This article is for educational and legal awareness purposes only. It does not constitute legal advice or solicitation. Please consult a qualified advocate for advice on specific legal matters.
Introduction
The right to maintenance is one of the most significant protections available under Indian criminal procedure law. Section 125 of the Code of Criminal Procedure, 1973 (CrPC) has served for decades as a secular, religion-neutral remedy enabling wives, children, and parents who are unable to maintain themselves to claim financial support from persons who have sufficient means but neglect or refuse to provide it. With the enactment of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which came into force on 1 July 2024, Section 125 CrPC has been replaced by Section 144 BNSS. This article examines both provisions, the key differences introduced by the new law, the procedure for claiming maintenance, and landmark Supreme Court decisions that have shaped this area of law.
Who Can Claim Maintenance Under Section 125 CrPC
Section 125 CrPC empowered a Magistrate of the First Class to order maintenance for the following categories of dependants:
- Wife — A wife who is unable to maintain herself. The term “wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
- Minor children — Legitimate or illegitimate minor children, whether married or not, who are unable to maintain themselves.
- Major children with disability — Legitimate or illegitimate children (not being married daughters) who have attained majority but are unable to maintain themselves by reason of any physical or mental abnormality or injury.
- Parents — Father or mother who is unable to maintain himself or herself.
The essential conditions are twofold: (a) the person against whom the claim is made must have sufficient means, and (b) the claimant must be unable to maintain himself or herself. The expression “unable to maintain herself” does not require absolute destitution — the test, as the Supreme Court clarified in Chaturbhuj v. Sita Bai (2008) 9 SCC 316, is whether the wife can maintain herself in the manner she was accustomed to in her matrimonial home.
Section 144 BNSS — The Replacement Provision
Section 144 of the BNSS retains the fundamental structure and purpose of Section 125 CrPC but introduces certain notable changes. The categories of claimants — wife, children, and parents — remain the same, and the provision continues to be secular in nature, applicable to persons of all religions.
Key Changes from Section 125 CrPC to Section 144 BNSS
1. Removal of “Minor” for Children
The most significant textual change is the omission of the word “minor” from Section 144(1)(b). Under CrPC Section 125(1)(b), maintenance could be ordered for a “legitimate or illegitimate minor child.” Section 144(1)(b) of the BNSS simply refers to a “legitimate or illegitimate child” without the qualifier “minor.” This potentially expands the scope of maintenance obligations towards children, particularly male children who have attained majority but are unable to maintain themselves — for instance, those pursuing higher education or facing unemployment. The full interpretive implications of this change are still being worked out by courts.
2. Change in Language Regarding Female Children
In the first proviso, the language has shifted from “father of a minor female child” (CrPC) to “father of a female child” (BNSS), removing age-specific terminology while retaining the substance of the provision regarding maintenance until the daughter attains majority.
3. Retained Features
The interim maintenance provisions, the 60-day timeline for disposal of interim applications, the enforcement mechanism through warrants and imprisonment, and the Magistrate’s discretionary powers all remain substantively unchanged. The maximum imprisonment for non-compliance continues to be one month for each month’s unpaid allowance.
Procedure for Filing a Maintenance Application
A maintenance application under Section 144 BNSS (formerly Section 125 CrPC) is filed before the Magistrate of the First Class or, where established, the Family Court.
Jurisdiction
The application may be filed in the court having jurisdiction where:
- The respondent (person against whom maintenance is claimed) resides, or
- The respondent last resided with the applicant, or
- The applicant resides at the time of filing (in certain jurisdictions, for convenience of the wife).
Court Fees and Documentation
The application is chargeable with a nominal court fee. The applicant should file supporting documents including:
- Proof of relationship (marriage certificate, birth certificate)
- Evidence of the respondent’s income and means (salary slips, bank statements, property documents, income tax returns)
- Evidence of the applicant’s inability to maintain herself/himself
- Medical records, if disability or illness is a factor
- Details of any previous maintenance orders under other statutes
Process After Filing
Upon filing, the court issues notice to the respondent. Both parties are given the opportunity to present evidence. Following the Supreme Court’s guidelines in Rajnesh v. Neha (2021) 2 SCC 324, both parties must file an Affidavit of Disclosure of Assets and Liabilities in a standardised format.
Interim Maintenance
Both Section 125 CrPC and Section 144 BNSS provide for interim maintenance during the pendency of proceedings. The Magistrate may order the respondent to pay a monthly allowance for interim maintenance and expenses of proceedings. The statute directs that applications for interim maintenance shall, as far as possible, be disposed of within sixty days from the date of service of notice on the respondent.
This provision is critical because maintenance proceedings can take considerable time, and the applicant — often a wife or minor child — should not be left without financial support during the litigation.
Quantum of Maintenance — How Courts Determine the Amount
There is no fixed formula prescribed by law for calculating maintenance. Courts exercise discretion based on the facts of each case, considering the following factors:
- Income and earning capacity of the respondent — including salary, business income, rental income, and income from investments. The term “sufficient means” extends beyond actual income to earning capacity.
- Reasonable needs of the applicant — food, shelter, clothing, medical expenses, and education of children.
- Standard of living — the lifestyle the applicant was accustomed to during the marriage.
