Criminal Procedure: Code of Criminal Procedure, 1973 / Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)
Maintenance under the BNSS 2023 Sections 144 to 147
Maintenance under the BNSS, 2023: Sections 144 to 147, Wife, Children and Parents, Interim Maintenance, Procedure and Enforcement
Chapter X of the Bharatiya Nagarik Suraksha Sanhita, 2023 is the least criminal part of a criminal statute. It creates no offence, punishes nothing, and ends in an order to pay money. Its four sections, 144 to 147, exist because a wife, a child or an aged parent left destitute by a person who has the means to support them is a social problem that the civil courts are too slow and too expensive to solve, and because destitution left unremedied produces vagrancy and crime.
The provision corresponds to section 125 of the Code of Criminal Procedure, 1973 and is carried forward substantially unchanged. It is a secular provision: it applies to persons of every religion, and it operates whatever the personal law of the parties may say. It is summary: the inquiry is conducted in the manner of a summons case and the order it produces creates no right in property and decides no question of status. And it is preventive of destitution rather than punitive, which governs how every word in it is construed.
1. Object and Scope
The object of the provision has never been in doubt. It is to prevent vagrancy and destitution by providing a speedy remedy to those who are unable to maintain themselves and are entitled to look to another for support. Three consequences follow from that object, and each of them decides cases.
- The provision is construed liberally in favour of the claimant. A measure of social justice enacted to protect women, children and the aged is not to be read narrowly, and expressions in it are given the meaning that advances rather than defeats its purpose.
- The proceeding is summary and the findings are tentative. The Magistrate decides whether, prima facie, the relationship exists and the claimant is unable to maintain herself. He does not decide questions of status conclusively, and a civil court may afterwards decide otherwise, in which event section 146 permits the order to be varied.
- Delay defeats the object. A provision enacted to prevent destitution is worthless if the order takes years. That is why the Sanhita requires an application for interim maintenance to be disposed of, as far as possible, within sixty days of the service of notice, and why the courts have repeatedly deprecated the protraction of these proceedings.
📖 Bhuwan Mohan Singh v. Meena, (2015) 6 SCC 353 Facts: An application for maintenance remained pending for several years, and the wife and child were left without support throughout. The Court considered the manner in which such applications are dealt with by the Family Courts and what the obligation of the court is in a maintenance proceeding. Held: The Supreme Court held that the provision was conceived to ameliorate the agony, anguish and financial suffering of a woman who has left the matrimonial home for reasons the statute recognises, so that some suitable arrangement may be made to enable her to sustain herself and her children. It emphasised that a Family Court is not to be treated as an ordinary civil court and that adjournments in such matters are to be avoided; the sustenance of the wife and children cannot be left to await the leisure of the litigation. The Court held that maintenance is ordinarily to be awarded from the date of the application, since to award it from the date of the order is to penalise the claimant for the delay of the court, and it deprecated the practice of protracting these proceedings. Ratio: A maintenance proceeding is to be disposed of expeditiously, and maintenance ordinarily runs from the date of the application. The object of the section is defeated by delay as effectively as by refusal. |
2. Who May Claim: Section 144(1)
Figure 1: The four categories of claimant
Section 144(1), BNSS 2023 If any person having sufficient means neglects or refuses to maintain — (a) his wife, unable to maintain herself; or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself; or (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury, unable to maintain itself; or (d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate as the Magistrate thinks fit. Provided that the Magistrate may order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding; and the application for the monthly allowance for the interim maintenance and expenses shall, as far as possible, be disposed of within sixty days from the date of the service of notice. |
2.1 The two conditions common to every claim
Sufficient means. The person against whom the order is sought must have sufficient means to maintain the claimant. “Means” is not confined to actual income: an able-bodied person capable of earning cannot escape the obligation by remaining idle, and the court may proceed on his earning capacity. Nor is it confined to what he chooses to disclose; where he conceals his income, the court may draw an inference from his standard of living.
