MAINTENANCE OF WIVES, CHILDREN AND PARENTS
Sections 144–147 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) [formerly Sections 125–128 of the Code of Criminal Procedure (CrPC)] establish a prompt, efficient, and affordable legal remedy for dependent wives, children, and parents who suffer neglect or refusal of financial maintenance from those responsible.
Enacted as secular, welfare-oriented measures, these provisions aim to combat starvation and vagrancy—factors that frequently lead to criminal behavior—by applying to all citizens regardless of religious background or personal law regimes.
The Supreme Court of India emphasizes that because these statutory rights embody fundamental social justice, they must be given a liberal interpretation to protect vulnerable family members.
Although questions historically emerged concerning the application of these universal maintenance duties to Muslims governed by personal law, the legal landscape has evolved through definitive judicial rulings and specific statutory resolutions.
1. PERSONS ENTITLED TO CLAIM MAINTENANCE
(1) Wife.
Under Section 144(1)(a) of the Bharatiya Nagarik Suraksha Sanhita (BNSS) [formerly Section 125 CrPC], a wife of any age who cannot maintain herself is legally entitled to seek maintenance from her husband, with the statutory definition of “wife” purposefully extended to include a divorced woman who has not remarried so as to prevent husbands from using arbitrary divorce to evade financial duties.
In the context of Muslim personal law, following the Shah Bano decision and the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986, the Supreme Court clarified that a Muslim husband must make a fair and reasonable provision for his divorced wife’s future beyond the iddat period, while Magistrates continue to retain jurisdiction under Section 144 BNSS to entertain and enforce maintenance claims.
Furthermore, if a divorced Muslim woman is unable to secure maintenance from her ex-husband or relatives, she can directly approach the State Wakf Board.
While establishing a maintenance claim under Section 144 BNSS generally requires proving a legally valid marriage according to personal laws, Indian jurisprudence applies a broad, social-justice-driven interpretation to protect marginalized dependents, a scope further broadened by Section 2(f) of the Protection of Women from Domestic Violence Act, 2005, which extends maintenance protections to women in live-in relationships that are “in the nature of marriage“.
(2) Child.
Under Section 144(1)(b) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), any minor child under 18 years of age—whether male or female, legitimate or illegitimate, married or unmarried—who is unable to maintain themselves has a legal right to claim maintenance from their parent.
In the case of a married minor female child, while primary support is expected from her husband, the first proviso to Section 144(1) BNSS stipulates that if the husband lacks sufficient financial means, her father is legally obligated to provide maintenance until she reaches majority.
Furthermore, under Section 144(1)(c) BNSS, major children who have passed the age of 18 remain entitled to maintenance if a physical or mental abnormality or injury prevents them from self-support.
However, this exception for adult disabled children explicitly excludes a married major daughter, whose right to support shifts entirely to her husband rather than her father.
(3) Father or mother.
Under Section 144(1) of the Bharatiya Nagarik Suraksha Sanhita (BNSS) [formerly Section 125 CrPC], parents who are unable to maintain themselves are entitled to seek maintenance from their children.
While the text primarily addresses sons, authoritative Supreme Court rulings have established that both married and unmarried daughters share this legal and social obligation equally.
The definition of “father” and “mother” extends to adoptive parents, but excludes stepmothers by default; however, courts adopt a liberal, welfare-oriented approach allowing a helpless, childless, or widowed stepmother—who lacks surviving biological children or other means of support—to claim maintenance from her stepson.
When seeking financial support, destitute parents have the flexibility to bring maintenance proceedings against any one or more of their children in the jurisdiction where those children reside.
2. PERSONS FROM WHOM MAINTENANCE CAN BE CLAIMED
Under Section 144(1) of the Bharatiya Nagarik Suraksha Sanhita (BNSS) [formerly Section 125 of the Code of Criminal Procedure (CrPC)], statutory liability to pay maintenance under specified circumstances is strictly restricted to four categories of persons: a husband, a father, a son, or a daughter.
These individuals are legally bound to support their respective dependents, namely a wife, a child, or parents.
Notably, the scope of Section 144 BNSS does not mandate or contemplate any legal liability for a mother to provide financial maintenance to her husband or her children.
3. ESSENTIAL CONDITIONS FOR GRANTING MAINTENANCE
(1) Sufficient means to maintain.
Under Section 144(1) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), an essential legal prerequisite for granting maintenance is demonstrating that the person from whom it is claimed possesses sufficient means to support their dependent wife, children, or parents.
The law interprets the concept of “means” broadly, extending it beyond tangible, visible assets such as land, property, or active formal employment.
Under established legal principles, if an individual is healthy and able-bodied, the court presumes they have the inherent physical capacity and potential earning power to meet their financial obligations and support their dependents.
(2) Neglect or refusal to maintain.
