressed and certain procedural barriers that made the process slower.
Procedure for Maintenance
Section 145 BNSS (earlier Section 126 CrPC) deals with the procedure of maintenance. This section lays down an effective and speedy procedure for maintenance. It ensures that the proceedings are summary in nature and there is quick adjudication. The section states that:
(1) Proceedings under section 144 may be taken against any person in any district—
(a) where he is; or
(b) where he or his wife resides; or
(c) where he last resided with his wife, or as the case may be, with the mother of the illegitimate child; or
(d) where his father or mother resides.
(2) All evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made, or, when his personal attendance is dispensed with, in the presence of his advocate, and shall be recorded in the manner prescribed for summons-cases:
Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper.
(3) The Court in dealing with applications under section 144 shall have power to make such an order as to costs as may be just.
Alteration in allowance
Section 146 BNSS (earlier Section 127 CrPC) states that the order for maintenance can be altered according to the circumstances. The maintenance amount can be increased, decreased or canceled as previously decided by the Magistrate. This ensures that maintenance is not static but adjusting according to the dynamic situations.
The section lays down the following:
(1) On proof of a change in the circumstances of any person, receiving, under section 144 a monthly allowance for the maintenance or interim maintenance, or ordered under the
same section to pay a monthly allowance for the maintenance, or interim maintenance, to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration, as he thinks fit, in the allowance for the maintenance or the interim maintenance, as the case may be.
(2) Where it appears to the Magistrate that in consequence of any decision of a competent Civil Court, any order made under section 144 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly.
58(3) Where any order has been made under section 144 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that—
(a) the woman has, after the date of such divorce, remarried, cancel such order as from the date of her remarriage;
(b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order,—
(i) in the case where such sum was paid before such order, from the date on which such order
was made;
(ii) in any other case, from the date of expiry of the period, if any, for which maintenance has
been actually paid by the husband to the woman;
(c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance or interim maintenance, as the case may be, after her divorce, cancel the order from the date thereof.
(4) At the time of making any decree for the recovery of any maintenance or dowry by any person, to whom a monthly allowance for the maintenance and interim maintenance or any of them has been ordered to be paid under section 144, the Civil Court shall take into account the sum which has been paid to, or recovered by, such person as monthly allowance for the maintenance and interim maintenance or any of them, as the case may be, in pursuance of the said order.
Enforcement of order of maintenance
Section 147 BNSS (earlier section 128 CrPC) provides the mechanisms for Enforcement of Maintenance Order. This section ensures that the orders are not merely symbolic but the claimant actually receives the money. The Section states that:
A copy of the order of maintenance or interim
maintenance and expenses of proceedings, as the case may be, shall be given without payment to the person in whose favour it is made, or to his guardian, if any, or to the person to whom the allowance for the maintenance or the allowance for the interim maintenance and expenses of proceeding, as the case may be, is to be paid; and such order may be enforced by any Magistrate in any place where the person against whom it is made may be, on such Magistrate being satisfied as to the identity of the parties and the non-payment of the allowance, or as the case may be, expenses, due.
Failure to pay Maintenance
If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for recovery, and may sentence such person to imprisonment for a term which may extend to one month or until payment if made.
Critical Analysis Between Section 125 CrPC and Section 144 BNSS
Section 144 BNSS still backs Section 125 CrPC but with a more inclusive and clarified framework. Both the sections work on the same core objectives, categories and requirements.
The major change is the omission of the word “MINOR”.
Earlier Section 125 CrPC sub section 1(b) – “his legitimate or illegitimate minor child, whether married or not, unable to maintain itself” included the word minor but Section 144 BNSS sub section 1(b) “his legitimate or illegitimate child, whether married or not, unable to maintain itself”omits the word minor, this means the legislature has now allowed the legitimate or illegitimate child, irrespective of achieving the age of majority to approach the Courts for grant of maintenance (which was earlier restricted for only minor child) if that person is unable to maintain itself. This is considered one of the major change in both the sections and is also a major expansion of rights.
Section 144 BNSS creates more clearer timelines with better enforcement mechanisms.
The procedural continuity with Structural Change has been made by changing the Section numbers :
- Section 125 CrPC is now Section 144 BNSS discusses Order for maintenance of wives, children and parents.
- Section 126 CrPC is now Section 145 BNSS discusses Procedure for Maintenance
- Section 127 CrPC is now Section 146 BNSS discusses Alternation allowance.