Neglect or refusal to maintain. There must be a neglect or a refusal, which imports something more than a failure. Where the claimant has left the household for reasons the law recognises and the person liable has not offered support, neglect is made out. A mere offer to maintain her on condition that she live with him is not conclusive, because the proviso to section 144(3) requires the Magistrate to consider her grounds of refusal, and the Explanation makes a second marriage or the keeping of a mistress a just ground.
2.2 The meaning of “wife”
⚠ Three points on the word “wife” It includes a divorced woman. Explanation (b) to section 144(1) provides that “wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. The right therefore survives the marriage, and is lost only on remarriage or on receipt of the whole sum payable under the personal law: section 146. It presupposes a marriage. A woman whose marriage is void, or who is a second wife during the subsistence of a first marriage, faces a difficulty, since strictly she is not a wife. The courts have taken a liberal view where the woman was unaware of the earlier marriage and had lived as a wife, and have held that a man who has induced a woman to live with him as his wife by suppressing the earlier marriage cannot be heard to deny the relationship in a proceeding of this kind. It has been urged that a long cohabitation should suffice. The Supreme Court has observed that a broad and expansive interpretation should be given to the term so as to include a woman who has lived with a man for a long period as his wife, and has referred the question to a larger Bench; the strict position awaits that decision. |
2.3 Children and parents
Claimant | Conditions | Note |
|---|---|---|
Minor child | Legitimate or illegitimate, married or not, unable to maintain itself | The obligation extends to an illegitimate child, which is one of the clearest indications that the section is directed at destitution and not at status. Where the minor is a married daughter, the second proviso permits an order against the father until she attains majority if the Magistrate is satisfied that the husband has not sufficient means |
Major child who is disabled | Legitimate or illegitimate, not being a married daughter, who has attained majority and is by reason of any physical or mental abnormality or injury unable to maintain itself | The obligation continues indefinitely so long as the incapacity does. It is the only case in which maintenance under this section is payable to an adult child |
Father or mother | Unable to maintain himself or herself | The obligation runs upwards. It binds a daughter as much as a son, and it is not confined to a son with no brothers. An adoptive parent and, in the view generally taken, a stepmother who has no natural son, are within it |
3. When a Wife Is Not Entitled: Section 144(4) and (5)
Three defences are available, and only three. Section 144(4) provides that no wife shall be entitled to receive an allowance from her husband if she is living in adultery, or if without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent. Section 144(5) provides that on proof that any of those grounds exists, the Magistrate shall cancel the order.
⚠ How the three defences are construed Living in adultery means a continuous course of conduct, not a single lapse. The expression is in the present continuous, and a past act, however proved, does not by itself disentitle her. Refusal without sufficient reason is the defence most often raised and most often fails. The burden is on the husband to show the offer and the absence of a sufficient reason; and the Explanation to section 144(3) makes a second marriage or the keeping of a mistress a just ground for her refusal. Cruelty, a demand for dowry and an unsafe matrimonial home have all been held sufficient reasons. Living separately by mutual consent requires consent to the separation as such, and does not cover a separation brought about by the conduct of the husband to which the wife has simply submitted. |
4. Procedure, Interim Maintenance and Enforcement
Figure 2: The proceeding from application to enforcement
4.1 Where to apply: section 145(2)
Proceedings may be taken against any person in any district where he is, or where he or his wife resides, or where he last resided with his wife or, as the case may be, with the mother of the illegitimate child. The three alternatives are deliberately wide, because a claimant left without means cannot be expected to litigate where the person liable chooses to live.
4.2 Interim maintenance
The proviso to section 144(1) permits an order for interim maintenance and the expenses of the proceeding during the pendency of the case, and requires the application to be disposed of, as far as possible, within sixty days from the date of service of notice. The provision is the single most practically important part of the section: a final order takes time, and a claimant who cannot eat in the meantime is not helped by a right she cannot enforce for two years.