Under Section 144(1) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), establishing that the respondent has neglected or refused to provide financial support is a critical prerequisite for claiming maintenance, with the initial burden of proof falling on the claimant.
Such neglect or refusal can be either express or implied through conduct.
In marital contexts, if a husband makes it intolerable for his wife to reside in the matrimonial home, or if he takes a second wife or keeps a mistress, an offer to maintain his wife conditional upon her cohabitation is not deemed a bona fide offer, constituting legal neglect and justifying her living separately to claim maintenance regardless of personal law provisions permitting polygamy.
Ultimately, courts adopt a broad and purposive approach, interpreting “maintenance” as proper maintenance necessary to ensure a reasonable standard of living rather than restricting it to a narrow concept of basic survival.
(3) The person claiming maintenance must be unable to maintain himself or herself.
The fundamental legislative objective of Section 144 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) is to prevent vagrancy and destitution by ensuring that support is provided to individuals who cannot maintain themselves.
Consequently, under Section 144(1)(a) BNSS, proving neglect or refusal by a husband is not alone sufficient to secure maintenance; it must also be shown that the wife is unable to support herself, though explicit formal pleading of this phrase is not strictly mandatory.
Where an educated and healthy wife possesses the capacity to earn but voluntarily refrains from working, courts hold that while her entitlement to claim maintenance remains intact, her choice not to earn may reduce the final awarded amount.
Ultimately, the quantum awarded must ensure she can maintain herself without experiencing a drastic drop from the lifestyle and status she enjoyed in her matrimonial home.
(4) Special requirements where maintenance is claimed by the wife.
Under Section 144(4) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), a wife’s claim to maintenance is subject to specific statutory conditions, including that she must not be living in adultery, which requires an ongoing, quasi-permanent relationship rather than a single act.
Furthermore, a wife cannot be denied maintenance for living separately if she has sufficient justification, such as her husband contracting a second marriage, keeping a mistress, being convicted of bigamy, or subjecting her to mental cruelty by questioning her chastity or denying child paternity.
While findings of desertion by a civil court bind criminal courts, civil decrees prevail only when the issues before both courts are identical; hence, non-compliance with a civil restitution order or a civil court’s denial of maintenance does not automatically extinguish a wife’s right to maintenance in criminal proceedings.
Lastly, while living separately by mutual consent bars maintenance, a divorced wife’s separate residence arises from a legal change in marital status rather than mutual agreement, meaning she retains her right to claim maintenance unless she explicitly relinquished that right during mutual consent divorce proceedings.
4. JURISDICTION OF MAGISTRATES
(1) Magistrates empowered to deal with maintenance proceedings.
Under Sections 144 through 147 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), authority to adjudicate maintenance petitions is strictly restricted to Judicial Magistrates of the First Class, rendering any maintenance order passed by an unauthorized Magistrate legally void pursuant to Section 507(g) BNSS.
Because maintenance proceedings under criminal procedure are inherently civil in nature, the magistrate’s court retains inherent jurisdiction to restore a dismissed maintenance application filed by a wife.
Furthermore, while an applicant is fully entitled to invoke Section 144 BNSS regardless of available civil remedies, any clear and conclusive finding established by a competent civil court on relevant issues must be honored and cannot be ignored by the criminal court.
(2) Territorial jurisdiction.
Under Section 145(1) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), proceedings for maintenance under Section 144 BNSS feature broad territorial jurisdiction, allowing an applicant to file in any district where the respondent is located, where either spouse resides, where the couple or mother of an illegitimate child last cohabited, or where the respondent’s parents reside.
Recognizing that deserted wives are frequently forced to relocate far from their former homes, the law explicitly permits filing in the district where the wife resides at the time of application to ensure convenient access to justice.
Legally, while the term “resides” requires a genuine intention to stay rather than a brief or casual visit, “last resided” covers the final shared dwelling whether temporary or permanent, and the term “is” offers an even broader scope by simply requiring the respondent’s actual physical presence in the district when the petition is submitted.
5. PROCEDURE
The legal procedure under Section 144 and Section 145 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) governs maintenance applications without imposing a period of limitation for initiating a claim.
Although an application should ideally state that the applicant cannot self-maintain, that the respondent has sufficient means, and that neglect occurred, courts will not dismiss a wife’s petition on a mere technical omission of these specific words.
Because maintenance proceedings are quasi-civil and recorded under summons case procedures, the standard of proof rests on the preponderance of probabilities, requiring evidence to be taken before the respondent or their advocate.
If a respondent willfully avoids summons, the court may rule ex parte; however, the respondent may apply to set aside the order for good cause within three months from the date they gained actual knowledge of it.
Furthermore, because maintenance inquiries do not constitute criminal trials or result in convictions or acquittals, the doctrine of double jeopardy does not apply, allowing subsequent maintenance petitions to be maintainable even if a previous petition was dismissed following a settlement or compromise.
