Author: A. Sneha sree, Damodaram Sanjivayya national law university
To the Point
With the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, replacing the CrPC, maintenance now falls under Section 144 BNSS, which mirrors the spirit of old Section 125 CrPC. It provides a statutory right to maintenance for:
- Wives (including divorced),
- Minor legitimate or illegitimate children,
- Major children unable to maintain themselves due to physical or mental conditions,
- Father or mother.
In addition to this general law, personal statutes also govern maintenance:
- Hindu Marriage Act, 1955 (Sections 24 & 25): Interim and permanent alimony.
- Hindu Adoptions and Maintenance Act, 1956: Ongoing spousal and parental obligations.
- Muslim Women (Protection of Rights on Divorce) Act, 1986.
- Special Marriage Act, 1954: For inter-faith marriages.
Alimony, distinct from monthly maintenance, is usually a one-time lump-sum payment post-divorce, under civil matrimonial laws.
Key judicial factors:
- Financial status of parties.
- Marital standard of living.
- Age, health, and employment capability.
- Custodial and dependent responsibilities.
Interim maintenance can be granted while proceedings are pending. The Rajnesh v. Neha guidelines remain applicable post-BNS, requiring income affidavits from both parties.
Non-payment of maintenance under Section 144 BNSS invites penalties, including imprisonment or property attachment.
These provisions ensure that marital dissolution does not deprive dependents of their financial dignity, maintaining parity with constitutional values under Articles 14, 15, and 21.
Abstract
Maintenance and alimony serve as critical financial support mechanisms for dependents, especially women and children, following separation or divorce. With the advent of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, and the Bharatiya Nyaya Sanhita (BNS), 2023, the legal framework for maintenance has been realigned while preserving key safeguards. Provisions akin to Section 125 CrPC now fall under Section 144 of the BNSS, continuing to ensure support to wives, parents, and children who lack sufficient means. Maintenance under personal laws—Hindu, Muslim, Christian, and secular statutes like the Special Marriage Act—also remains active. Alimony, distinct from maintenance, is often a lump-sum post-divorce settlement under civil laws like the Hindu Marriage Act. The judiciary continues to evolve standards based on earning potential, lifestyle, and marital conduct. This updated framework upholds socio-economic justice, ensures dignity of dependents, and provides clarity and enforceability in cases of marital breakdown.
Use of legal Jargon
The legal framework around maintenance under the new BNSS, 2023 continues to classify it as a statutory civil obligation enforced through quasi-criminal proceedings under Section 144 BNSS. This provision applies irrespective of personal law or religion and is designed to curb destitution, vagrancy, and promote economic sustenance.
Under Section 144 BNSS:
- The obligee (dependent wife, parent, or child) may file a petition seeking periodic maintenance.
- The obligor (usually husband/child) is bound to maintain dependents lacking independent means.
- The Magistrate First Class retains jurisdiction and may pass orders after summary inquiry.
For matrimonial relief, the Hindu Marriage Act, 1955, provides:
- Section 24: Interim maintenance during proceedings.
- Section 25: Permanent alimony, post-judgment.
These are civil reliefs enforceable through civil execution mechanisms under the CPC, including attachment of property, salary deductions, and even execution of decrees.
In the Muslim context, the Muslim Women (Protection of Rights on Divorce) Act, 1986, read with Danial Latifi case law, mandates fair and reasonable provision beyond the iddat period, treating it as a compensatory obligation.
Courts require affidavits of income and expenditure, in line with Rajnesh v. Neha (2020), to determine the quantum of maintenance using a need-based and capacity-oriented model.
Failure to pay invites coercive remedies—including warrants of arrest or civil contempt. Legal representation, mediation, and conciliation mechanisms are also actively encouraged to settle disputes.
The BNSS reflects continuity with modernization, ensuring procedural clarity, constitutional alignment, and a gender-neutral tone in enforcing support obligations.
Proof
Establishing entitlement to maintenance under the new criminal and civil frameworks requires the claimant to submit strong, verifiable evidence. The standard of proof is preponderance of probabilities, not beyond reasonable doubt.
- Marriage/Subsisting Relationship:
- Valid marriage certificate or customary proof.
- For live-in partners: shared accommodation, joint bank accounts, and social acknowledgment.
- Dependence/Inability to Maintain:
- Affidavits showing unemployment, ill health, or lack of income/property.
- Proof of education level, age, or disability (for children/parents).
- Financial Status of the Opposite Party:
- Income tax returns (ITRs), salary slips, Form 16, business records.
- Proof of assets: cars, real estate, luxury spending, etc.
- Lifestyle Evidence:
- Expenses, school/college fees, travel receipts, housing costs.
- Quantum Calculation:
- Expenditure/income affidavits as mandated in Rajnesh v. Neha.