- Number of dependants — other persons the respondent is legally obligated to maintain.
- Respondent’s own reasonable expenses — the court must ensure the maintenance order does not render the respondent destitute.
- Health and disability — serious illness or disability of either party is a relevant consideration.
- Property and assets of both parties — as held in Shail Kumari Devi v. Krishan Bhagwan Pathak (2008) 9 SCC 632, the wife’s own property and income sources must also be taken into account.
The Supreme Court in Rajnesh v. Neha emphasised that a careful and just balance must be maintained between all factors while awarding reasonable and realistic maintenance — neither so high as to be unbearable for the respondent, nor so nominal as to fail the applicant’s basic needs.
Enforcement of Maintenance Orders
If the respondent fails to comply with a maintenance order without sufficient cause, the Magistrate may:
- Issue a warrant for recovery — levying the amount due in the manner provided for levying fines under criminal law.
- Impose imprisonment — for a term which may extend to one month for each month’s unpaid allowance, or until payment is made, whichever is sooner.
- Order attachment of property — the court can direct attachment of the respondent’s property or income sources.
A warrant for recovery must be issued within one year from the date the amount became due. In cases of continued non-compliance, the Magistrate can impose repeated terms of imprisonment for each month of default, subject to the court’s discretion.
Landmark Supreme Court Decisions
Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945
In this landmark 1985 decision, the Supreme Court held that Section 125 CrPC applies to all women irrespective of religion, including Muslim women, even after divorce. The Court ruled that a divorced Muslim woman is entitled to claim maintenance from her former husband if she is unable to support herself, including beyond the iddat period. This decision affirmed the secular character of Section 125. Parliament subsequently enacted the Muslim Women (Protection of Rights on Divorce) Act, 1986, though later judicial developments have established that Muslim women can seek maintenance under Section 125 CrPC alongside the 1986 Act.
Chaturbhuj v. Sita Bai, (2008) 9 SCC 316
The Supreme Court held that maintenance under Section 125 CrPC is a measure of social justice, specially enacted to protect women and children, falling within the constitutional sweep of Article 15(3) reinforced by Article 39. The Court clarified that “unable to maintain herself” does not require absolute destitution — where the personal income of the wife is insufficient to maintain the standard of living she was accustomed to, she can claim maintenance.
Shail Kumari Devi v. Krishan Bhagwan Pathak, (2008) 9 SCC 632
This decision established that maintenance can be awarded either from the date of the order or from the date of the application, and that an express order is necessary if maintenance is to be awarded from the date of application. The Court also held that the wife’s own property and income sources must be considered while determining quantum.
Rajnesh v. Neha, (2021) 2 SCC 324
Decided on 4 November 2020, this is the most comprehensive judicial pronouncement on maintenance law. The Supreme Court, through Justice Indu Malhotra, framed guidelines covering six critical areas:
- Overlapping jurisdictions — courts must take into account maintenance awarded in prior proceedings under other enactments to avoid conflicting or duplicative orders.
- Interim maintenance — must be awarded promptly to prevent hardship during pendency.
- Criteria for quantum — a detailed, non-exhaustive list of factors including income, assets, liabilities, standard of living, and dependants.
- Date of award — maintenance should be granted from the date of filing the application, not the date of the order.
- Affidavit of Disclosure — mandatory standardised disclosure of assets and liabilities by both parties in all maintenance proceedings across the country.
- Enforcement — specific directions for enforcement under applicable statutes including Section 128 CrPC, Section 28A of the Hindu Marriage Act, 1955, and Section 20(6) of the Protection of Women from Domestic Violence Act, 2005.
Bhuwan Mohan Singh v. Meena, AIR 2014 SC 2875
The Supreme Court held that Section 125 CrPC was conceived to alleviate the “agony, anguish, and financial suffering” of a woman who has left her matrimonial home. The Court emphasised that courts must not grant adjournments liberally in maintenance proceedings and must be sensitive to the financial hardship of the applicant during prolonged litigation.
Relationship with Personal Law Remedies
Section 125 CrPC (now Section 144 BNSS) is a secular provision and operates independently of personal law. However, maintenance can also be claimed under personal law statutes:
- Hindu Adoptions and Maintenance Act, 1956 — Section 18 provides a Hindu wife the right to claim maintenance from her husband. There is no inconsistency between this Act and Section 125 CrPC; both can operate simultaneously.
- Muslim Women (Protection of Rights on Divorce) Act, 1986 — originally enacted to limit maintenance for divorced Muslim women to the iddat period, the Supreme Court has since clarified that this Act provides remedies in addition to, and not in derogation of, Section 125 CrPC. Divorced Muslim women can seek maintenance under both provisions.
- Protection of Women from Domestic Violence Act, 2005 — Section 20 provides for monetary relief including maintenance.
If maintenance is claimed under multiple statutes, the court deciding the later application must take into account any maintenance already awarded in an earlier proceeding, as directed in Rajnesh v. Neha.
Disclaimer: This article is intended solely for educational and legal awareness purposes. It does not constitute legal advice, advertisement, or solicitation of any kind. The information provided herein is based on statutes and judicial decisions as understood at the time of writing and may be subject to change. Readers are advised to consult a qualified advocate before taking any action based on this content. No advocate-client relationship is created by reading this article.