Maintenance for wives, children and parents — your rights under the new law
Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 carries forward, almost word for word, the maintenance jurisdiction once exercised under Section 125 of the CrPC, 1973. The provision is religion-neutral, summary, and rooted in Article 21 — but its meaning has been shaped less by the bare statute than by a forty-year line of Supreme Court judgments running from Shah Bano through Danial Latifi, Iqbal Bano, Shabana Bano, Bhuwan Mohan Singh and Rajnesh v Neha.
Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 is the new home of one of the most consequential summary remedies in Indian criminal procedure — the order for maintenance of wives, children and parents. The section reproduces, with very limited drafting changes, the substance of the old Section 125 of the Code of Criminal Procedure, 1973. What it does not reproduce is the body of doctrine the Supreme Court has built around the older provision over four decades. That doctrine — beginning with Mohd Ahmed Khan v Shah Bano Begum, (1985) 2 SCC 556, surviving the political backlash that produced the Muslim Women (Protection of Rights on Divorce) Act, 1986, reformulated in Danial Latifi v Union of India, (2001) 7 SCC 740, and consolidated for trial courts in Rajnesh v Neha, (2021) 2 SCC 324 — is what Magistrates and Family Courts will continue to apply when they read Section 144 BNSS. The renumbering is a surface event. The jurisprudence is not.
The statutory framework — CrPC Section 125 to BNSS Section 144
Chapter IX of the CrPC, 1973 (Sections 125 to 128) carried the maintenance jurisdiction. Chapter X of the BNSS, 2023 (Sections 144 to 147) carries it forward. Section 144 BNSS [Section 125 CrPC] is the substantive provision. Section 145 BNSS [Section 126 CrPC] supplies the procedure. Section 146 BNSS [Section 127 CrPC] permits alteration, and Section 147 BNSS [Section 128 CrPC] deals with enforcement of an order made by a Magistrate of a different district. The structure is identical; the section numbers are different.
Section 144 BNSS empowers a Magistrate of the first class, on proof of neglect or refusal to maintain, to order a person of sufficient means to make a monthly allowance for the maintenance of (a) his wife, unable to maintain herself, (b) his legitimate or illegitimate minor child, married or not, unable to maintain itself, (c) his legitimate or illegitimate major child (other than a married daughter) where, by reason of physical or mental abnormality or injury, the child is unable to maintain itself, and (d) his father or mother, unable to maintain himself or herself. The Explanation defines "wife" to include a divorced woman who has not remarried — a definition first introduced by the 1973 Code and never disturbed.
Three drafting features carry forward without change. The Magistrate's jurisdiction is summary and preventive, not adjudicatory of matrimonial status — a point reiterated since Nand Lal v Kanhaiya Lal, AIR 1960 SC 882 that Chapter IX is a self-contained code. The ceiling on quantum, removed by the CrPC (Amendment) Act, 2001, has been kept removed in BNSS Section 144. And the second proviso to sub-section (1), which empowers the Magistrate to order interim maintenance and expenses of the proceeding pending final disposal, with a sixty-day disposal target on interim applications, is reproduced in identical terms in BNSS Section 144(1).
The five conditions for a successful application remain those distilled in Lalit v Sarumati, (1977) CrLJ 1657 and consistently applied since — (i) an application before a Magistrate of the first class, (ii) the applicant falling within one of the four categories in clauses (a) to (d), (iii) inability of the applicant to maintain herself, himself, or itself, (iv) sufficient means on the part of the opposite party, and (v) neglect or refusal to maintain.
What "wife" has come to mean
The category that has generated the most jurisprudence is the wife. The expression operates on two levels. At the threshold, the applicant must establish that she is the lawfully married wife of the opposite party. The Magistrate, however, applies a prima facie standard rather than the strict proof required in a Section 494 IPC [Section 82 BNS] bigamy prosecution. Dwarika Prasad Satpathy v Bidyut Prava Dixit, (1999) 7 SCC 675 held that where the claimant has shown that she lived with the alleged husband as wife, the husband's plea that the marriage was performed under duress or was not valid does not by itself defeat the maintenance claim. The standard, the Court held, is whether the parties were treated as husband and wife by the community; matrimonial nullity is a question for the Civil Court.
