Filing for maintenance for a wife, child or parent — the forum and the procedure

Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 carries forward the summary maintenance jurisdiction that Section 125 of the CrPC, 1973 has exercised since 1974. The substantive content is unchanged. The procedural law, however, has been substantially tightened since Rajnesh v Neha, (2021) 2 SCC 324 — affidavits of assets and liabilities are now mandatory from both parties at the outset, the date from which maintenance runs has been fixed at the date of application as the default, and the Magistrate is bound by disposal targets the Supreme Court has spelt out. This guide is the working procedural map.

An application under Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 is the workhorse of Indian maintenance practice. The provision corresponds, almost word for word, to Section 125 of the Code of Criminal Procedure, 1973; the jurisprudence built around the old section continues to govern the new. What has changed since 2021 is the procedural superstructure — Rajnesh v Neha, (2021) 2 SCC 324 has converted what was once a Magistrate's discretionary, fact-by-fact assessment into a structured proceeding with mandatory disclosure, a default date of effect, and disposal targets enforceable on appeal. The doctrinal overlay for a Muslim divorced wife — Shah Bano, Danial Latifi, Mohd Abdul Samad v State of Telangana, 2024 INSC 506 — is addressed in our companion piece on the doctrine. This guide tracks the procedure a lawyer drafting a fresh Section 144 BNSS application will run through.

The statutory architecture — what Section 144 BNSS authorises

Section 144(1) of the BNSS empowers a Judicial Magistrate of the First Class, on proof of neglect or refusal to maintain by a person of sufficient means, to order monthly maintenance for four categories of applicant — (a) the wife, including a divorced wife who has not remarried, unable to maintain herself; (b) a legitimate or illegitimate minor child, married or not, unable to maintain itself; (c) a legitimate or illegitimate major child, other than a married daughter, unable to maintain itself by reason of physical or mental abnormality or injury; and (d) a father or mother unable to maintain himself or herself. The five conditions for an order — application before a Magistrate of the first class, the applicant falling within one of the four categories, inability to maintain self, sufficient means on the opposite party, and neglect or refusal to maintain — are settled since Lalit v Sarumati, (1977) CrLJ 1657 (Gau) and have not been disturbed.

The second proviso to Section 144(1) BNSS, reproduced from the CrPC (Amendment) Act, 2001, empowers the Magistrate to order interim maintenance and proceeding expenses pending final disposal, with a disposal target on the interim application of "as far as possible within sixty days from the date of the service of the notice of application". Section 144(2) BNSS [Section 125(2) CrPC] fixes the date from which maintenance runs — the date of the order, or, if so ordered, the date of the application. Section 144(3) BNSS [Section 125(3) CrPC] supplies the enforcement code — warrant for recovery of arrears in the manner of a fine, and on continued default, imprisonment of up to one month for each month's allowance remaining unpaid after execution of the warrant. The first proviso to sub-section (3) imposes a one-year limitation on the recovery application from the date the amount fell due.

Sub-section (4) sets out the closed list of grounds on which a wife's claim may be resisted — living in adultery, refusing without sufficient reason to live with the husband, or living separately by mutual consent. Sub-section (5) requires the Magistrate to cancel the order on proof of any of these three grounds. Section 145 BNSS [Section 126 CrPC] supplies the procedural map — venue, service of process, evidence in the presence of the opposite party, ex parte power on wilful avoidance. Section 146 BNSS [Section 127 CrPC] permits alteration on change of circumstances; Section 147 BNSS [Section 128 CrPC] deals with enforcement by a transferee Magistrate where the opposite party resides outside the Magistrate's territorial jurisdiction.

Chapter X of the BNSS is, in the language of the Supreme Court in Nand Lal v Kanhaiya Lal, AIR 1960 SC 882 (on the corresponding chapter of the old Code), a self-contained code on maintenance. The jurisdiction is summary and preventive, not adjudicatory of matrimonial status. The Magistrate may decide marriage on a prima facie standard; the question of nullity or validity is for the Civil Court.

Forum and territorial jurisdiction — where the application is filed

Section 145(1) BNSS [Section 126(1) CrPC] gives the applicant three concurrent venues — the District where the opposite party resides; where the opposite party last resided with the wife (or, in the case of a child, with the mother); or where the wife herself resides. The third limb, inserted into the 1973 Code on the recommendation of the Law Commission, has been the practical anchor since the Supreme Court in Jagdish Jugtawat v Manju Lata, (2002) 5 SCC 422 confirmed that the choice is the applicant's and is not to be defeated by the husband's later relocation. Section 145(1)(c) BNSS reproduces the provision unaltered. The District Court of the wife's ordinary residence at the time of filing therefore remains the default forum for a wife's application.

