Maintenance is the obligation to provide food, clothing, shelter and, in the case of an unmarried daughter, marriage expenses to those who are unable to maintain themselves. It arises under three distinct sources: personal law, the secular criminal remedy (now S.144 BNSS), and the matrimonial statutes (HMA, SMA, IDA). This note maps all three and shows where they overlap.
The Secular Remedy: S.144 BNSS (formerly S.125 CrPC)
Purpose
S.144 BNSS is a secular, summary remedy directed at preventing vagrancy and destitution. It is available to persons of all religions and operates independently of personal law. It is not a matrimonial remedy; it is a social welfare provision in the criminal procedural code.
Who May Claim (S.144(1))
| Claimant | Condition |
|---|---|
| Wife (including a divorced wife who has not remarried) | Unable to maintain herself |
| Legitimate or illegitimate minor child | Unable to maintain itself |
| Legitimate or illegitimate major child (not being a married daughter) | By reason of physical or mental abnormality or injury, unable to maintain itself |
| Father or mother | Unable to maintain himself or herself |
"Wife" includes a divorced wife: The explanation to S.144 makes clear that a "wife" includes a woman who has been divorced or who has obtained a divorce and has not remarried. This prevents a husband from defeating the claim by pronouncing divorce.
Against Whom
The order is directed against a person who, having sufficient means, neglects or refuses to maintain the claimant.
Forum and Procedure
| Feature | Content |
|---|---|
| Forum | Magistrate of the first class (now under BNSS, the Judicial Magistrate First Class) |
| Nature | Summary proceedings; no elaborate trial |
| Standard of proof | Preponderance of probability |
| Interim maintenance | The Magistrate may award interim maintenance during the pendency of proceedings under S.145 BNSS |
| Quantum | Such monthly allowance as the Magistrate considers fit, having regard to the standard of living |
| Enforcement | The order is enforced by levying a fine, or by warrant of attachment and sale, or by sentence of imprisonment |
When the Order May Be Cancelled or Varied (S.146 BNSS)
| Ground for cancellation | Provision |
|---|---|
| The wife is living in adultery | S.146(3)(a) |
| The wife refuses without sufficient reason to live with her husband | S.146(3)(b), now S.146(3)(b) BNSS |
| The parties are living separately by mutual consent | S.146(3)(c) |
Why S.146(3)(b) is important: It is the standard defence available to the husband. But "sufficient reason" is construed broadly, and cruelty, bigamy or the husband's own misconduct constitute sufficient reason for refusing to live with him.
Relationship with Personal Law
S.144 BNSS is concurrent with, not a substitute for, personal law. A wife may claim under S.144 BNSS and under her personal law matrimonial statute simultaneously. There is no bar on cumulation.
Facts: A Christian wife claimed maintenance under S.125 CrPC (now S.144 BNSS) in addition to her IDA alimony entitlement.
Issue: Does a personal law alimony proceeding bar a claim under S.125 CrPC?
Held: No. S.125 is a secular remedy available to all wives irrespective of religion and is cumulative with the personal law remedy. The two serve different purposes: S.125 prevents destitution; alimony compensates for the dissolution of the marriage.
Relevance: The foundational authority on cumulation.
Maintenance Under Hindu Law
Hindu Adoptions and Maintenance Act 1956
| Provision | Content |
|---|---|
| S.18 | A Hindu wife is entitled to be maintained by her husband during the subsistence of the marriage. She may live separately without forfeiting her right if the husband is guilty of cruelty, desertion, conversion, bigamy, keeps a concubine, has leprosy or venereal disease, or any other cause justifying separate living |
| S.19 | A Hindu wife's right to maintenance ceases on her unchastity or conversion |
| S.20 | A Hindu is bound to maintain his or her legitimate and illegitimate children, aged or infirm parents, and a widowed daughter in law (dependent) |
| S.22 | Maintenance, whether fixed by agreement or decree, may be altered on a material change in the circumstances of either party |
Why S.18 is wider than S.144 BNSS for a Hindu wife: Under S.18, the wife's right to maintenance during the marriage is an absolute right against the husband, not conditioned on inability to maintain herself. The section grants the right, then lists situations in which she may claim it while living separately. Under S.144 BNSS, by contrast, the wife must show she is unable to maintain herself.
Maintenance Under the Hindu Marriage Act 1955
| Provision | Content |
|---|---|
| S.24 | Maintenance pendente lite and expenses of proceedings |
| S.25 | Permanent alimony and maintenance on or after a decree of divorce, nullity or judicial separation |
These are matrimonial remedies, available only in or after matrimonial proceedings. They are distinct from S.18 HAMA, which operates during the subsistence of the marriage.