The Explanation to Section 144(1) — identical to the old Explanation to Section 125(1) — includes within "wife" a woman divorced by her husband or by mutual decree who has not remarried. The provision was a deliberate widening of the old Section 488 of the 1898 Code, which had limited maintenance to the subsisting wife. The drafting choice produced the doctrinal arc traced below.
A second wife in a Hindu marriage solemnised during the subsistence of the first, void under Sections 5 and 11 of the Hindu Marriage Act, 1955, was held in Yamunabai Anantrao Adhav v Anantrao Shivram Adhav, (1988) 1 SCC 530 to fall outside the protection. The first wife's existence is, however, for the husband to prove. Savitaben Somabhai Bhatiya v State of Gujarat, (2005) 3 SCC 636 reaffirmed the position but held that the children of such a void second marriage retain the right to maintenance under Section 16 of the HMA and Section 125 CrPC [Section 144 BNSS]. A muta wife was held entitled in older Calcutta authority; a mistress is not. The Magistrate, in short, examines de facto marriage, not de jure validity, but the de facto union must withstand scrutiny.
The grounds on which a husband can resist a wife's application have hardened into a closed list — Section 144(4) BNSS [Section 125(4) CrPC] permits refusal only where the wife is living in adultery, refuses to live with the husband without sufficient reason, or where the parties are living separately by mutual consent. The Explanation to the second proviso to sub-section (3) declares that contracting a second marriage, or keeping a mistress, is just ground for the wife's refusal to live with the husband — a provision held in Begum Subanu v A M Abdul Gafoor, AIR 1987 SC 1103 to apply equally to a Muslim husband whose personal law permits up to four wives.
Maintenance for the Muslim divorced wife — Shah Bano to Danial Latifi to Iqbal Bano
The Muslim divorced wife has been the single most contested category under this section. The doctrinal arc moves through four cases.
Mohd Ahmed Khan v Shah Bano Begum, (1985) 2 SCC 556, decided by a five-judge Bench, held that a Muslim divorced wife who is unable to maintain herself is entitled to claim maintenance from her former husband under Section 125 CrPC, regardless of personal law, until she remarries or dies. The Court read Section 127(3)(b) — which permitted a Magistrate to cancel a maintenance order on payment of "the whole of the sum payable under personal or customary law on divorce" — narrowly, holding that mahr was not a sum paid "on" divorce but in consideration of marriage, and therefore could not extinguish the right.
The Muslim Women (Protection of Rights on Divorce) Act, 1986 was Parliament's response. Section 3 of the 1986 Act required the former husband to pay "reasonable and fair provision and maintenance" within the iddat period; thereafter the divorced woman's relatives, or finally the Wakf Board, became liable under Section 4. Section 5 preserved the option to be governed by Section 125 CrPC, but only if both parties agreed. The 1986 Act, read literally, appeared to cut off the post-iddat right that Shah Bano had affirmed.
Danial Latifi v Union of India, (2001) 7 SCC 740, a five-judge Constitution Bench upholding the 1986 Act, read the words "reasonable and fair provision and maintenance" in Section 3 in a remedial sense. The husband's obligation, the Court held, was not confined to the iddat period; the provision and maintenance had to be reasonable and fair enough to last the woman her lifetime, the actual payment being made within iddat. The constitutional challenge to the 1986 Act was rejected, but the practical effect was that the Muslim divorced wife retained substantive protection equivalent to what Shah Bano had granted under Section 125 — only the forum and the moment of fixation changed.
Iqbal Bano v State of UP, (2007) 6 SCC 785 clarified that until valid talaq was proved, the woman remained a "wife" within the meaning of Section 125 itself and could continue to apply there. The husband bore the burden of proving a valid divorce in accordance with Muslim law; until that burden was discharged, the 1986 Act did not come into operation at all.