Where a Family Court has been notified under Section 7 of the Family Courts Act, 1984 within the relevant District, the Section 144 BNSS proceeding lies before the Family Court rather than the Magistrate, but the Family Court exercises the powers of a Judicial Magistrate of the First Class for this purpose. The Supreme Court in Shabana Bano v Imran Khan, (2010) 1 SCC 666 confirmed that the Family Court is the competent forum where one has been constituted; the maintenance proceeding does not lose its summary character on this account.

The application is presented in the form of a verified petition. Court fee is nominal (a maintenance application is not a "suit" attracting ad valorem fee). The petition is accompanied by an affidavit of assets and liabilities in the standard format the Supreme Court appended to Rajnesh v Neha, (2021) 2 SCC 324; the form is reproduced in the body of the judgment and is now uniformly adopted across Family Courts in India. The application must plead, in addition to the bare statutory averments, the income and assets of the opposite party to the best of the applicant's knowledge — a pleading minimum that Rajnesh made compulsory to enable the Magistrate to test the opposite party's reply affidavit against the petition itself.

The pleading minima — what the application must aver

A Section 144 BNSS application must plead the five jurisdictional facts and supply the documentary foundation for each. The pleadings track the conditions laid down since Lalit v Sarumati and refined through forty years of trial-court practice.

Marriage or filiation. A wife applicant must aver the marriage — date, place, and form (Hindu rites, Special Marriage Act registration, Muslim nikah, Christian church marriage, etc.) — and attach documentary proof if available. Where direct documentary proof is unavailable, long cohabitation as husband and wife and recognition by the community is a sufficient prima facie foundation; Dwarika Prasad Satpathy v Bidyut Prava Dixit, (1999) 7 SCC 675 held that the strict standard of proof in a Section 494 IPC [Section 82 BNS] bigamy prosecution does not apply to a Section 125 CrPC [Section 144 BNSS] proceeding. The Magistrate applies the de facto standard. The position is different for a "live-in" partner not in a legal marriage — D Velusamy v D Patchaiammal, (2010) 10 SCC 469 confined Section 125 to the lawfully married wife, holding that the Domestic Violence Act, 2005 is the appropriate vehicle for a "relationship in the nature of marriage". A practitioner pleading on the wife's behalf where the marriage is contested should therefore attach the marriage card, photographs, ration card and any joint utility bills, school records of children, and affidavits of two neighbours or relatives identifying the parties as husband and wife.

Sufficient means of the opposite party. The applicant pleads the opposite party's source of income, designation, employer, business interests, and any property to the best of her knowledge. The Supreme Court in Chaturbhuj v Sita Bai, (2008) 2 SCC 316 confirmed that "sufficient means" is not limited to visible income — physical and mental capacity to earn is sufficient. A husband who is healthy and able-bodied is presumed to have sufficient means even where he claims unemployment; the burden of disproving sufficient means is on him. The Magistrate may, on the Rajnesh affidavit and the documents the opposite party annexes, draw adverse inference from non-disclosure.

Neglect or refusal to maintain. The applicant must aver that the opposite party has, despite means and notice of need, failed to provide maintenance. The pleading typically narrates the cessation of cohabitation, the dates and circumstances of the wife's leaving the matrimonial home, any prior demands made on the husband, and the absence of any maintenance paid since separation.

Inability to maintain herself. The wife must aver her own income, qualifications, earning capacity, and any independent property. Earning capacity by itself does not disentitle the wife — Chaturbhuj v Sita Bai, (2008) 2 SCC 316 held that the test is whether the wife can maintain herself "in the same manner as she would have been maintained had she been residing with the husband", not whether she can survive at subsistence level. Sunita Kachwaha v Anil Kachwaha, (2014) 16 SCC 715 reaffirmed that a wife earning a modest salary is still entitled to maintenance where her independent income is insufficient to maintain a standard of living approximating the marital standard.

Children, if claimed. A claim for a minor child is pleaded under sub-clause (b) — paternity, age, custody, and the absence of independent means. Birth certificates, school records, and (where paternity is disputed) the mother's affidavit suffice at the prima facie stage. A claim for a major child with physical or mental abnormality is pleaded under sub-clause (c) and must be supported by medical evidence; a major healthy child cannot maintain a Section 144 application against the parent.

