Criminal Procedure: Code of Criminal Procedure, 1973 / Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)
Maintenance under BNSS Compared with the Personal Laws
Maintenance under the BNSS Compared: Section 144 and the Hindu Marriage Act, the Hindu Adoptions and Maintenance Act and the Domestic Violence Act
A woman seeking maintenance in India may have four separate remedies open to her at the same time. She may apply under section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 before a Magistrate; under sections 24 and 25 of the Hindu Marriage Act, 1955 in a pending matrimonial proceeding; under sections 18 to 22 of the Hindu Adoptions and Maintenance Act, 1956 by a civil suit; and under section 20 of the Protection of Women from Domestic Violence Act, 2005 before a Magistrate. The four differ in nature, forum, standard and enforcement, and the question that has troubled the courts is not whether she may use them but what happens when she uses more than one.
The answer, worked out over many decisions and finally set out comprehensively in 2020, is that the remedies are cumulative and not alternative, and that the duty of the court is to adjust rather than to bar. This topic sets the four side by side and then explains the machinery by which the overlap is managed.
1. The Four Regimes
Figure 1: The four routes compared
1.1 Section 144, BNSS
A summary criminal proceeding before a Magistrate of the first class, directed at preventing destitution. It applies to persons of every religion. It requires proof that the person liable has sufficient means and has neglected or refused to maintain, and that the claimant is unable to maintain herself. It extends beyond the wife to minor children, a disabled major child and parents. Interim maintenance is available and the application is to be disposed of as far as possible within sixty days. Enforcement is by warrant as for fines, with imprisonment up to one month for each month unpaid.
1.2 Sections 24 and 25, Hindu Marriage Act, 1955
Section 24 provides for maintenance pendente lite and expenses of the proceeding, and is available to either spouse: a husband without independent income may claim from his wife. It operates only where a proceeding under the Act is pending, and it ends with that proceeding. Section 25 provides for permanent alimony and maintenance, which the court may order at the time of passing any decree or at any time subsequent to it, and which may be a gross sum or a monthly or periodical sum, secured if necessary by a charge on the immovable property of the respondent. Both apply only to Hindus as defined by the Act, which includes Buddhists, Jains and Sikhs.
1.3 Sections 18 to 22, Hindu Adoptions and Maintenance Act, 1956
Provision | Who may claim | Note |
|---|---|---|
Section 18 | A Hindu wife from her husband during her lifetime, and separately where she lives apart on one of the grounds the section specifies | The grounds include desertion, cruelty, the husband suffering from a virulent form of leprosy, his keeping a concubine or having another wife living, his conversion, and any other cause justifying her living separately. She forfeits the claim if she is unchaste or ceases to be a Hindu |
Section 19 | A widowed daughter-in-law from her father-in-law | Only where she is unable to maintain herself out of her own earnings or property, or from the estate of her husband, father or mother, or from her son or daughter; and only to the extent the father-in-law has coparcenary property in his possession out of which she has not obtained a share. The obligation ceases on her remarriage |
Section 20 | Children and aged parents | A Hindu is bound to maintain his legitimate or illegitimate children and his aged or infirm parents. A legitimate or illegitimate child may claim so long as it is a minor; an unmarried daughter, so long as she is unable to maintain herself. “Parent” includes a childless stepmother |
Sections 21 and 22 | Dependants of a deceased Hindu, from those who take his estate | Section 21 lists the dependants; section 22 obliges the heirs to maintain them out of the estate that devolves on them |
Section 23 | — | Sets out the matters to be considered in fixing the amount: the position and status of the parties, the reasonable wants of the claimant, whether she is living separately and justifiably, the value of the claimant’s property and income, and the number of persons entitled to maintenance |
The essential difference between this Act and the other three is that it creates a substantive civil right to be maintained, enforceable by a suit, independently of any matrimonial proceeding and independently of any neglect or refusal. It is slower and more expensive, and it produces a decree of a civil court rather than a summary order.