Shabana Bano v Imran Khan, (2010) 1 SCC 666 took the line one step further. A divorced Muslim woman, the Court held, can claim maintenance even after the iddat period under Section 125 CrPC as long as she has not remarried, and the proceeding can be filed before a Family Court constituted under the Family Courts Act, 1984. Shabana Bano effectively held that the 1986 Act did not foreclose Section 125; the two remedies operated concurrently, and the divorced Muslim woman could elect either. Khatoon Nisa v State of UP, (2014) 12 SCC 646 and the more recent Mohd Abdul Samad v State of Telangana, 2024 INSC 506 have reaffirmed this concurrence, the Court in 2024 holding that Section 125 CrPC (and now Section 144 BNSS) is religion-neutral and remains available to a Muslim divorced wife alongside the 1986 Act.
For practical purposes, then, a Muslim divorced woman in 2026 has two routes — an application under the 1986 Act (now read through the lens of Danial Latifi) and an application under Section 144 BNSS [Section 125 CrPC]. The choice is hers; an order under one does not extinguish a parallel claim under the other unless the doctrine of double benefit can be made out on facts.
Maintenance for children and parents
A minor child — legitimate or illegitimate, married or not — falls squarely within Section 144(1)(b) BNSS [Section 125(1)(b) CrPC] so long as the child is unable to maintain itself. Paternity disputes are tested on the de facto standard rather than a strict criminal-trial standard; the Supreme Court in Dimple Gupta v Rajiv Gupta, (2007) 10 SCC 30 upheld an order of maintenance for an illegitimate child where the mother's evidence of sexual relations with the putative father was corroborated. Gautam Kundu v State of West Bengal, AIR 1993 SC 2295 has remained the controlling authority on blood-test applications — DNA testing is not a matter of right; the Court will refuse where the application is filed to delay payment rather than to test paternity.
A major child falls within clause (c) only if physical or mental abnormality or injury renders the child unable to maintain itself; a healthy major son cannot claim maintenance from the father under this section, though the Hindu Adoptions and Maintenance Act, 1956 contemplates a different position for daughters until marriage. The Supreme Court in Amarendra Kumar Pal v Maya Pal, (2009) 8 SCC 359 confirmed that maintenance under Section 125 ceases on attainment of majority unless the abnormality bar is satisfied. A Muslim minor child remains entitled to maintenance from the father even after the father divorces the mother; the Muslim Women (Protection of Rights on Divorce) Act, 1986, by its own terms, does not displace the child's claim under Section 125 — Noor Saba Khatoon v Mohd Quasim, (1997) 6 SCC 233 held this in terms.
The parent's right under clause (d) was a new addition by the 1973 Code; old Section 488 had not contemplated it. The condition is that the parent is unable to maintain himself or herself and that the son or daughter has sufficient means. Vijaya Manohar Arbat v Kashirao Rajaram Sawai, (1987) 2 SCC 278 held that "his father or mother" in clause (d) included a stepmother, a married daughter being equally liable to maintain a parent as a son — a holding that has held the field. Senior citizens, in addition, now have the parallel and faster remedy under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, the Tribunal under that Act being empowered to pass a maintenance order within ninety days.
Procedure, quantum, and enforcement
The procedure is laid down in Section 145 BNSS [Section 126 CrPC]. The application may be filed where the opposite party resides, where the opposite party last resided with the wife (or, in the case of the child, with the mother), or — by an amendment carried into the 1973 Code on Law Commission recommendation — where the wife herself resides. The forum-choice provision was held in Jagdish Jugtawat v Manju Lata, (2002) 5 SCC 422 and a host of High Court decisions to be a benefit for the wife and is reproduced unaltered in Section 145(1)(c) BNSS. Evidence is recorded in the presence of the opposite party; service of notice is by the procedure laid down in Sections 64 to 71 BNSS [Sections 62 to 65 CrPC]. Ex parte proceedings are permissible where the opposite party is wilfully avoiding service, but the Magistrate must record reasons.