6. MAINTENANCE ORDER
Under Section 144 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), a First Class Judicial Magistrate possesses the discretionary authority to issue an order directing a respondent to pay a monthly maintenance allowance upon satisfaction of necessary conditions and evidence.
The exact quantum of maintenance is determined based on case specific facts, aiming to secure a reasonable standard of living for the applicant—one that is neither luxurious nor penurious, but consistent with the family’s status.
To arrive at an equitable figure, the court evaluates the applicant’s independent income alongside the respondent’s total earnings and existing financial commitments.
Furthermore, under the second and third provisos of Section 144(1) BNSS, the Magistrate can grant interim maintenance and litigation costs during pending proceedings, with a target to dispose of such applications within 60 days of serving notice on the respondent.
Finally, pursuant to Section 144(2) BNSS and established Supreme Court guidelines, courts generally exercise their discretion to make maintenance orders effective from the date of application rather than the date of the final order.
7. ENFORCEMENT OF THE ORDER OF MAINTENANCE
Under Section 144(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), if a person fails to pay monthly maintenance or legal expenses without sufficient cause, the Magistrate can issue a warrant to recover the dues in the same manner as levying fines, and may sentence the defaulter to imprisonment for up to one month per unpaid monthly allowance or until payment is made.
Where a husband conditions maintenance on cohabitation, a wife may legally refuse if valid grounds exist—such as the husband contracting another marriage or keeping a mistress—though executing courts cannot re-agitate merits already settled during the primary proceedings.
Furthermore, the Supreme Court clarifies that imprisonment acts solely as a mode of enforcement rather than a satisfaction of debt, meaning jail time does not clear unpaid liabilities; additionally, arrest warrants are typically resorted to after property attachment—including attachment of future salary—fails.
To streamline enforcement, Section 147 BNSS mandates supplying a copy of the order free of cost to the beneficiary and allows any Magistrate anywhere in India to enforce the maintenance order upon verifying party identities and non-payment, expanding enforcement beyond the original court’s territorial boundaries.
8. ALTERATION OF ALLOWANCE
Under Section 146(1) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), a Magistrate is empowered to alter, modify, or adjust a monthly allowance for maintenance or interim maintenance upon proof of a change in circumstances of either the party receiving or paying the allowance.
Additionally, pursuant to Section 146(2) BNSS, if a competent civil court renders a decision affecting maintenance, the Magistrate must vary the original order accordingly, with such modifications taking prospective effect.
Regarding the exact date from which an enhancement in maintenance takes effect—an issue previously debated between High Courts—the Supreme Court clarified that the Magistrate holds full discretion to grant the increased amount either from the date of application or from the date of the order itself, while noting that a husband’s personal commitments may not necessarily preclude an enhancement.
9. CANCELLATION OF THE ORDER OF MAINTENANCE
Under Section 144(5) and Section 146 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), a Magistrate must cancel an existing maintenance order upon proof of specific statutory grounds.
For a married wife, cancellation is mandatory if she is living in adultery, refuses to cohabit with her husband without sufficient cause, or lives separately by mutual consent.
Additionally, pursuant to Section 146(2) BNSS, a Magistrate must cancel or vary a maintenance order if required by a decision of a competent civil court.
For a divorced woman, Section 146(3) BNSS dictates cancellation if she remarries (effective from her remarriage date), if she voluntarily surrenders her maintenance rights post-divorce, or if she receives a full customary or personal law divorce settlement.
In cases involving customary payments, established judicial precedent clarifies that payment of mere “illusory” or nominal sums will not discharge a husband’s maintenance obligation unless the amount constitutes a fair and reasonable substitute for ongoing maintenance allowance.
10. MAINTENANCE ORDER TO STAND TILL VACATED OR CANCELLED
Section 144 BNSS serves as a protective measure to safeguard the weaker party in a marriage.
Consequently, once a maintenance order is granted against a deserting husband, it remains valid and continuously enforceable until formally modified or set aside by a higher court, or legally varied or vacated under Sections 144(4), 144(5), or 146 BNSS.
Furthermore, informal defenses—such as claiming temporary cohabitation during the intervening period or an out-of-court compromise—are legally insufficient to block enforcement, ensuring the order stays binding until officially discharged by a court.
11. CIVIL COURT TO TAKE NOTE OF THE MAINTENANCE ORDER MADE UNDER SECTION 144 BNSS
Under Section 146(4) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), when a civil court issues a decree for the recovery of maintenance or dowry, it is mandatory to take into account any monthly allowance for maintenance or interim maintenance already paid to or recovered by the beneficiary under Section 144 BNSS.
This statutory requirement ensures that financial amounts recovered through criminal court proceedings under Section 144 BNSS are duly credited and adjusted in parallel civil actions, preventing duplicate financial liability for the paying party while upholding overall equity across civil and criminal decrees.