4.3 The inquiry: section 145(1)
All evidence is to be taken in the presence of the person against whom an order is proposed to be made, or, when his personal attendance is dispensed with, in the presence of his advocate, and is to be recorded in the manner prescribed for summons cases. Where the Magistrate is satisfied that the person is wilfully avoiding service or wilfully neglecting to attend, he may proceed to hear and determine the case ex parte; and any order so made may be set aside for good cause shown on an application made within three months.
4.4 From what date
Section 144(2) provides that the allowance for maintenance or interim maintenance shall be payable from the date of the order, or if so ordered, from the date of the application. The discretion is therefore express, and the courts have held that maintenance should ordinarily be awarded from the date of the application, since the alternative penalises the claimant for the time the proceeding has taken.
4.5 Enforcement: sections 144(3) and 147
Element | Content |
|---|---|
The mode | A warrant for levying the amount due in the manner provided for levying fines |
On failure to levy | Imprisonment for a term which may extend to one month, or until payment if sooner made, for each month’s allowance remaining unpaid after the execution of the warrant |
The time limit | No warrant shall be issued for the recovery of any amount due unless the application is made to the Court within one year from the date on which it became due |
The nature of the imprisonment | It is a mode of enforcement and not a discharge of the liability. Undergoing it does not wipe out the arrears, which remain recoverable |
Where it may be enforced | Section 147: a copy of the order is given without payment to the person in whose favour it is made, and the order may be enforced by any Magistrate in any place where the person against whom it is made may be, on being satisfied as to his identity and the non-payment |
Section 147 deserves emphasis because it solves a real problem. A person against whom a maintenance order is made frequently moves away, and a claimant without means cannot follow him to enforce it. The section makes the order enforceable by any Magistrate wherever he may be, so the order travels with the person liable rather than remaining tied to the court that made it.
5. Alteration and Cancellation: Section 146
Ground | Consequence |
|---|---|
Change in circumstances of the person receiving or the person paying | The Magistrate may make such alteration in the allowance, or cancel the order, as he thinks fit. An increase in the means of the person liable, or in the needs of the claimant, is a change in circumstances |
A competent civil court has decided the question of status otherwise | The Magistrate shall cancel or vary the order in conformity with that decision |
A divorced woman has remarried | The Magistrate shall cancel the order from the date of her remarriage |
A divorced woman has received the whole sum payable on divorce under any customary or personal law | The Magistrate shall cancel the order, with effect, in the case of an order made before the divorce, from the date on which the order was made, and in any other case from the date of the divorce |
A divorced woman has voluntarily surrendered her rights after the divorce | The Magistrate shall cancel the order from the date of the surrender |
The person has failed to comply with a previous order without sufficient cause | That is not a ground for alteration; it is a matter for enforcement under section 144(3) |
The provision on the receipt of the whole sum payable under a customary or personal law is the one that matters most in practice, because it is the provision through which the personal law enters a secular proceeding. Its effect is that a payment made under the personal law is set off against the liability under the section, and the enquiry is whether what was paid amounts to a fair and reasonable provision for her future, not merely whether some sum was paid.
6. What the Sanhita Changed
Subject | Under section 125, CrPC | Under section 144, BNSS |
|---|---|---|
The four categories of claimant | Wife, minor child, disabled major child, father or mother | Unchanged |
“Wife” includes a divorced woman | Explanation (b) | Unchanged |
The ceiling on the allowance | Removed by amendment in 2001 | No ceiling |
Interim maintenance and expenses | Proviso inserted in 2001, with a sixty-day target | Unchanged, and the sixty-day provision retained |
Date from which payable | From the date of the order, or if so ordered from the date of the application | Unchanged |
Enforcement | Warrant as for fines; imprisonment up to one month per month unpaid; application within one year | Unchanged |
Procedure | Summons-case procedure, ex parte where service is wilfully avoided, set aside within three months | Unchanged |
Territorial jurisdiction | Where he is, where he or his wife resides, or where he last resided with her | Unchanged |
Alteration and cancellation | Change in circumstances, civil court decision, remarriage, receipt of the whole sum, surrender | Unchanged |
The chapter is therefore one of the least altered in the Sanhita. The substantive development in this area over the last decade has come not from the legislature but from the courts, and in particular from the directions on overlapping proceedings, on the disclosure of assets and on the criteria for fixing the quantum, which are examined in the topic comparing the several maintenance regimes.