1.4 Section 20, Protection of Women from Domestic Violence Act, 2005
Section 20 permits the Magistrate, while disposing of an application under the Act, to direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child, including loss of earnings, medical expenses, loss caused by the destruction or removal of property, and maintenance for her and her children, including an order under or in addition to an order of maintenance under section 144 of the Sanhita or any other law. The relief must be adequate, fair, reasonable and consistent with the standard of living to which she is accustomed. It applies to all religions, it requires an act of domestic violence, and the claimant is an aggrieved person in a domestic relationship, which is wider than a wife.
2. The Relationship Between Them
Four propositions govern the interaction, and they should be kept distinct.
- The remedies are cumulative. A claim under one does not bar a claim under another. Section 20 of the Domestic Violence Act says so in terms: the order may be made in addition to an order under section 144. The Hindu Adoptions and Maintenance Act creates a substantive right independent of the summary remedy. And section 25 of the Hindu Marriage Act operates on a different footing altogether, following a decree.
- A summary order does not extinguish a substantive right. An order made, or a compromise recorded, in a summary proceeding under section 144 does not bar a subsequent suit under section 18 of the Hindu Adoptions and Maintenance Act, because the summary proceeding decides nothing conclusively.
- But the same liability is not to be paid twice. Where maintenance has been awarded in one proceeding, the court in the second must take it into account and adjust the amount, and may direct that the amount already paid be set off.
- The claimant must disclose. She is required to state in her application any previous proceeding and any order made in it, so that the court can make the adjustment. Concealment defeats the adjustment and is itself a ground for interference.
📖 Nagendrappa Natikar v. Neelamma, (2014) 14 SCC 452 Facts: A wife’s application for maintenance under section 125 of the Code of Criminal Procedure was disposed of on a compromise under which she accepted a sum and gave up her claim to further maintenance. She afterwards filed a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 claiming separate residence and maintenance. It was contended that the compromise barred the suit. Held: The Supreme Court held that a proceeding under section 125 is summary in nature, that it is intended to provide a speedy remedy against destitution, and that the order made in it is tentative and subject to a final determination of the rights in a civil court. A compromise recorded in such a summary proceeding cannot therefore foreclose a substantive claim under the personal law. The wife was entitled to maintain her suit under section 18 of the 1956 Act, and the amount received under the compromise would be taken into account. The Court emphasised that the two proceedings operate in different fields and that the summary jurisdiction is not a substitute for the civil right. Ratio: A compromise or order in a summary maintenance proceeding does not bar a suit on the substantive right under the personal law. The two operate in different fields, and the sum already received is adjusted rather than treated as a discharge. |
📖 Juveria Abdul Majid Patni v. Atif Iqbal Mansoori, (2014) 10 SCC 736 Facts: An application under the Protection of Women from Domestic Violence Act, 2005 was resisted on the ground that the parties had already been divorced, that the acts complained of preceded the Act, and that the wife had other remedies available to her. Held: The Supreme Court held that an act of domestic violence once committed, a subsequent decree of divorce will not absolve the liability of the respondent, and that a woman who has been subjected to domestic violence while she was in a domestic relationship may claim relief under the Act notwithstanding that the relationship has since ended. On the question of overlapping remedies, the Court held that the reliefs available under the Act, including monetary relief and maintenance under section 20, are in addition to and not in derogation of any other law, and that the existence of a proceeding under another statute does not bar an application under the Act. What the Magistrate must do is have regard to any order already made so that there is no duplication. Ratio: Relief under the Domestic Violence Act is additional to, and not in substitution for, the other maintenance remedies, and it survives the ending of the domestic relationship in respect of violence committed while it subsisted. |
3. The Overlap Problem and the Directions That Answer It
Figure 2: The problem, the directions, and the criteria for quantum
The cumulative character of the remedies produced a practical difficulty of considerable size. The same wife might have an application pending before a Magistrate under section 144, an application under section 24 of the Hindu Marriage Act before a Family Court, and an application under section 20 of the Domestic Violence Act before another Magistrate, with three different dates of commencement, three different amounts, and no mechanism by which any of the three courts would know of the others. The result was conflicting orders, a husband paying twice over, or a wife recovering nothing while three proceedings ran.
