Maintenance Under BNSS: Understanding Section 144 of Bharatiya Nagarik Suraksha Sanhita, 2023

Introduction: The Shift from Section 125 CrPC to Section 144 BNSS

For decades, Section 125 of the Code of Criminal Procedure, 1973 (CrPC) served as one of the most critical legal remedies in India to prevent destitution and vagrancy. It provided a swift, summary mechanism for wives, children, and elderly parents to claim maintenance regardless of their personal religious laws.

With the enactment and enforcement of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaces the CrPC, this vital social justice remedy has been re-codified under Section 144 of the BNSS. While the foundational objective remains unchanged—to prevent destitution and provide speedy financial sustenance—the procedural framework under the BNSS introduces modernized timelines, streamlined enforcement mechanisms, and contemporary administrative alignments.

For spouses, children, and parents navigating marital breakdowns or familial neglect across jurisdictions such as Mumbai, Thane, and Mira Road, understanding the procedural nuances under Section 144 of the BNSS is essential.

Who Can Claim Maintenance Under Section 144 of BNSS?

Section 144(1) of the BNSS maintains broad inclusivity, ensuring that vulnerable family members who are unable to maintain themselves can seek financial support from a person who possesses sufficient means but neglects or refuses to maintain them.

Under this section, an application for maintenance can be preferred by:

The Wife: A wife who is unable to maintain herself. Under the explanation to Section 144, the term "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
Minor Children: Legitimate or illegitimate minor children (whether married or unmarried) who are unable to maintain themselves.
Major Children with Disabilities: Legitimate or illegitimate children (other than a married daughter) who have attained majority, where such child is, by reason of any physical or mental abnormality or injury, unable to maintain themselves.
Parents: A father or mother who is unable to maintain himself or herself.

Note on Married Minor Daughters: If a minor female child is married and her husband does not possess sufficient means, the Magistrate may order the father to provide maintenance until she attains majority.

Essential Ingredients to Establish a Claim

To succeed in an application under Section 144 of the BNSS, the applicant must establish three primary elements:

Sufficient Means of the Respondent: The non-applicant has the financial capacity, property, employment, or earning capacity to provide support.
Neglect or Refusal: The respondent has either expressly refused or implicitly neglected to provide reasonable maintenance.
Inability to Maintain Oneself: The claimant does not possess sufficient independent income or liquid assets to support their basic standard of living commensurate with the respondent's status.

In contemporary practice, courts routinely direct both parties to file detailed affidavits of assets and liabilities to accurately determine the quantum of maintenance, adhering to the standardized financial disclosure guidelines laid down by the Supreme Court of India.

Interim Maintenance and Statutory Timelines

One of the most pressing concerns in maintenance litigation is the delay between filing the petition and the final adjudication. Recognizing that destitute claimants cannot survive prolonged proceedings, Section 144 explicitly incorporates provisions for interim maintenance and expenses of the proceeding.

Key Procedural Protections:

Immediate Sustenance: The Magistrate may order the respondent to pay a monthly allowance for interim maintenance and litigation expenses during the pendency of the main petition.
Statutory 60-Day Target: The second proviso to Section 144(1) mandates that an application for interim maintenance and expenses of proceedings shall, as far as possible, be disposed of within sixty days from the date of service of notice of the application to the respondent.

This statutory timeline reinforces the summary nature of the proceeding, preventing respondents from employing dilatory tactics to starve out claimants.

Grounds on Which a Wife’s Maintenance May Be Denied or Cancelled

Under Section 144(4) and 144(5) of the BNSS, a wife is not entitled to receive maintenance or interim maintenance if:

She is living in adultery.
Without any sufficient reason, she refuses to live with her husband.
The parties are living separately by mutual consent.

If an order has already been passed and the respondent proves any of these grounds, the Magistrate is empowered to cancel the maintenance order.

Jurisdiction and Procedure: Sections 145 and 146 of BNSS

Understanding where to initiate proceedings is vital for litigants. Under Section 145 of the BNSS (corresponding to Section 126 of the old CrPC), proceedings may be taken against any person in any district:

Where the respondent is;
Where the respondent or his wife resides; or
Where the respondent last resided with his wife, or with the mother of the illegitimate child.