7. Key Takeaways
The position stated shortly 1. Sections 144 to 147 correspond to sections 125 to 128 of the CrPC and are carried forward substantially unchanged. The provision is secular, summary and directed at preventing destitution. 2. Four categories may claim: the wife; a minor child, legitimate or illegitimate, married or not; a major child who is unable to maintain itself by reason of physical or mental abnormality or injury, not being a married daughter; and the father or mother. 3. Two conditions are common to every claim: the person must have sufficient means, which includes earning capacity, and must have neglected or refused to maintain. 4. “Wife” includes a divorced woman who has not remarried: Explanation (b) to section 144(1). 5. A wife is not entitled if she is living in adultery, or refuses without sufficient reason to live with her husband, or they are living separately by mutual consent. A second marriage or the keeping of a mistress by the husband is a just ground for her refusal. 6. Interim maintenance and the expenses of the proceeding may be ordered, and the application is to be disposed of as far as possible within sixty days of service of notice. 7. The inquiry follows summons-case procedure, evidence is taken in the presence of the person or his advocate, and an ex parte order may be set aside for good cause within three months. 8. Maintenance is payable from the date of the order or, if so ordered, from the date of the application, and the courts have held that it should ordinarily run from the date of the application: Bhuwan Mohan Singh. 9. Enforcement is by a warrant as for fines, with imprisonment up to one month for each month’s allowance unpaid, on an application made within one year. The imprisonment does not discharge the arrears. 10. Section 147 makes the order enforceable by any Magistrate wherever the person liable may be, so the order travels with him. |
8. Frequently Asked Questions
Who can claim maintenance under section 144 of the BNSS?
A wife unable to maintain herself; a minor child, legitimate or illegitimate and whether married or not, unable to maintain itself; a major child, not being a married daughter, unable to maintain itself by reason of any physical or mental abnormality or injury; and a father or mother unable to maintain himself or herself.
Can a divorced wife claim maintenance?
Yes. Explanation (b) to section 144(1) provides that “wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. The order is cancelled on her remarriage, or on her receiving the whole sum payable on divorce under customary or personal law.
Can a daughter be ordered to maintain her parents?
Yes. Section 144(1)(d) speaks of “any person having sufficient means” who neglects or refuses to maintain his father or mother. The obligation is not confined to sons, and a daughter with sufficient means is equally liable.
From what date is maintenance payable?
From the date of the order, or if so ordered, from the date of the application: section 144(2). The Supreme Court has held that it should ordinarily be awarded from the date of the application, since awarding it from the date of the order penalises the claimant for the delay in the proceeding.
What happens if maintenance is not paid?
The Magistrate may issue a warrant for levying the amount in the manner provided for levying fines, and on failure may sentence the person to imprisonment for a term which may extend to one month for each month’s allowance remaining unpaid. The application must be made within one year from the date on which the amount became due, and the imprisonment does not discharge the arrears.
Can a maintenance order be enforced in another district?
Yes. Section 147 provides that the order may be enforced by any Magistrate in any place where the person against whom it is made may be, on being satisfied as to his identity and the non-payment of the allowance.
Related Topics
- Maintenance under the BNSS Compared with the Personal Laws
- Maintenance of a Muslim Woman under the BNSS, 2023
- Maintenance of Public Order and Tranquillity: Sections 148 to 167
- Security for Keeping the Peace and Good Behaviour: Sections 125 to 143
- Summons Case and Warrant Case under the BNSS, 2023
- The Victim under the BNSS, 2023