S.144-147 BNSS (corresponding to S.125-128 CrPC) provides a summary remedy for maintenance to prevent vagrancy and destitution. It is a measure of social justice enabling dependents who are unable to maintain themselves to claim maintenance from persons having sufficient means. This is a criminal proceeding, not a civil suit for maintenance.
Legal Framework
| Provision | Subject |
|---|---|
| S.144 BNSS (formerly S.125 CrPC) | Order for maintenance of wives, children, and parents |
| S.144(3) BNSS | Warrant for levy and imprisonment up to one month for each breach; application within one year |
| S.145 BNSS (formerly S.126 CrPC) | Procedure: place of filing, evidence, ex parte order |
| S.146 BNSS (formerly S.127 CrPC) | Alteration in allowance; cancellation on remarriage or receipt of sums under personal law |
| S.147 BNSS (formerly S.128 CrPC) | Enforcement of order anywhere; free copy of order |
Why: The purpose is to prevent vagrancy and destitution of dependents. It is a quick, summary, and inexpensive remedy available to those who cannot afford civil litigation. The proceeding is criminal in form but civil in substance.
Who Can Claim (S.144)
| Claimant | Conditions |
|---|---|
| Wife | Unable to maintain herself; includes divorced wife who has not remarried |
| Legitimate or illegitimate child | Unable to maintain itself, whether married or not (S.144(1)(b)); the father of a married minor daughter may be ordered to pay if her husband lacks means (first proviso) |
| Legitimate or illegitimate major child (not married daughter) | By reason of physical or mental abnormality unable to maintain |
| Father or mother | Unable to maintain himself/herself |
Against Whom:
A person having sufficient means who neglects or refuses to maintain:
- His wife (unable to maintain herself)
- His legitimate or illegitimate minor child
- His legitimate or illegitimate child (major) with physical/mental abnormality
- His father or mother (unable to maintain themselves)
Why: The obligation is rooted in the moral and legal duty to maintain dependents. S.144 converts this moral obligation into an enforceable legal command through the Magistrate's order.
Procedure
| Step | Detail |
|---|---|
| 1 | Application by dependent to Magistrate of First Class |
| 2 | Notice to respondent |
| 3 | Summary inquiry (evidence on affidavit permitted) |
| 4 | Magistrate determines: (a) sufficient means, (b) neglect/refusal, (c) inability of dependent |
| 5 | Order: monthly allowance as Magistrate considers just |
| 6 | Interim maintenance and expenses: court may order pendente lite (S.144(1), second proviso) |
| 7 | Maximum amount: no ceiling (the original S.125 CrPC capped it at Rs 500 a month, as noted in Shah Bano; the cap was later removed by amendment) |
Timeline (New under BNSS):
S.144(1), third proviso: an application for interim maintenance and expenses shall, as far as possible, be disposed of within 60 days from service of notice. No time limit is fixed for the final order. The allowance is payable from the date of the order or, if so ordered, from the date of the application (S.144(2)).
Grounds for Denial
Wife is not entitled to maintenance if:
- She is living in adultery
- She refuses to live with husband without sufficient reason
- They are living separately by mutual consent
Why: Maintenance is for the protection of the destitute, not for those who voluntarily abandon the marital obligation or breach its fundamental conditions.
Alteration and Enforcement
Alteration (S.145):
| Ground | Effect |
|---|---|
| Change in circumstances (S.146(1)) | Alteration of the allowance |
| Decision of a competent Civil Court (S.146(2)) | Cancel or vary the order |
| Divorced wife remarries (S.146(3)(a)) | Cancel from date of remarriage |
| Divorced wife received the whole sum payable under personal or customary law (S.146(3)(b)) | Cancel order |
| Divorced wife voluntarily surrendered her rights (S.146(3)(c)) | Cancel from date of order |
| Wife living in adultery, refusing without reason, or separate by consent (S.144(5)) | Cancel order |
Enforcement (S.146-147):
| Method | Provision |
|---|---|
| Warrant for levy | S.144(3): amount levied as fines are levied; application within one year of the amount falling due |
| Sentence of imprisonment | S.144(3): up to one month for each month's unpaid allowance, or until payment |
| Enforcement anywhere | S.147: any Magistrate where the respondent is may enforce the order |
Illustrations
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Quick remedy for the destitute: Kamla, a housewife with no income, is abandoned by her husband Vinod who earns Rs.50,000/month. She cannot afford a civil suit (court fees, lawyer, years of litigation). Under S.144 BNSS (formerly S.125 CrPC), she walks into the Magistrate's court, files a simple application, and within 60 days gets a maintenance order of Rs.15,000/month. No court fees, summary procedure, quick relief. This is why the provision is in the criminal code despite being civil in substance: it is designed for people who need speed and simplicity.
