Maintenance
Wednesday, January 29, 2025 10:21 PM
Maintenance refers to financial support for a person to sustain and avail basic amenities of life
like food, clothing, shelter, etc. There is no fixed amount for maintenance. The court
determines it after considering certain factors like the needs of the dependent and the means
of the person required to provide maintenance. It may be paid every month or in a lump sum
at once.
Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023
Section 144 of Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 (earlier Section 125 CrPC)
ensures financial support for dependents (wives, children, and parents) who cannot sustain
themselves, irrespective of gender or religion.
Maintenance to Wife:
Section 144(1)(a) lays down the law for maintaining one’s wife. Explanation (b) of this section
defines “wife” as a woman who has been divorced by, or has obtained a divorce from, her
husband and has not remarried. This broad definition aims to safeguard women and prevent
husbands from making easy divorces under personal law.
So, as per this section, even an ex-wife is entitled to claim maintenance from her husband.
However, there are certain exceptions to the wife’s right to claim maintenance. A wife cannot
claim maintenance if:
• A wife loses the right to maintenance if (Section 144(4)-(5))
• She is living in adultery
• She refuses to live with her husband without valid reason
• She and her husband mutually consent to live separately
• The court can cancel the order if any of these conditions are proven.
• If the wife remarries after the declaration of divorce, she also loses her right to be
maintained by her former husband.
The husband has a legal obligation to provide for his wife’s maintenance, but apart from
making sure that the husband has sufficient means to provide maintenance to the wife, the
court also needs to determine whether the wife is capable of maintaining herself after
separation.
Mohd. Ahmed Khan v. Shah Bano Begum[1]:
In this case, the Supreme Court recognised the right of Muslim women to maintenance after
the Iddat period since personal laws cannot supersede CrPC (now BNSS), which is applied to all
citizens regardless of their faith, and laid down that a divorced Muslim woman who is not
capable of maintaining herself is entitled to maintenance from her former husband until she
gets remarried.
This judgement was highly criticized, and the Muslim Women (Protection of Rights on Divorce)
Act of 1986 came as a consequence to nullify this judgement.
Daniel Latifi v. Union of India[2]
The constitutional validity of the said Act was questioned in this case. The Supreme Court,
while upholding the Act, ruled that reasonable and fair provisions include provision for the
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while upholding the Act, ruled that reasonable and fair provisions include provision for the
future of the divorced wife (including maintenance), and it does not confine itself to the iddat
period only. This judgment is the final case law in this regard till now.
Maintenance of Children:
Section 144(1)(b) and (c) lays down the law for the maintenance of one’s children. Explanation
(a) of this section defines “minor” as a person who, under the provisions of the Indian Majority
Act of 1875, is deemed not to have attained his majority, i.e. the age of 18 years.
Section 144(1)(b) entitles all minor children, whether legitimate, illegitimate, married or
unmarried, to maintenance from their parents.
Section 144(1)(c) entitles a legitimate or illegitimate major child (not being a married daughter)
to maintenance where he or she is unable to maintain himself or herself because of mental or
physical abnormality or injury.
The Judicial Magistrate may order the father of a married minor female child referred to in
Section 144(1)(b) to make such allowance until she attains her majority if he is satisfied that
the husband of such minor does not possess sufficient means to maintain her.
Maintenance of Parents:
This section also entitles both father and mother to claim maintenance from their children. This
provision is particularly significant for aged persons because most do not have a source of
income after retirement or after attaining a certain age. In case of more than one child, parents
may seek this remedy against anyone, including a married daughter, as Indian society casts a
duty on the children to maintain the parents, and this social obligation equally applies to a
daughter.
Interim Maintenance
Section 144 also makes provisions for interim maintenance. Interim maintenance is a
temporary relief granted by the court while the application for final maintenance is pending.
This is crucial in cases where the claimant has an urgent need for financial support and cannot
wait for the conclusion of the legal proceedings. The court will consider the immediate financial
situation of the dependents and grant interim relief accordingly.
Modification or Cancellation of Maintenance (Section 146)
• Maintenance can be increased or decreased based on changes in circumstances.
• If a civil court ruling affects maintenance, the order may be modified or revoked.
• If a divorced woman:
○ Remarries → Maintenance stops from remarriage date.
○ Receives a lump sum settlement under personal law → Order is canceled.
○ Voluntarily gives up maintenance rights → Order is revoked.
Failure to Pay Maintenance (Section 144(3))
If maintenance is unpaid, the court can issue a warrant for recovery.
The defaulter may be imprisoned for up to one month per unpaid installment.
A husband’s offer to maintain his wife is considered, but if he has another wife or mistress, she
can refuse to live with him.
Enforcement of Orders (Section 147)
A free copy of the maintenance order must be given to the beneficiary.
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A free copy of the maintenance order must be given to the beneficiary.
The order is enforceable across jurisdictions if identity and non-payment are confirmed.
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