A wife, child or parent can claim maintenance under section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023, with no ceiling on the amount

Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), in force from 1 July 2024 in place of section 125 of the Code of Criminal Procedure, 1973 (CrPC), lets a Magistrate of the first class order a monthly allowance for a wife, child or parent unable to maintain themselves, at a rate the text leaves to the Magistrate, with interim maintenance to be decided, as far as possible, within 60 days of service of notice. It runs beside maintenance under other laws, with adjustment between them, and since Rajnesh v. Neha (4 November 2020) both sides file an affidavit of assets and liabilities.

What did section 125 of the Code of Criminal Procedure become?

The Bharatiya Nagarik Suraksha Sanhita, 2023 (Act 46 of 2023) repeals the Code of Criminal Procedure, 1973 by section 531(1), and the India Code metadata record for the Sanhita gives 1 July 2024 as its enforcement date. Chapter X now carries the remedy in four sections: section 144 (formerly section 125) for the order, section 145 (section 126) for procedure and venue, section 146 (section 127) for alteration and cancellation, and section 147 (section 128) for enforcement. The Family Courts Act, 1984 and the Protection of Women from Domestic Violence Act, 2005 (the 2005 Act) still speak, in the text published on India Code, of Chapter IX of the old Code and of its section 125; section 8 of the General Clauses Act, 1897 reads those references as references to the provisions of the Sanhita that replaced them.

Who may claim, and against whom?

Section 144(1) names four claimants, each against a person "having sufficient means" who "neglects or refuses to maintain" them:

• a wife unable to maintain herself;
• a legitimate or illegitimate child, married or not, unable to maintain itself;
• a legitimate or illegitimate child who has attained majority, other than a married daughter, where a physical or mental abnormality or injury leaves the child unable to maintain itself; and
• a father or mother unable to maintain himself or herself.

Two features of the text matter. The Explanation to sub-section (1) makes "wife" include a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried, so the remedy does not end with the marriage. A first proviso lets the Magistrate order the father of a female child to pay until she attains majority, if her husband, where she is married, lacks sufficient means.

The wife's claim has its own bars. Under section 144(4) she receives no allowance if she is living in adultery, refuses without sufficient reason to live with her husband, or lives separately from him by mutual consent, and section 144(5) requires the Magistrate to cancel an order on proof of any of those facts. The Explanation to the proviso on a husband's offer to maintain her at home treats his second marriage, or keeping a mistress, as just ground for her refusal.

How much, and from when?

The text sets no ceiling and no formula. The Magistrate orders payment "at such monthly rate as such Magistrate thinks fit". Section 144(2) makes the allowance payable from the date of the order or, "if so ordered", from the date of the application.

In Rajnesh v. Neha (Criminal Appeal 730 of 2020, 4 November 2020) the Supreme Court set out the factors that guide the figure: the status of the parties, the reasonable needs of the wife and dependent children, her income and qualifications, the standard of living in the matrimonial home and any employment given up for the family, set against the husband's actual income, expenses, dependants and liabilities. The Court said there is no "straitjacket formula". On the date, the Court directed that maintenance "in all cases will be awarded from the date of filing the application".

What is interim maintenance, and what is the 60-day direction?

The second proviso to section 144(1) lets the Magistrate, while the main proceeding is pending, order a monthly allowance for interim maintenance and "the expenses of such proceeding which the Magistrate considers reasonable". The third proviso adds that an application for interim maintenance and expenses "shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application". The Sanhita attaches no consequence to a missed date.

In Rajnesh the Court recorded that interim applications often stay pending for several years, the stated reason for the affidavit procedure below. Section 24 of the Hindu Marriage Act, 1955 carries the same sixty-day proviso.

What does the affidavit of assets and liabilities require?

Rajnesh directs that an Affidavit of Disclosure of Assets and Liabilities in the form annexed to the judgment be filed by both parties "in all maintenance proceedings" before a Family Court, a District Court or a Magistrate's court, throughout the country. Enclosure I is the form for non-agrarian deponents.

The applicant files a concise application with the affidavit. The respondent must file the reply with the affidavit within a maximum of four weeks, and the court is not to grant more than two opportunities. Where the delay is wilful and contumacious, the court may consider striking off the defence, which the judgment calls a last resort; failing a timely affidavit, it may decide on the applicant's affidavit and the pleadings.