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Aged parent's claim: Raj, a software engineer earning Rs.1.5 lakh/month, refuses to support his aged mother who has no pension. His mother applies under S.144 BNSS. She only needs to show: (a) Raj has sufficient means (salary slips suffice), (b) he is neglecting/refusing to maintain her, and (c) she cannot maintain herself. She does not need to prove this "beyond reasonable doubt"; the proceeding is summary and evidence is recorded as in summons cases (S.145(2)). The Magistrate can order Raj to pay Rs.20,000/month.
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Adultery bar vs. domestic violence: If Sunita leaves her husband's home and is living with another man, she cannot claim maintenance under S.144 because she is "living in adultery." But if Sunita left because her husband was beating her every night, that is "sufficient reason" and the adultery bar does not apply. The key distinction: did she abandon the marriage voluntarily (no claim) or was she driven out (claim survives)?
Parents: Senior Citizens Act 2007
Parents may claim under S.144(1)(d) BNSS or under the Maintenance and Welfare of Parents and Senior Citizens Act 2007.
- S.4: A senior citizen, including a parent, unable to maintain himself may claim against children who are not minors, or, if childless, against a relative who is in possession of or would inherit his property.
- S.5: The application may be made by the senior citizen, by an authorised person or organisation, or taken up suo motu by the Tribunal; interim maintenance is available; the application is to be disposed of within ninety days of notice, extendable once by thirty days.
- S.9: The maximum monthly allowance is fixed by the State Government and cannot exceed Rs 10,000.
- S.12: A person entitled under both Chapter IX of the CrPC (now S.144 BNSS) and this Act may claim under either, but not both.
Key Cases
Nanak Chand v. Chandra Kishore (1969) Nanak Chand v Chandra Kishore 1969
Issue: Whether the maintenance proceeding is civil or criminal in nature.
Rule: S.125 CrPC (now S.144 BNSS) is a measure of social justice and is in the nature of a civil proceeding though placed in criminal statute.
Held: The order for maintenance is not a punishment but a measure to prevent vagrancy. The proceeding is quasi-civil in nature; strict rules of criminal procedure do not apply.
Savitaben Somabhai Bhatia v State of Gujarat (2005) Savitaben Somabhai Bhatia v State of Gujarat 2005
Issue: Whether a woman who married a man whose earlier marriage was subsisting can claim maintenance as "wife".
Rule: "Wife" in S.125 CrPC (now S.144 BNSS) means a legally wedded wife; a woman in a void second marriage is not covered, however harsh the result, until the legislature changes the law.
Held: The wife's claim failed; the child's maintenance was enhanced to Rs 850 a month, with an option to the husband to pay Rs 2 lakh in full settlement.
Mohd. Ahmed Khan v Shah Bano Begum (1985) Shah Bano v Mohd Ahmed Khan 1985
Issue: Whether a divorced Muslim wife can claim maintenance under S.125 CrPC beyond the iddat period.
Rule: S.125 is secular and applies to all communities; the Explanation includes a divorced wife who has not remarried, and payment of mahr is not a sum payable "on divorce" that bars the claim under S.127(3)(b).
Held: By a five-judge bench, the husband's appeal was dismissed and the divorced wife's maintenance upheld.
Chaturbhuj v Sita Bai (2007) Chaturbhuj v Sita Bai 2007
Issue: Whether a wife earning some income is "unable to maintain herself".
Rule: The test is whether she can maintain herself in the way she was used to in her husband's home; she need not be destitute, and some income does not bar the claim.
Held: Concurrent factual findings that the wife could not maintain herself were upheld; the husband's appeal was dismissed.
