Maintenance in India — Legal Frameworkभरण-पोषण — कानूनी ढाँचा
Who Can Claim Maintenance?
Old Position vs Current Lawपुराना कानून बनाम नया कानून
| Aspect | Earlier Position | Current Position |
|---|---|---|
| Maintenance provision | Section 125 CrPC, 1973 | Section 144 BNSS, 2023 — in force from 1 July 2024. Same substance, new numbering. |
| Divorced Muslim wife — S.125 CrPC | Disputed — some courts held S.125 not available to divorced Muslim wife after iddat | Shah Bano (1985 SC): S.125 applies to all persons regardless of religion. Daniel Latifi (2001): 1986 Muslim Women Act must be read to ensure adequate maintenance beyond iddat. |
| Maintenance in void marriage — HMA S.25 | Conflicting HC views — many denied S.25 to wife of void marriage | 2025 INSC 197 (SC 3-judge bench): S.25 maintenance available even in void marriages. S.24 interim also available. |
| Overlapping maintenance orders | Courts took inconsistent views on adjusting/deducting overlapping orders | Rajnesh v. Neha (2021 SC): Comprehensive guidelines — overlapping orders to be adjusted; one consolidated order preferred; crediting amounts paid under one provision against another. |
| Affidavit of assets | No uniform requirement — parties often suppressed income | Rajnesh v. Neha (2021): Mandatory affidavit of assets and income by both parties at the outset of maintenance proceedings. |
| Interim maintenance timeline | No statutory timeline — often delayed for years | BNSS S.144 / Rajnesh guidelines: First maintenance order ideally within 60 days of notice; courts to expedite. |
Filing a Maintenance Application — Step by Stepभरण-पोषण आवेदन — चरण-दर-चरण
Documents Required
Claimant (Wife / Child / Parent):
Respondent (Person Paying):
Limitation & Key Points
Relevant Statutes
Landmark & Recent Judgments
Recent Developments
Frequently Asked Questions
Yes — the SC in Shah Bano Begum (1985) settled that Section 125 CrPC (now S.144 BNSS) is a secular provision applicable to all persons regardless of religion. A divorced Muslim woman unable to maintain herself can claim maintenance under S.144 BNSS. The Muslim Women (Protection of Rights on Divorce) Act 1986 was enacted in response, but Daniel Latifi (2001) held it must be read to provide adequate future maintenance, not just iddat period payment. Both routes are available.
The key factors are: (1) Income and earning capacity of the respondent — including hidden or suppressed income; (2) Needs and requirements of the claimant — rent, food, medical, education; (3) Standard of living during the marriage; (4) Assets and liabilities of both parties; (5) Number of dependants of the respondent; (6) Any independent income of the claimant. The SC in Kalyan Dey Chowdhury (2017) indicated 25% of husband's net salary as a starting benchmark — but this is not a rigid formula. Courts consider all facts.
Under S.144 BNSS — maintenance is typically awarded from the date of application, not from the date of the final order. Rajnesh v. Neha (2021) guidelines confirm that courts should award maintenance from the date of filing. Any arrears from the application date to the order date must be paid. Under HMA S.24 — pendente lite maintenance runs from the date of the application for S.24 relief. The court may, in its discretion, award maintenance from an earlier date in appropriate cases.
Yes — having some income does not automatically disentitle a wife to maintenance. The relevant question is whether her income is sufficient to maintain herself at the standard she enjoyed during the marriage. If there is a significant disparity in income between husband and wife — the court may award maintenance to bridge the gap. Under HMA S.24 — the standard is "no sufficient independent income" which is a relative concept. Under S.144 BNSS — the wife must be "unable to maintain herself" which courts interpret broadly.
If the respondent defaults in paying the maintenance ordered by the court — the claimant can file an execution application. Under S.144 BNSS — the Magistrate can issue a warrant of arrest for default; the defaulter can be sentenced to imprisonment up to 1 month. The warrant can be issued each time there is default. Rajnesh v. Neha guidelines: uniform enforcement mechanism across courts; courts must ensure execution of maintenance orders. Under civil provisions (HMA S.25) — civil execution — attachment of salary, property, or bank accounts.
Yes — under S.144 BNSS, maintenance of legitimate and illegitimate minor children is a separate ground from spousal maintenance. The parent having custody of the child (typically the mother) can claim maintenance from the other parent for the child's needs — education, medical, food, clothing. Under HMA — during matrimonial proceedings, S.24 includes litigation expenses and the court also deals with children's maintenance. The Guardian and Wards Act and Hindu Minority and Guardianship Act also have provisions for child maintenance. Major children with physical or mental disability can also claim maintenance.
Yes — Section 144 BNSS explicitly covers maintenance of parents unable to maintain themselves. Any person whose father or mother is unable to maintain themselves can be directed by the Magistrate to pay maintenance to the parent. Additionally, the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 provides a faster, more accessible route — Maintenance Tribunals (typically the SDM in Delhi) can pass orders for maintenance of senior citizen parents / grandparents within 90 days. The amounts are modest but the process is simpler.
Yes — maintenance orders are not final forever. Either party can apply for modification on a change of circumstances. Examples of changed circumstances: the respondent's income has increased significantly (claimant can seek enhancement); the claimant has remarried (respondent can seek cancellation); the claimant has started earning substantially (respondent can seek reduction); medical needs of the claimant have changed. Under S.144 BNSS — the Magistrate can alter, modify or rescind the order on proof of change of circumstances. Under HMA S.25 — similarly, the court has power to vary.
Key differences: (1) S.144 BNSS — for all religions, criminal forum (Magistrate/Family Court), available independently without any matrimonial proceedings pending. HMA S.24 — only during pending HMA proceedings (divorce, nullity, restitution etc.); S.25 — only after a decree is passed. (2) S.144 BNSS is a criminal proceeding — default leads to arrest. HMA is civil — default leads to civil execution. (3) S.144 BNSS covers wife, children, and parents. HMA covers only spouses. (4) Both can run simultaneously — but amounts must be adjusted per Rajnesh guidelines.
Yes — as per the Supreme Court's binding guidelines in Rajnesh v. Neha (2021) 2 SCC 324 — both parties in maintenance proceedings are required to file a comprehensive affidavit of assets, income, and liabilities at the commencement of the proceedings. The format prescribed in the judgment should be used. Filing a false affidavit amounts to contempt of court and perjury. Courts take note of discrepancies between the lifestyle/assets and the declared income — and may infer suppressed income to determine quantum of maintenance.