Enclosure I asks for expenses, earlier maintenance orders and arrears, dependants, income, tax returns, three years of bank statements, assets, past transfers of property and liabilities.

What follows if the order is not obeyed?

Section 144(3) allows the Magistrate, for every breach without sufficient cause, to issue a warrant for levying the amount due in the manner provided for levying fines. If any of a month's allowance remains unpaid after the warrant is executed, the Magistrate may sentence the person to imprisonment of up to one month, or until payment if sooner made. A proviso bars a warrant unless the application to levy the amount is made within one year from the date on which it fell due. Under section 147 any Magistrate where the person ordered to pay may be can enforce the order, once satisfied of identity and non-payment.

Rajnesh adds that an order of maintenance may also be enforced as a money decree under the Code of Civil Procedure, 1908, including civil detention and attachment of property. Section 145(2) lets the Magistrate proceed ex parte where the respondent is wilfully avoiding service or wilfully neglecting to attend, and an ex parte order may be set aside for good cause on an application made within three months. Section 146 allows alteration on proof of a change in circumstances.

Which court hears the claim in Bengaluru?

Section 144 speaks of a Magistrate of the first class. In Bengaluru, as elsewhere, the forum is a Family Court where one has been established for the area. Section 7(2)(a) of the Family Courts Act, 1984 gives a Family Court the jurisdiction of that Magistrate under the maintenance chapter of the old Code, and section 8(b) removes that jurisdiction from the Magistrate in any area for which a Family Court has been established. Section 3(1)(a) requires the State Government to establish a Family Court for every city or town whose population exceeds one million.

Venue is set by section 145(1), which allows proceedings in a district where the respondent is, where he or his wife resides, where he last resided with his wife, or where his father or mother resides. Section 19(2) of the Family Courts Act bars an appeal from a Chapter IX order, though section 19(4) lets the High Court call for the record to test its correctness, legality or propriety.

How does it sit beside maintenance under other laws?

Under section 18 of the Hindu Adoptions and Maintenance Act, 1956 a Hindu wife is entitled to be maintained by her husband during her lifetime, and section 20 binds a Hindu to maintain children and aged or infirm parents. Sections 24 and 25 of the Hindu Marriage Act, 1955 give either spouse maintenance pending the proceeding and, at the decree or later, permanent alimony or maintenance that can be varied when circumstances change. Section 20(1)(d) of the 2005 Act allows maintenance for the aggrieved woman and her children "under or in addition to" an order under the old section 125, and section 36 keeps the Act in addition to other laws.

Rajnesh records that each gives an independent and distinct remedy, and directs that where successive claims are made under different statutes, the court will consider an adjustment or set-off of what earlier proceedings awarded; that the applicant must disclose the earlier proceeding and its orders; and that any modification of an earlier order is to be made in that same proceeding. Under section 146(4) a civil court making a decree for maintenance takes into account sums already paid under section 144.

What do the dates and amounts look like?

An illustration. The parties, dates and sums below are hypothetical. They apply section 144 and the direction in Rajnesh on the start date to one application.

Interim maintenance claimed in a Family Court
  3 February 2027    Application filed, prayer for payment from this date
  1 March 2027       Notice served on the husband
  30 April 2027      Sixty days from service (disposal, as far as possible)
  3 June 2027        Interim order of INR 40,000 a month, from the date of
                     the application
  Arrears at that date: 4 months x INR 40,000 = INR 1,60,000
  1 July 2027        An instalment falls due and is not paid
  By 1 July 2028     Application to levy it, within one year of the due date
  Remedy             Warrant to levy as a fine; imprisonment of up to one
                     month for the unpaid part of each month's allowance

What remains unsettled?

Three points.

The start date. Section 144(2) leaves the date of order or the date of application to the Magistrate, and Rajnesh directs the date of filing "in all cases". The Sanhita, enacted after the judgment, repeats the discretion. Whether a Magistrate under the Sanhita may still order payment only from the date of the order is not stated in the text.

Time for the affidavit. Rajnesh gives the respondent a maximum of four weeks but does not say from which event the four weeks run, whether service of notice or the first appearance.

The sixty-day direction. It binds the court only "as far as possible", and neither the Sanhita nor the Hindu Marriage Act, 1955 states what follows when the date is missed.