Rajnesh v. Neha (2021) Rajnesh v Neha 2021
Issue: What guidelines should govern maintenance proceedings to ensure uniformity?
Rule: Comprehensive guidelines laid down for maintenance orders across all statutes.
Held: Guidelines include: overlapping claims under different statutes must be adjusted; income affidavit mandatory; interim maintenance within specified time; children's needs assessed separately.
Distinctions
| Parameter | Maintenance under S.144 BNSS | Maintenance under Personal Law |
|---|---|---|
| Nature | Criminal proceeding (summary) | Civil suit |
| Court | Magistrate First Class | Family Court / Civil Court |
| Ceiling | No statutory maximum | As per entitlement (usually percentage of income) |
| Speed | 60-90 days mandated | Can take years |
| Appeal | Sessions Court | High Court |
| Scope | Only wife, children, parents | Varies by personal law |
| Enforcement | Imprisonment for default | Civil execution |
| Point | S.144 BNSS | Senior Citizens Act 2007 |
|---|---|---|
| Forum | Magistrate of the first class | Maintenance Tribunal |
| Claimants | Wife, children, father, mother | Parents, grandparents, childless senior citizens |
| Against | Person with sufficient means | Major children or relatives inheriting property |
| Ceiling | None | Rs 10,000 per month (S.9) |
| Overlap | Claim under either, not both (S.12) | Same |
Criticism and Debate
- History: S.488 of the 1898 Code covered only wives and children; S.125 CrPC 1973 added parents and divorced wives; the original Rs 500 monthly ceiling was later removed by amendment; BNSS 2023 renumbers the provisions as S.144-147.
- Debate: Shah Bano (1985) led to the Muslim Women (Protection of Rights on Divorce) Act 1986. Savitaben (2005) excludes women in void marriages, which critics call harsh; the Court itself left reform to the legislature.
- Conclusion: S.144 is a summary remedy against destitution; Chaturbhuj (2007) and Rajnesh v Neha (2020) make it practical and uniform.
Exam Scenario
W, a divorced Hindu woman, applies for maintenance under S.144 BNSS against her former husband H, claiming she is unable to maintain herself. H contends that W has a government job earning Rs.25,000 per month and is not destitute. Advise.
Under S.144, maintenance is available to a wife (including divorced wife who has not remarried) who is "unable to maintain herself." The test is relative: whether the wife's income is insufficient for a standard of living roughly equivalent to what she enjoyed during marriage. If W earns Rs.25,000 but her former marital standard required more, she may still be entitled to differential maintenance. However, if Rs.25,000 provides a reasonable standard and she is self-sufficient, the claim may fail. Per Rajnesh v. Neha (2021), both parties must file income affidavits. The Magistrate must assess: (1) W's actual income and expenses, (2) H's income and capacity, (3) the standard of living during marriage. If W is genuinely unable to maintain herself at the standard she was accustomed to, maintenance should be awarded as the difference. If W is self-sufficient by any reasonable standard, the claim may be dismissed.
Recall Check
- What is the maximum time for concluding maintenance inquiry under BNSS?
- Under what three grounds can a wife be denied maintenance?
- Can an illegitimate child claim maintenance under S.144?
Flashcards
Under S.144 BNSS, who can claim maintenance?
Wife (including divorced wife who has not remarried), legitimate/illegitimate minor children, major children with disability, and parents unable to maintain themselves.
What is the timeline for concluding maintenance inquiry under BNSS?
Only the interim maintenance application has a target: as far as possible 60 days from service of notice (S.144(1), third proviso).
What is the consequence of default in paying maintenance?
S.144(3): warrant for levy and imprisonment up to one month for each month unpaid, on application within one year.
Under what grounds can maintenance to wife be denied?
Living in adultery, refusing to live with husband without sufficient reason, or living separately by mutual consent.
Can a divorced Muslim woman claim maintenance under S.144?
Yes, per Mohd. Ahmed Khan v Shah Bano Begum (1985); S.125 CrPC (now S.144) is secular. See also the Muslim Women (Protection of Rights on Divorce) Act 1986.
What is the nature of proceedings under S.144?
Quasi-civil in nature though placed in criminal statute; purpose is prevention of vagrancy, not punishment.