The Rajnesh framework — affidavit of assets and liabilities

Rajnesh v Neha, (2021) 2 SCC 324 is the structural turning point in maintenance practice. The two-judge Bench, faced with a record of trial-court inconsistency on quantum, laid down a set of directions binding on all Family Courts, District Courts, and Criminal Courts dealing with maintenance applications under Section 125 CrPC [now Section 144 BNSS], Section 24 of the Hindu Marriage Act, 1955, Section 18 of the Hindu Adoptions and Maintenance Act, 1956, Section 20 of the Protection of Women from Domestic Violence Act, 2005, and Section 36 of the Special Marriage Act, 1954.

The directions are practical and have been implemented uniformly. Both parties are required to file an affidavit of assets and liabilities at the outset, in the format the Supreme Court appended to the judgment. The affidavit covers personal details, qualifications, employment, income (with salary slips, ITRs, and bank statements for the preceding three years), movable and immovable property, liabilities (loan account statements), monthly expenditure (rent, EMI, school fees, medical), and any other income source. The wife's affidavit is filed with the petition; the husband's affidavit is filed with the reply. Non-compliance attracts adverse inference and may attract striking off of the defence.

The criteria for fixing quantum are spelt out — status of parties, reasonable needs of the wife and the dependent children, the wife's qualifications and employment, the income of the wife and her ability to maintain herself, liabilities of the husband, standard of living before separation, and so on. The Supreme Court in Bhuwan Mohan Singh v Meena, (2015) 6 SCC 353 had earlier held that maintenance must be "realistic and sufficient", not a token figure; the Rajnesh framework is the operational instantiation of that direction. The Delhi High Court in Annurita Vohra v Sandeep Vohra, 2004 (3) DMC 79 had pioneered a calculation method — divide the husband's net income by the number of family members the husband is liable to support — that has informed but not formally bound the post-Rajnesh trial courts.

A working reference figure in current practice is approximately 25% of the husband's net take-home as a starting point for the wife's maintenance, adjusted upwards or downwards on the Rajnesh factors. The figure derives from Kalyan Dey Chowdhury v Rita Dey Chowdhury, (2017) 14 SCC 200, which approved the twenty-five-per-cent benchmark in the facts of that case, and has since been treated as a useful (though non-binding) reference by Family Courts.

Manish Jain v Akanksha Jain, (2017) 15 SCC 801 added a further proposition relevant to quantum — maintenance under Section 24 HMA (and by parity, Section 144 BNSS) is intended to enable the spouse to maintain the standard of life to which she had been accustomed, and the wife's possession of qualifications or limited income does not foreclose the claim. The Magistrate is required to assess "sufficient means" of the husband in light of the actual standard of marital living, not at subsistence level.

Interim maintenance under the second proviso

The second proviso to Section 144(1) BNSS empowers the Magistrate to order interim maintenance during the pendency of the application, together with the expenses of the proceeding. The statutory disposal target is sixty days from the date of service of notice of the interim application on the opposite party. Practice is uneven — metropolitan Family Courts (Delhi, Mumbai, Bangalore) routinely fix interim maintenance within sixty to ninety days; District Family Courts and Magistrates in smaller stations take longer.

The standard for grant of interim maintenance is prima facie satisfaction — the Magistrate is not required to conduct a full trial. The applicant must show prima facie marriage or filiation, prima facie inability to maintain herself, and prima facie sufficient means of the opposite party. An interim maintenance order is not a final adjudication and may be revised under Section 397 BNSS [Section 397 CrPC] or modified at the time of final disposal.

The Rajnesh affidavit framework applies at the interim stage as well. The two-judge Bench was emphatic that interim quantum cannot be fixed without compliance with the disclosure regime; Magistrates have been directed not to entertain reply affidavits unless they comply with the format. Trial courts now generally insist on simultaneous filing of the affidavit with the reply.

The date from which maintenance runs

Section 144(2) BNSS [Section 125(2) CrPC] gives the Magistrate discretion to fix the date from which maintenance runs as either the date of the order or the date of the application. Until Rajnesh, trial-court practice was uneven — some Magistrates fixed the date of order as the default; others fixed the date of application. The Supreme Court in Rajnesh resolved the divergence by directing that maintenance be ordered, as a rule, from the date of the application; any deviation requires reasons recorded. The Court reasoned that allowing the husband to benefit from delay in disposal — by fixing the date at the date of order — defeats the social-justice object of the section.