All evidence in such proceedings must be taken in the presence of the respondent or their pleader. However, if the Magistrate is satisfied that the respondent is wilfully avoiding service or neglecting to attend court, the Magistrate is empowered to hear and determine the case ex parte.

Alteration of Allowance (Section 146 BNSS)

Under Section 146, either party can apply for an alteration, enhancement, or reduction of the monthly allowance upon demonstrating a material change in circumstances (such as a job loss, substantial salary increase, illness, or remarriage).

Enforcement of Maintenance Orders: Section 147 BNSS

An order of maintenance is futile if it cannot be executed effectively. Section 147 of the BNSS (formerly Section 128 CrPC) provides robust enforcement machinery:

Service of Order: A copy of the order must be delivered to the person in whose favor it is made or their guardian free of cost.
Warrant for Recovery: If the respondent fails without sufficient cause to comply with the order, the Magistrate may issue a warrant for levying the amount due in the manner provided for levying fines (including attachment and sale of movable or immovable property).
Civil Imprisonment for Default: The Magistrate may sentence the defaulting person to imprisonment for a term which may extend to one month, or until payment if sooner made, for each month’s default.
Limitation Period: An application for the recovery of arrears must be made within one year from the date on which the amount became due.

Practical Insights for Litigants in Mumbai, Thane, and Mira Road

In metropolitan regions like Mumbai and its extended suburbs:

Family Courts vs. Magistrates: Where Family Courts are established (such as at Bandra in Mumbai or in Thane), the powers of a Judicial Magistrate under Section 144 of the BNSS are exercised by the Family Court under the Family Courts Act, 1984. In areas where specialized Family Courts do not hold territorial jurisdiction, petitions are filed directly before the Judicial Magistrate First Class (JMFC) or Metropolitan Magistrate.
Simultaneous Remedies: Litigants should note that claiming maintenance under Section 144 of the BNSS does not bar an aggrieved spouse from seeking monetary relief under the Protection of Women from Domestic Violence Act, 2005 (PWDVA) or interim alimony under Section 24 of the Hindu Marriage Act, 1955. However, any adjustment of payments between different courts must be transparently disclosed to avoid double recovery.

Frequently Asked Questions (FAQs)

1. Does an earning wife have the right to claim maintenance under Section 144 BNSS?

Having some income does not automatically disqualify a wife. The court evaluates whether her income is sufficient to maintain herself in a lifestyle reasonably comparable to that of her husband. If her income falls short, the court may award partial maintenance to bridge the deficit.

2. Can a working woman be ordered to pay maintenance to her husband under Section 144 BNSS?

No. Section 144 of the BNSS specifically governs maintenance payable by a person to his wife, children, and parents. It does not provide for maintenance payable to a husband. (Husbands seeking maintenance must look to specific personal laws, such as Section 25 of the Hindu Marriage Act, 1955, subject to statutory conditions).

3. What happens if the husband changes his residence to another state after an order is passed?

Under Section 147 of the BNSS, an order of maintenance may be enforced by any Magistrate in any place where the respondent resides or is found, upon satisfaction of identity and non-payment.

4. Are live-in partners eligible for maintenance under Section 144 BNSS?

While Section 144 specifically uses the term "wife", Indian jurisprudence has interpreted continuous, long-term live-in relationships with cohabitation under domestic violence legislation favorably. However, for direct claims under Section 144 BNSS, strict proof or strong legal presumption of marriage is typically examined by the court.

Conclusion & Legal Consultation

The transition from the CrPC to the Bharatiya Nagarik Suraksha Sanhita, 2023 modernizes and clarifies procedural safeguards for maintenance claims without diluting their protective intent. Whether you are seeking emergency financial sustenance or responding to a maintenance claim, presenting a well-documented petition supported by compliant asset disclosures is crucial.

If you require guidance regarding maintenance proceedings, interim relief applications, or enforcement actions under the BNSS across Mumbai, Thane, or Mira Road, contact APS Law to schedule a professional consultation.