Quantum is the most contested part of any maintenance order. Until Rajnesh v Neha, (2021) 2 SCC 324, High Courts and trial courts applied a patchwork of formulae — the "twenty-five percent of net salary" rule popularised by Kalyan Dey Chowdhury v Rita Dey Chowdhury, (2017) 14 SCC 200, the differing approaches in Delhi, Bombay and Madras, and the question of overlap with maintenance fixed under the Hindu Marriage Act, the Domestic Violence Act, or Section 24 HMA. Rajnesh v Neha consolidated the field. The two-judge Bench laid down directions binding on all family and criminal courts in India — a standard affidavit of assets and liabilities to be filed by both parties at the outset, criteria for fixing quantum (status of parties, reasonable needs of the wife and children, the wife's qualifications and earning capacity, the husband's income and obligations, liabilities, standard of living during the marriage), the date from which maintenance is to run (ordinarily from the date of application), the disposal target (within four to six months), and the procedure for enforcement. Section 144 BNSS will be applied through the Rajnesh framework whether the proceeding is before a Magistrate, a Family Court, or a Sessions Court hearing a revision.
Interim maintenance is governed by the second proviso to Section 144(1) BNSS, with a statutory sixty-day disposal target on the interim application. The Magistrate may direct interim maintenance from the date of the application. The standard for grant of interim maintenance is lower than for final maintenance — prima facie satisfaction that the applicant is unable to maintain herself and that the opposite party has the means.
The date from which maintenance runs is governed by Section 144(2) BNSS [Section 125(2) CrPC] read with the directions in Rajnesh v Neha. The default is the date of the application; the Magistrate may, for reasons recorded, fix a later date. Retrospective effect from a date earlier than the application is not permissible — the Supreme Court in Bhuwan Mohan Singh v Meena, (2015) 6 SCC 412 reaffirmed the discipline and held, with some pointedness, that maintenance proceedings should be disposed of by trial courts within six months and that any longer delay defeats the social-justice object of the section.
Enforcement is dealt with in Section 144(3) BNSS [Section 125(3) CrPC]. Default in payment may be levied as a fine, and on continued default the Magistrate may sentence the defaulter to imprisonment for up to one month for each month's allowance remaining unpaid after execution of the warrant, or until payment is sooner made. The first proviso preserves a one-year limitation for recovery from the date the amount fell due — an application beyond a year is barred. The second proviso disentitles a wife where the husband offers to maintain her on condition of cohabitation and she refuses without just ground; the Explanation, again, makes a second marriage or keeping a mistress sufficient ground for the wife's refusal.
Cancellation of an order, under Section 144(5) BNSS [Section 125(5) CrPC], is only on the three statutory grounds — wife living in adultery, refusing without sufficient reason to live with the husband, or the parties living separately by mutual consent. The cancellation is prospective; S S N Niphade v N S Niphade, 1996 SCC (Cri) 53 has been followed for the position that cancellation does not retrospectively wipe out the past order.
What changed in BNSS Sections 144 to 147 [old 125 to 128]
The structural changes are modest. The maintenance jurisdiction has been carried over intact in language and substance. What has changed:
Renumbering. Section 125 CrPC is now Section 144 BNSS. Section 126 is now Section 145; Section 127 is Section 146; Section 128 is Section 147. Practitioners drafting fresh applications after 1 July 2024 should cite BNSS section numbers as primary, with the old CrPC numbers in brackets during the transition years.
Procedural integration. The reference to e-filing and electronic appearance, which appears as a general permission in BNSS Sections 530 and 532, applies to maintenance proceedings under Chapter X. Trial courts have started accepting affidavits of income and assets — the Rajnesh proforma — through the e-Courts portal where the local rules permit.