Where the Magistrate fixes a date earlier than the date of the order, arrears accrue from that earlier date. Rajnesh further directed that interest at the rate of six per cent per annum may be granted on the arrears where the husband has been in default of interim payment. The Magistrate may also direct payment of arrears by way of equal instalments or in lump sum, depending on the husband's financial position.

Avoidance defences — Section 144(4) BNSS

The grounds on which a husband may defeat a wife's application are exhausted by Section 144(4) BNSS — the wife is living in adultery, she has refused without sufficient reason to live with the husband, or the parties are living separately by mutual consent. The grounds are read narrowly. The Magistrate must record a specific finding on the avoidance plea, supported by evidence; mere allegations in the written statement are not sufficient.

The "refusal to live with the husband" defence is qualified by the Explanation to the second proviso to sub-section (3), which declares that a husband who has contracted a second marriage or keeps a mistress provides his wife with just ground for the refusal. The Supreme Court in Begum Subanu v A M Abdul Gafoor, AIR 1987 SC 1103 held that the Explanation applies equally to a Muslim husband whose personal law permits up to four wives — the Section 125 [Section 144 BNSS] question is not the legality of the second marriage but the wife's reasonable apprehension of mistreatment. "Living separately by mutual consent" requires affirmative evidence of a consensual separation arrangement, not merely the fact of physical separation; a wife driven from the matrimonial home is not "living separately by mutual consent" merely because she has not returned.

The "living in adultery" defence requires proof of a continuing adulterous relationship, not a single act of unfaithfulness. The Magistrate must record specific findings. Manmohan Singh v Charanjeet Kaur, (2007) 14 SCC 351 and a line of subsequent decisions have held that an unsubstantiated allegation by the husband is not sufficient to disentitle the wife.

Enforcement under Section 144(3) BNSS

An order of maintenance is self-enforcing. On default, the applicant moves the Magistrate under Section 144(3) BNSS [Section 125(3) CrPC] for recovery. The Magistrate, on satisfaction of default, issues a warrant for the recovery of arrears in the manner provided for levying fines under Chapter XXXIII of the BNSS. The amount is recovered from the defaulter's property. If the arrears are not recovered through the warrant and the default continues, the Magistrate may sentence the defaulter to imprisonment for up to one month for each month's allowance remaining unpaid, or until payment is sooner made.

The imprisonment is coercive, not punitive — the defaulter walks out the moment he pays. The maximum imprisonment for a single default month is one month; arrears for multiple months can in principle attract cumulative imprisonment, though most Magistrates fix a shorter consolidated term in practice.

The first proviso to Section 144(3) BNSS imposes a one-year limitation on the recovery application from the date the amount fell due. Arrears older than one year are not recoverable through the Section 144(3) mechanism — though the underlying liability does not extinguish, and recovery may be pursued through other channels such as the Code of Civil Procedure, 1908 if the order has been transmitted to the District Court for execution. Bhuwan Mohan Singh v Meena, (2015) 6 SCC 353 has been read as permitting limitation under Article 137 of the Limitation Act, 1963 for civil execution of the order, with a three-year window for recovery proceedings other than under Section 144(3) BNSS itself. The Supreme Court has not yet sat to consider whether the one-year limit in the first proviso to sub-section (3) should be read down in cases of continuing wilful contempt of the order; the question is open.

Section 147 BNSS [Section 128 CrPC] supplies the cross-jurisdictional enforcement mechanism — where the order is to be enforced against an opposite party residing in a different District, the order is sent to the Magistrate having jurisdiction over the new residence for execution. The transferee Magistrate has the same powers under Section 144(3) BNSS as the original Magistrate.

Cross-statute concurrency — DV Act, HMA, HAMA, SMA

Section 144 BNSS [Section 125 CrPC] is one of several statutory routes to maintenance, and the practice of Indian matrimonial law involves managing the overlap. The principal parallel provisions are:

Section 24 of the Hindu Marriage Act, 1955 provides maintenance pendente lite and expenses of the proceeding during the pendency of any matrimonial proceeding under the HMA. Section 25 HMA provides permanent alimony at the time of, or after, a decree under the HMA. These are personal-law routes, available where matrimonial proceedings between Hindus are pending.