- Court-ordered disclosure under oath.
- Non-cohabitation or Desertion (if relevant):
- FIRs, medical records, letters, or witness statements.
All parties are typically directed to submit standardized income and expenditure affidavits. Failure to comply may result in adverse inference or dismissal of claims. Fraudulent concealment of income may reduce or nullify the grant.
Thus, procedural accuracy and evidence are central to ensuring maintenance and alimony are fairly awarded and sustained.
Case Laws
- Rajnesh v. Neha (2021) 2 SCC 324
A landmark Supreme Court decision which laid down procedural guidelines for all maintenance cases. It mandated filing of affidavits of income, expenditure, assets, and liabilities to curb delays and bring transparency. It applies across all religions and statutes. - Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945
The Court ruled that a divorced Muslim woman is entitled to maintenance under the general law (now Section 144 BNSS), emphasizing secular protection beyond personal law. It marked a turning point in uniform civil remedies. - Danial Latifi v. Union of India, AIR 2001 SC 3958
Clarified that a divorced Muslim woman must be given fair and reasonable provision during and beyond the iddat period, interpreting the 1986 Act in a constitutionally valid manner. It extended maintenance principles within Islamic law. - Bhuwan Mohan Singh v. Meena, (2015) 6 SCC 353
The SC held that justice delayed in maintenance amounts to justice denied. Maintenance is not a charity but a legally enforceable duty, forming part of right to life under Article 21. - Chaturbhuj v. Sita Bai, (2008) 2 SCC 316
The husband’s physical ability to earn is enough to presume liability. He cannot shirk maintenance merely by being unemployed or evasive. - Sunita Kachwaha v. Anil Kachwaha (2014) 16 SCC 715
Held that the wife’s minor income does not absolve the husband’s duty if it’s insufficient for self-support. - Savitaben Somabhai Bhatiya v. State of Gujarat (2005) 3 SCC 636
A woman in an invalid marriage is not entitled under general law unless she can prove lack of knowledge of invalidity. Protects women against fraud in marriage.
These rulings collectively shape the modern doctrine of maintenance as a constitutional, humanitarian, and enforceable financial right.
Conclusion
The recent criminal law overhaul through the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, has preserved and modernized the framework of maintenance, ensuring continuity with stronger procedural safeguards. Section 144 of the BNSS replaces Section 125 CrPC but retains its broad application to wives, children, and parents in need of financial support.
Civil statutes continue to govern alimony and long-term obligations. Judicial interpretations, particularly Rajnesh v. Neha, have significantly streamlined adjudication, ensuring fair disclosure and faster justice.
Importantly, courts are now shifting from viewing maintenance as a moral obligation to treating it as a legal right integral to the right to dignity (Article 21). They increasingly expect capable spouses to shoulder responsibility, regardless of gender.
Nonetheless, issues like misuse, underreporting of income, and enforcement delays persist. A uniform civil code on maintenance could bridge gaps among personal laws and create consistency.
The new legal era thus reflects a harmonized balance of tradition and reform, anchoring maintenance and alimony as constitutional, economic, and social guarantees in post-marital lives.
FAQs
1. What is the new provision for maintenance under India’s criminal law reforms?
Under the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, Section 144 replaces the old Section 125 of the CrPC, providing for maintenance to wives, children, and dependent parents. It ensures that individuals who cannot maintain themselves are not left destitute due to marital separation or neglect.
2. Can a husband claim maintenance or alimony from his wife?
Yes. While Section 144 BNSS primarily protects dependent wives and parents, husbands can claim maintenance or alimony under Section 24 or 25 of the Hindu Marriage Act or under the Special Marriage Act, if they are unable to support themselves due to valid reasons like illness or disability.
3. Is maintenance applicable in live-in relationships?
Yes. If the live-in relationship is akin to marriage and meets the criteria laid down by the courts (like duration, cohabitation, and public recognition), a woman may be entitled to maintenance under domestic violence laws or by invoking Section 144 BNSS in appropriate cases.
4. Is a working woman eligible for maintenance?
Yes. Even if a woman is employed, she may still be entitled to maintenance if her earnings are insufficient to maintain the standard of living enjoyed during the marriage. Courts consider the disparity in income and financial dependency before awarding relief.
5. What if the husband refuses to pay maintenance?
If a person defaults on maintenance under Section 144 BNSS, the court may order recovery through property attachment or arrest, ensuring enforceability of the order. Civil contempt may also be initiated in some cases.
6. How is alimony different from maintenance?
Maintenance refers to regular (usually monthly) financial support, often granted during or after separation proceedings. Alimony, typically awarded after divorce, is a one-time lump-sum settlement to help the financially weaker spouse rehabilitate.
