Maintenance under Section 144 of Bharatiya Nagarik Suraksha Sanhita (BNSS)

The concept of maintenance under Indian law is aimed at ensuring that no dependent family member is left without financial support due to neglect or refusal by a person who has sufficient means. With the introduction of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, the earlier provision of Section 125 of the Code of Criminal Procedure (CrPC) has been replaced by Section 144 BNSS. The new section retains the essence of the old law while introducing greater clarity, inclusivity, and procedural efficiency.

Section 144 BNSS empowers a Judicial Magistrate of the First Class to order a person with sufficient means to provide financial maintenance to dependent family members such as wife, children, and parents who are unable to maintain themselves. This provision is a crucial safeguard against destitution and social injustice.

Understanding Section 144 BNSS

The main purpose of Section 144 BNSS is to prevent destitution and ensure that individuals who are financially dependent on others receive basic financial support. It provides a legal remedy for those neglected or abandoned by family members who are otherwise capable of maintaining them. 

The provision upholds the principles of social justice and family responsibility by obligating financially able individuals to take care of their dependents.

Who Can Claim Maintenance under Section 144 of Bharatiya Nagarik Suraksha Sanhita

Under Section 144 BNSS, the following persons are entitled to claim maintenance:

1. Wife – A wife who is unable to maintain herself can claim maintenance from her husband. The term “wife” includes a divorced woman who has not remarried.
2. Minor Children – Legitimate or illegitimate minor children, whether married or not, can claim maintenance if they are unable to maintain themselves.
3. Children with Disabilities – Adult children, legitimate or illegitimate, who are unable to maintain themselves due to physical or mental abnormality or injury are also covered. However, this does not include married daughters.
4. Parents – A father or mother who is unable to maintain themselves can also seek maintenance from their children.

The provision is gender-neutral in nature, allowing claims to be made not only by wives and parents but also, in certain situations, by dependent husbands or mothers.

Key Features of Section 144 BNSS

Judicial Authority

A Judicial Magistrate of the First Class has the power to decide maintenance applications. Upon proof of neglect or refusal to maintain, the Magistrate may order a monthly allowance at a rate deemed reasonable and direct the payment to the person concerned.

Interim Maintenance

During the pendency of proceedings, the Magistrate may order interim maintenance along with expenses of the proceeding. This ensures that the dependent person does not suffer financially while the case is still being decided.

Importantly, the law directs that such applications for interim maintenance should, as far as possible, be disposed of within sixty days from the date of service of notice to the person against whom maintenance is claimed.

Commencement of Maintenance

The allowance for maintenance or interim maintenance can be made payable either from the date of the order or, if the Magistrate directs, from the date of the application. This flexibility ensures fairness and helps cover the period of delay between filing and final decision.

Enforcement of Maintenance Orders

If a person fails to comply with a maintenance order without sufficient cause, the court has the authority to issue a warrant for recovery of the amount due, similar to the procedure for recovery of fines.

If the amount remains unpaid even after the execution of the warrant, the Magistrate may sentence the defaulter to imprisonment up to one month, or until payment is made, whichever is earlier.

However, a warrant for recovery must be sought within one year from the date the amount became due.

Justification for Refusal to Live Together

If a husband offers to maintain his wife on the condition that she lives with him, and the wife refuses, the Magistrate examines her reasons. If the Magistrate finds that the refusal is based on just grounds, maintenance can still be granted.

The law specifically clarifies that if the husband has married another woman or keeps a mistress, it constitutes a just ground for the wife’s refusal to live with him.

Disqualifications for Claiming Maintenance

Certain conditions disqualify a wife from claiming maintenance. A wife is not entitled to maintenance if:

• She is living in adultery.
• She refuses to live with her husband without sufficient reason.
• The couple is living separately by mutual consent.

If it is proven that any of these situations exist after an order of maintenance has been passed, the Magistrate must cancel the order.

Procedure for Seeking Maintenance

1. Filing an Application: The dependent person or their representative may file an application before the Judicial Magistrate of the First Class within whose jurisdiction the respondent resides or last resided.
2. Notice and Appearance: After receiving the application, the Magistrate issues a notice to the respondent, who must appear and file a reply.
3. Evidence and Hearing: Both parties are required to present their evidence regarding income, dependency, and neglect or refusal to maintain.
4. Interim Maintenance: Pending the final decision, the Magistrate may grant interim maintenance to prevent hardship.
5. Final Order: Based on the evidence, the Magistrate determines a reasonable monthly allowance. The decision depends on various factors such as the financial status of the person responsible, the needs of the dependent, and the standard of living enjoyed during the relationship.

Factors Considered for Determining Maintenance Amount

While deciding the quantum of maintenance, the Magistrate considers several factors, such as:

• Financial status and income of the person liable to pay.
• Reasonable needs of the dependent person.
• Standard of living enjoyed during the marriage or relationship.
• Number of dependents and existing financial liabilities of the payer.
• Health conditions or special needs of dependents.
• Inflation and cost of living relevant to the area.

The goal is to ensure that the dependent family member can live with dignity and maintain a standard of living similar to that enjoyed during the relationship.

Enforcement of Maintenance Orders under Section 144 of Bharatiya Nagarik Suraksha Sanhita

The enforcement mechanism under Section 144 BNSS ensures compliance with maintenance orders. If the person fails to pay the ordered amount:

• The court can issue a warrant for recovery of the due amount.
• The amount can be recovered in the same manner as fines are recovered under criminal law.
• In cases of continued non-payment, the Magistrate can impose imprisonment up to one month for each month’s default.
• Repeated defaults can lead to repeated punishments, subject to the Magistrate’s discretion.

This system ensures accountability and prevents deliberate evasion of financial responsibility.

Modification and Cancellation of Orders

Maintenance orders are not permanent and can be modified or canceled under certain circumstances:

• Change in financial condition: If the income or expenses of either party change significantly, the order may be altered.
• Remarriage of wife: If the wife remarries, her right to receive maintenance automatically ends.
• Proof of adultery or mutual separation: If proven, the existing maintenance order in favour of the wife can be canceled.

The flexibility ensures that the maintenance system remains fair and responsive to changing realities.

Judicial Interpretations and Landmark Cases

Several judicial pronouncements have guided the interpretation of maintenance provisions, shaping their scope and application.

Kusum Sharma v. Mahinder Kumar Sharma (2015)

This case highlighted that maintenance must reflect the dignity and standard of living that the wife was accustomed to during the marriage. The court emphasised that maintenance should not be merely a survival amount but must enable a reasonable and dignified life.

Shamima Farooqui v. Shahid Khan (2015)

The Supreme Court observed that a wife is entitled to live with similar status and comfort as she enjoyed in her matrimonial home. Maintenance should not be a matter of charity but a right ensuring equal status and protection against financial hardship.

Dr. Avnish Pawar v. Dr. Sunita Pawar (2000)

The court held that maintenance should be reasonable and proportionate to the actual income of the husband. The quantum must balance the needs of the dependent and the financial capability of the payer.

These judgments have been instrumental in ensuring that maintenance provisions are interpreted in a way that upholds fairness, equity, and human dignity.

Comparison of Section 144 of Bharatiya Nagarik Suraksha Sanhita with Earlier Section 125 CrPC

While Section 144 BNSS largely mirrors the old Section 125 CrPC, it introduces some refinements:

These updates make the provision more contemporary and efficient in addressing maintenance-related disputes.

Conclusion

Section 144 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, continues the vital function of ensuring financial protection for dependents who cannot sustain themselves. It embodies the principle that no person with sufficient means should allow their family members to live in destitution.