3.1 The directions
The Supreme Court addressed the problem comprehensively in 2020, laying down directions that now govern every maintenance proceeding in the country.
Subject | The direction |
|---|---|
Overlapping jurisdiction | Where a claimant has moved more than one forum, she must disclose in the subsequent proceeding the previous proceeding and any order made in it. The court dealing with the subsequent application shall take into account the earlier order and adjust the maintenance already awarded. The remedies are not barred, but the amounts are not duplicated |
Affidavit of disclosure | Both parties must file an affidavit of disclosure of assets and liabilities in the prescribed format annexed to the judgment, disclosing income, assets, liabilities and expenditure. The format is to be used in every maintenance proceeding, including under the personal laws and the Domestic Violence Act |
Criteria for quantum | The status of the parties; the reasonable needs of the claimant and the children; the educational and professional qualifications of the claimant and whether she gave up employment for family responsibilities; whether she has an independent income sufficient to maintain her accustomed standard of living; the income, property and liabilities of the respondent; the number of persons he has to maintain; and the additional burden where she has custody of the children |
Date from which awarded | Maintenance shall in all cases be awarded from the date of the application. The court may in an appropriate case direct payment of arrears in instalments |
Enforcement | An order may be enforced as a decree of a civil court, and the provisions on the execution of a money decree, including attachment and the arrest of the judgment-debtor, are available in addition to the enforcement provisions of the criminal statute |
Serving the order | The court is to fix a reasonable period for compliance and to ensure that the order is served and enforced without the claimant being driven to repeated applications |
📖 Rajnesh v. Neha, (2021) 2 SCC 324 Facts: An appeal against an order of interim maintenance led the Supreme Court to consider the whole field of maintenance law. It found that claimants were driven to multiple forums under different statutes, that there was no uniformity in the criteria applied, in the date from which maintenance was awarded, or in the disclosure required of the parties, and that orders once obtained were difficult to enforce. Held: The Court laid down comprehensive guidelines covering the entire field. It directed that where successive claims are made under different enactments, the party must disclose the earlier proceeding and any order, and the court must adjust the amount already awarded, so that the remedies remain available but the liability is not duplicated. It prescribed an affidavit of disclosure of assets and liabilities to be filed by both parties in every maintenance proceeding, annexing the format. It set out the criteria for determining the quantum, including the status of the parties, the reasonable needs of the claimant and the children, her qualifications and employment, the income and liabilities of the respondent, and the burden of the children’s maintenance, which it held to be a joint obligation of both parents. It held that maintenance shall be awarded from the date of the application in all cases. And it directed that orders be enforceable as a decree of a civil court, in addition to the criminal enforcement machinery. Ratio: The several maintenance remedies remain cumulative, but they are to be administered as a single system: with disclosure of earlier proceedings, adjustment of earlier orders, uniform criteria for quantum, maintenance from the date of the application, and civil enforcement. |
4. Choosing the Remedy
The claimant’s situation | The remedy ordinarily appropriate |
|---|---|
She needs money now, and has no matrimonial proceeding pending | Section 144 BNSS. Summary, interim maintenance within sixty days, and enforceable by any Magistrate wherever he may be |
A matrimonial petition is already pending | Section 24 of the Hindu Marriage Act, for maintenance pendente lite and expenses of the proceeding, in the same court |
A decree has been passed | Section 25 of the Hindu Marriage Act, for permanent alimony, which may be a gross sum and may be secured on immovable property |
She wants a substantive and enduring right, and is prepared to litigate | Section 18 of the Hindu Adoptions and Maintenance Act, by a civil suit, which produces a decree and is not subject to the limits of a summary proceeding |
There has been domestic violence | Section 20 of the Domestic Violence Act, which also permits a residence order, a protection order and compensation, and which is available to an aggrieved person in a domestic relationship and not only to a wife |