Section 18 of the Hindu Adoptions and Maintenance Act, 1956 provides a civil-suit route for a Hindu wife to claim maintenance from her husband during the subsistence of the marriage, on the seven grounds set out in sub-section (2) (desertion, cruelty, leprosy, another wife living, concubine in the matrimonial home, conversion, or any other justifiable cause). Section 20 HAMA provides for children and aged parents. The HAMA route is in a civil court and is fuller and more thorough than the summary Section 144 BNSS proceeding; see our companion piece for the procedural map.

Section 20 of the Protection of Women from Domestic Violence Act, 2005 empowers the Magistrate to grant monetary relief to a woman who has faced domestic violence. Section 26 PWDVA permits the relief to be claimed in any legal proceeding before a civil court, family court or criminal court affecting the aggrieved person.

Sections 36 and 37 of the Special Marriage Act, 1954 are the parallel provisions for marriages solemnised under that Act.

Rajnesh v Neha, (2021) 2 SCC 324 directly addressed the concurrency problem. The Court held that the remedies are not mutually exclusive — a wife may proceed under more than one statute — but that the Family Court or Magistrate is required to take note of awards under other statutes and to avoid double recovery for the same head of relief. The applicant must disclose, in the affidavit of assets and liabilities, any pending or decided maintenance proceeding under any other statute, and the husband must do likewise. Where maintenance has been ordered under Section 24 HMA or Section 20 PWDVA, the Magistrate hearing the Section 144 BNSS application adjusts the quantum to avoid duplication on the same head — accommodation, monthly expenses, child education — while permitting different heads to be cumulated where the facts warrant.

Variation and cancellation under Section 146 BNSS

Section 146 BNSS [Section 127 CrPC] empowers the Magistrate to alter the maintenance order on proof of a change in the circumstances of either party. Common grounds for upward variation are increase in the husband's income, increase in the children's needs (school fees, medical), and the wife's deteriorating health. Common grounds for downward variation are the husband's loss of employment, the wife's remarriage (which terminates her right altogether under the Explanation to Section 144(1)), or the children's attainment of majority. The Magistrate is required to record the changed circumstances and the revised quantum with reasons.

Cancellation under Section 144(5) BNSS is limited to the three statutory grounds in sub-section (4) — wife living in adultery, refusing without sufficient reason to live with the husband, or living separately by mutual consent. Cancellation is prospective from the date of the cancellation order; arrears accrued before the cancellation remain recoverable.

The open questions

Three procedural questions sit on top of the Section 144 BNSS framework after Rajnesh.

The first is the strict limit on recovery in the first proviso to Section 144(3) BNSS — a one-year window from the date arrears fell due. Where the husband is in long-running wilful contempt, the arrears beyond one year are not recoverable through the Section 144(3) mechanism. Whether the limit should be read down in such cases, or whether the wife's remedy lies only in a civil suit to enforce the order as a debt, has not been settled by the Supreme Court.

The second is the position of the live-in partner. D Velusamy v D Patchaiammal, (2010) 10 SCC 469 and Indra Sarma v V K V Sarma, (2013) 15 SCC 755 have held that Section 125 CrPC [Section 144 BNSS] is available only to a lawfully wedded wife; a "relationship in the nature of marriage" must be litigated under the Domestic Violence Act, 2005. 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. Whether the Section 144 BNSS line will continue to hold against constitutional challenges grounded in Article 21 is an open question.

The third is automatic indexation of the maintenance order to cost-of-living. Some High Courts have, in occasional orders, hinted at the possibility of an in-built escalation clause to avoid repeated Section 146 BNSS [Section 127 CrPC] applications. The Supreme Court has not endorsed the device; Section 146 contemplates a fresh application on proof of change of circumstances rather than an automatic escalator.

Section 144 BNSS is the principal civil-protection statute through which the Indian legal system protects dependants of a person with means from destitution. The bare statute is short; the operative law — the Rajnesh framework, the date-of-application default, the sixty-day interim target, the one-year recovery window, the closed list of avoidance defences — is what governs the actual proceeding. A practitioner drafting an application today is drafting it within the Rajnesh grid, against the substantive backdrop of forty years of Section 125 CrPC jurisprudence, and into the renumbered Chapter X of the BNSS. The doctrinal overlay specific to a Muslim divorced wife — Shah Bano, Danial Latifi, Mohd Abdul Samad — is treated in our companion piece on the BNSS Section 144 doctrine.