Substantive provisions unchanged. The amounts (no ceiling since 2001), the categories of applicants, the grounds of resistance, the interim maintenance provision, the sixty-day target on interim disposal, the territorial jurisdiction including the wife's place of residence, and the imprisonment-in-default provision are all reproduced without alteration. The doctrinal apparatus built around Section 125 CrPC — Shah Bano, Danial Latifi, Iqbal Bano, Shabana Bano, Bhuwan Mohan Singh, Rajnesh v Neha — applies to Section 144 BNSS by force of the substantive identity of the two provisions, an application of the principle in Jaipal v Krishi Upaj Mandi Samiti, (1999) 6 SCC 643 that the corresponding provision in a re-enactment carries the gloss of the original.
The state amendments. The state amendments to Section 125 CrPC (Madhya Pradesh, Maharashtra, Rajasthan, Tripura, Uttar Pradesh, West Bengal — some setting ceilings, some adding interim provisions before the 2001 Amendment) had largely been overtaken by the 2001 deletion of the ceiling. The Supreme Court in Manoj Yadav v Pushpa Yadav, AIR 2011 SC 614 held the surviving state amendments to be inconsistent with the central amendment and inoperative on the ceiling point. The BNSS has not separately re-enacted those state amendments; they do not carry forward.
Open questions and recent SC line
Several questions remain genuinely open or actively contested.
The first is the interplay between Section 144 BNSS, Section 125 CrPC for legacy proceedings, the Protection of Women from Domestic Violence Act, 2005 (especially Section 20 monetary reliefs), Section 18 of the Hindu Adoptions and Maintenance Act, 1956, Section 24 HMA, and the 1986 Act for Muslim divorced wives. Rajnesh v Neha attempted to harmonise this matrix by requiring courts to take note of awards under other statutes and to avoid duplication. High Courts continue to differ on whether adjustment must be on a rupee-for-rupee basis or only where the heads of relief overlap; the question is open for a larger Bench.
The second is the Muslim divorced wife's election between the 1986 Act and Section 144 BNSS in light of Mohd Abdul Samad v State of Telangana, 2024 INSC 506. The 2024 Bench's reasoning is that the two remedies are concurrent and not mutually exclusive. Whether the formulation extends to allowing a fresh Section 144 application after a final order under the 1986 Act has been passed, and how trial courts should handle pleas of double benefit, has not been settled.
The third is the position of a woman in a long-term cohabitation relationship not amounting to a legal marriage. D Velusamy v D Patchaiammal, (2010) 10 SCC 469 confined the protection of the Domestic Violence Act to "relationships in the nature of marriage" — but Section 144 BNSS [Section 125 CrPC] continues to be available only to the lawfully married wife. The Supreme Court in Indra Sarma v V K V Sarma, (2013) 15 SCC 755 reiterated this distinction. Whether the line will hold in the face of constitutional challenges grounded in Article 21 is open. Lalita Toppo v State of Jharkhand, (2019) 13 SCC 796 hinted, in obiter, at a wider sweep for live-in partners under the DV Act framework.
The fourth is enforcement. Bhuwan Mohan Singh v Meena remains the leading recent statement on the duty of timely disposal — six months from filing, with reasoned orders on quantum. Compliance remains uneven. Recovery proceedings under Section 144(3) BNSS [Section 125(3) CrPC], coupled with the limitation in the first proviso, mean that arrears accumulating beyond a year are lost; the Supreme Court has not yet sat to consider whether this limitation should be read down in cases where the defaulter is in long-running contempt of the order.
The fifth, finally, is the quantum revision through Section 146 BNSS [Section 127 CrPC]. Either party may apply for variation on proof of change in circumstances. Whether automatic revision on the basis of cost-of-living indices, as some High Courts have hinted at, is a permissible reading of "change in the circumstances" remains unresolved.
Section 144 BNSS is, on its face, a procedural section in a procedural code. It is, in substance, the principal civil-protection statute through which the Indian legal system gives effect to the constitutional commitment in Article 21 that the dependants of a person with means shall not be allowed to fall into destitution. The bare statute could be paraphrased in five hundred words; the case law that gives it meaning runs to many volumes. Practitioners drafting applications, judges hearing them, and academics writing about them will continue to read Section 144 BNSS through the lens of forty years of Section 125 jurisprudence — and that, in this corner of the law, is a feature rather than a bug.