- Section 128 CrPC is now Section 147 BNSS discusses Enforcement of order of maintenance.
Landmark Supreme Court Judgments
(i) Mohd. Ahmed Khan v. Shah Bano Begum (1985)
In this landmark judgement , The hon’ble Supreme Court held that Maintenance Law is secular in nature and applies irrespective of religion.
(ii) Bhuwan Mohan Singh v. Meena (2014)
In this judgement, it was held that Maintenance is not a charity but a right and husband cannot escape the liability.
(iii) Rajnesh v. Neha (2021)
One of the recent judgements regarding maintenance. It laid down guidelines for fixing maintenance and the parties must file a comprehensive affidavit disclosing their assets, income, expenditure, and liabilities in a standardized format.
(iv) Chaturbhuj v. Sita Bai (2008)
In this case, The Court held that inability to maintain does not mean absolute destitution. Even if a wife earns, she may still be entitled if income is insufficient.
(v) Savitaben Somabhai Bhatiya v. State of Gujarat (2005)
In this case it was held that only a lawfully wedded wife is entitled to maintenance. The scope of maintenance can’t be enlarged to women who are treated as wives but not legally married.
(vi) Kirtikant D. Vadodaria v. State of Gujarat (1996)
The Hon’ble Supreme Court held that clarified the scope of “parents” and emphasized moral and legal duty towards parents, concluding that “mother” refers specifically to the natural mother.
Conclusion
The change from Section 125 of the Code of Criminal Procedure (CrPC) to Sections 144-147 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 marks an evolutionary change in the system. BNSS largely withholds the core principles of maintenance law, which include social justice, prevention of destitution and vagrancy, but with a more effective, clearer and speedy process. BNSS has introduced minute but significant changes by reflecting a careful legislative balance between continuity and reform and enabling the courts with more clarity and allowing them to render the judgments with more consistency and equity. Maintenance law is a gender neutral and secular law provided to ensure social justice to the dependent and ensure he gets the maintenance amount that is essential for the basic and standard living.
The structural and procedural framework under the Maintenance Law with respect to Sections 145 to 147 remains the same and continues to reflect efficiency, ensuring accessibility, flexibility, and enforceability of maintenance orders. But even after these advancements, the framework still faces certain challenges, including the loophole of standardised guidelines and limited recognition of the concept of live-in partners which makes the law though progressive but not fully comprehensive.
Ultimately, the BNSS reinforces the idea that maintenance is not a matter of charity, but a legal and moral obligation grounded in dignity and equity. Maintenance is a right of the dependent and if the providing person has sufficient means then he must fulfil his moral duty. Further the practical implementation and judicial interpretation of the law will decide the true reform but this law is yet to evolve as it reflects both continuity and possibility.
References
- Section 125 CrPC Equivalent in BNSS: Comprehensive Maintenance Guide by JuriGram. It can be assessed via:
https://jurigram.com/advocates/resources/new-laws/section-125-crpc-equivalent-in-bnss
- Maintenance Under Section 125 CrPC / Section 144 BNSS – Complete Legal Analysis by G.M. Rao Advocate. It can be accessed via:
https://gmrao.in/blog/maintenance/maintenance-bnss
- Maintenance Under BNSS, Omission Of Word ‘Minor’, A Major Change by Sumeet Tahilramani. It can be accessed via:
https://www.livelaw.in/articles/maintenance-under-bnss-omission-word-minor-major-change-295467
- Interim Maintenance and Emergency Relief: Understanding Provisions under BNSS 2023 by B&B Associates LLP. It can be accessed via:
- Section 144 of BNSS by Sheokond Legal. It can be accessed via:
- Section 125 CrPC by iPleaders. It can be accessed via:
https://blog.ipleaders.in/analysis-scope-revision-section-125-crpc/
- Maintenance under Section 144 of Bharatiya Nagarik Suraksha Sanhita (BNSS) by LawBhoomi. It can be accessed via:
https://lawbhoomi.com/maintenance-under-section-144-of-bharatiya-nagarik-suraksha-sanhita/
- Maintenance under Section 144 of Bharatiya Nagarik Suraksha Sanhita, 2023: A Complete Guide by LegalKart. It can be accessed via:
- India Code. It can be accessed via: https://www.indiacode.nic.in/
Indian Kanoon. It can be accessed via: https://www.indiacode.nic.in/