She is a widowed daughter-in-law | Section 19 of the Hindu Adoptions and Maintenance Act, against the father-in-law, subject to the conditions that section imposes |
She is not a Hindu and there has been no domestic violence | Section 144 BNSS, which is secular; and the remedy under her own personal law where one exists |
Aged parents seeking maintenance from children | Section 144 BNSS, and section 20 of the Hindu Adoptions and Maintenance Act where the parties are Hindus, and the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, which provides a tribunal and a summary procedure |
5. Key Takeaways
The position stated shortly 1. Four regimes operate concurrently: section 144 BNSS, sections 24 and 25 of the Hindu Marriage Act, sections 18 to 22 of the Hindu Adoptions and Maintenance Act, and section 20 of the Domestic Violence Act. 2. Section 144 is secular, summary and criminal in form; the Hindu Marriage Act remedy is ancillary to a pending matrimonial proceeding; the Hindu Adoptions and Maintenance Act creates a substantive civil right; and the Domestic Violence Act requires an act of domestic violence and is available to an aggrieved person in a domestic relationship. 3. The remedies are cumulative, not alternative. Section 20 of the Domestic Violence Act says so in terms, and the other statutes do not exclude one another. 4. A compromise or order in a summary proceeding under section 144 does not bar a suit on the substantive right under the personal law: Nagendrappa Natikar. 5. Relief under the Domestic Violence Act is in addition to and not in derogation of other remedies, and survives the ending of the domestic relationship in respect of violence committed while it subsisted: Juveria Abdul Majid Patni. 6. The claimant must disclose any earlier proceeding and order, and the later court must take it into account and adjust the amount, so that the same liability is not paid twice. 7. Both parties must file an affidavit of disclosure of assets and liabilities in the prescribed format, in every maintenance proceeding under every statute. 8. The criteria for quantum are uniform: the status of the parties, the reasonable needs of the claimant and children, her qualifications and employment, her independent income, the income and liabilities of the respondent, and the number of dependants. 9. Maintenance is to be awarded from the date of the application in all cases. 10. The maintenance of minor children is a joint obligation of both parents, and orders are enforceable as a decree of a civil court in addition to the criminal enforcement machinery: Rajnesh v. Neha. |
6. Frequently Asked Questions
Can a wife claim maintenance under more than one law at the same time?
Yes. The remedies are cumulative and a claim under one does not bar a claim under another. But she must disclose the earlier proceeding and any order made in it, and the later court must take it into account and adjust the amount so that the same liability is not paid twice.
What is the difference between section 144 BNSS and section 18 of the Hindu Adoptions and Maintenance Act?
Section 144 is a summary criminal remedy available to persons of every religion, requiring neglect or refusal and inability to maintain oneself, and producing a tentative order. Section 18 creates a substantive civil right of a Hindu wife to be maintained, enforceable by a suit, independently of any neglect or refusal, and producing a decree.
Does a compromise in a section 144 proceeding bar a later claim?
No. The Supreme Court held in Nagendrappa Natikar v. Neelamma that a proceeding under the summary provision is tentative and does not foreclose a substantive claim under the personal law. The sum already received is taken into account.
Is maintenance under the Domestic Violence Act in addition to other maintenance?
Yes. Section 20 expressly permits an order in addition to an order of maintenance under section 144 of the Sanhita or any other law, and the Supreme Court has held that the reliefs under the Act are in addition to and not in derogation of any other law.
What is the affidavit of disclosure of assets and liabilities?
A sworn statement of income, assets, liabilities and expenditure, in the format annexed to the judgment in Rajnesh v. Neha, which both parties must file in every maintenance proceeding under any statute. It exists so that the court can fix the quantum on material rather than on assertion.
From what date is maintenance awarded?
From the date of the application, in all cases and under all the statutes. The Supreme Court so directed in Rajnesh v. Neha, and the court may permit arrears to be paid in instalments where a lump sum would be oppressive.
Related Topics
- Maintenance under the BNSS, 2023: Sections 144 to 147
- Maintenance of a Muslim Woman under the BNSS, 2023
- The Victim under the BNSS, 2023
- Rights of a Female Accused under the BNSS, 2023
- Trial of Offences under the BNS and Other Laws: Sections 4 and 5
- Maintenance of Public Order and Tranquillity: Sections 148 to 167