Short answer
A maintenance application asks a Judicial Magistrate of the first class to order a person with sufficient means to pay a monthly allowance to a wife, child or parent whom they have neglected or refused to maintain. The provision is Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaced Section 125 of the Code of Criminal Procedure, 1973 (CrPC). The remedy is summary and quick, and is tried before a Magistrate of the first class or a Family Court.
Who this applies to
- A wife unable to maintain herself, including a divorced wife who has not remarried.
- A child unable to maintain itself, and an adult child unable to do so due to physical or mental abnormality or injury.
- A father or mother unable to maintain themselves.
What the application must contain
- Cause title - the court, the parties, and the section under which the application is filed.
- Marriage and relationship - the marriage, the birth of children, or the parent-child relationship, with dates.
- Neglect - that the respondent has sufficient means and has neglected or refused to maintain the applicant.
- Need - the applicant's lack of independent means and monthly needs.
- Income of the respondent - the best available particulars, with a prayer for interim maintenance.
- Verification - a statement that the contents are true to knowledge and belief.
The application is supported by a vakalatnama and, commonly, an affidavit of income and expenditure for both sides, which the court uses to fix the amount.
Interim maintenance
Section 144 BNSS allows the court to order interim maintenance and the expenses of the proceeding during the pendency of the case. The BNSS sets a target that the application be decided, as far as possible, within sixty days from the date of service of notice on the respondent. Interim maintenance is intended to prevent hardship while the case is pending.
Maintenance for children and parents
A child's claim is independent of the mother's, and an application may be made on the child's behalf. A parent unable to maintain themselves may also apply, and the obligation is not limited to a son; a daughter with means may equally be asked to maintain a parent. The amount depends on the needs of the claimant and the means of the person liable.
Factors the courts weigh
The court looks at the means of the person who is to pay, the needs of the claimant, the ability of the wife to maintain herself, the standard of living of the parties, and the number of dependants. Maintenance is not confined to the bare minimum but should be reasonable and consistent with the payer's means. An order normally runs from the date of the order, unless the court directs otherwise.
How to prove income where the spouse conceals it
- Income-tax returns, Form 16, salary slips and bank statements.
- Property records, loan documents and credit-card statements showing the lifestyle claimed.
- Documents from the spouse's employer, and details of business or partnership interests.
- Where the respondent does not disclose, the court may draw an adverse inference and act on the applicant's material.
The parallel civil remedy
Besides Section 144 BNSS, a wife has a civil remedy under the Hindu Adoptions and Maintenance Act, 1956 and the corresponding provisions of other personal laws - for instance the Muslim Women (Protection of Rights on Divorce) Act, 1986 for divorced Muslim women, and the parallel schemes in Christian and Parsi law. The magistrates' remedy under Section 144 is independent of the personal law and is not barred by it, though a court may adjust amounts so that the same need is not paid twice.
Jurisdiction and time
The application lies before the Magistrate of the first class having jurisdiction, or before the Family Court where one has been set up in the district. There is no limitation period for filing the application itself, but arrears, once ordered, must be enforced within the time the BNSS allows.
Enforcement when an order is breached
Where the respondent fails to pay, the amount may be recovered as if it were a fine, in the manner laid down in the BNSS for enforcement of maintenance orders, and default can lead to imprisonment. Arrears should be claimed promptly because the BNSS allows recovery of amounts that have fallen due within one year from the date on which they fell due.
Common mistakes
- Claiming without a clear statement of the respondent's means.
- Not seeking interim maintenance in the original application.
- Failing to keep proof of the respondent's income and lifestyle.
- Delaying the enforcement application so that old arrears become time-barred.
Frequently asked questions
Can a divorced wife claim maintenance?
Yes, under Section 144 BNSS a divorced wife who has not remarried may claim maintenance, and she also has remedies specific to her personal law.
Is a separate income affidavit required?
In practice courts direct both parties to file affidavits of assets and income. The BNSS scheme relies on these to assess means quickly.
Can maintenance be increased or reduced later?
Yes. The BNSS allows the court to alter the allowance if there is a change in circumstances, such as a change in income.
Where should the application be filed?
Before the Judicial Magistrate of the first class having jurisdiction, or before the Family Court where one has been set up.
FileX Advocates & Legal Consultants, Kolkata, drafts maintenance applications and income affidavits and handles enforcement. Call +91 7439811422 or message us on WhatsApp at https://wa.me/917439811422. See our maintenance and alimony service, our family law services, and the family law formats, or contact us.