Maintenance Under Muslim Law
Under Muslim personal law, a husband is bound to maintain his wife during the marriage if she is faithful and obedient (the classical rule). On divorce, the obligation is limited to the iddat period (roughly three months), after which it ceases.
The statutory expansion is the Muslim Women (Protection of Rights on Divorce) Act 1986 (as interpreted after Danial Latifi v Union of India, 2001):
| Provision | Content |
|---|---|
| S.3(1)(a) | Reasonable and fair provision and maintenance to be made and paid within the iddat period |
| Interpretation (Danial Latifi) | The "provision" must be sufficient to cover the divorced wife's entire future, not merely the iddat period. The lump sum or arrangement must be settled within the iddat period, but its value must reflect her long-term needs |
S.144 BNSS remains available to a Muslim divorced wife who has not remarried and is unable to maintain herself. This was settled by the Supreme Court in several decisions and is now beyond controversy.
Facts: A Muslim wife sought maintenance under S.125 CrPC during the pendency of a suit for restitution.
Issue: Whether S.125 CrPC (now S.144 BNSS) is available to a Muslim wife where a parallel personal law proceeding is pending.
Held: S.125 CrPC is a secular remedy and is available irrespective of the personal law proceeding. The two are concurrent.
Relevance: Reinforces the cumulation principle for Muslim wives.
Maintenance Under Christian Law
Under the Indian Divorce Act 1869:
| Provision | Content |
|---|---|
| S.36 | Alimony pendente lite |
| S.37 | Permanent alimony, capped at one fifth of the husband's net income |
These are dealt with in detail in FL2-5.2. S.144 BNSS is concurrently available (Molly Joseph).
Maintenance to Parents and Dependents
Under S.144 BNSS
A father or mother who is unable to maintain himself or herself may claim against a child having sufficient means.
Under the Maintenance and Welfare of Parents and Senior Citizens Act 2007
| Feature | Content |
|---|---|
| Applicable to | All senior citizens (60 years and above) and parents unable to maintain themselves |
| Against | Children (including sons, daughters, grandsons, granddaughters) and relatives inheriting the property |
| Forum | Maintenance Tribunal constituted under the Act |
| Ceiling | Rs. 10,000 per month (raised to this level by many States) |
| Penalty for abandonment | Imprisonment up to three months or fine up to Rs. 5,000 or both |
Comparative Table
| Basis | S.144 BNSS | S.18 HAMA | S.37 IDA | 1986 Act (Muslim) |
|---|---|---|---|---|
| Available to | All religions | Hindus | Christians | Muslim divorced wives |
| Nature | Secular, summary | Personal law, civil | Personal law, civil | Statutory personal law |
| Forum | Magistrate | Civil court or family court | District court / family court | Magistrate (S.3(2)) |
| Condition | Unable to maintain herself | Absolute right during marriage | Ancillary to decree | Within the iddat period, but covering future needs |
| Ceiling | No statutory ceiling | No ceiling | One fifth of net income | No ceiling (reasonable and fair) |
| Cumulation | Yes, with any personal law remedy | Yes, with S.144 BNSS | Yes (Molly Joseph) | Yes, with S.144 BNSS |
Recall Check
- What is the purpose of S.144 BNSS and how does it differ from a personal law maintenance remedy?
- Name the grounds on which a maintenance order under S.144 BNSS may be cancelled.
- Can a Hindu wife claim under both S.18 HAMA and S.144 BNSS?
- What is the practical effect of Danial Latifi on the 1986 Act?
Key Cases
Molly Joseph v George Sebastian (1996) Molly Joseph v George Sebastian 1996
Issue: Whether S.125 CrPC (now S.144 BNSS) is available alongside personal law alimony.
Rule: The two remedies are concurrent and cumulative.
Held: The Christian wife could pursue both.
Mary Roy v State of Kerala (1986) Mary Roy v State of Kerala 1986
Issue: Whether the Indian Succession Act applied to Christians in Kerala or the Travancore Christian Succession Act.
Rule: The ISA applied, giving daughters an equal share.
Relevance to maintenance: The case changed the property base of Christian women in Kerala, affecting their ability to maintain themselves and therefore their entitlement under S.125.
Safiya Sultana v State of UP (2021) Safiya Sultana v State of UP 2021
Issue: Whether S.125 CrPC is available to a Muslim wife alongside a personal law proceeding.
Rule: S.125 is secular and concurrent.
Held: Available irrespective of the parallel personal law proceeding.
Distinctions
| Basis | S.144 BNSS | S.18 HAMA |
|---|---|---|
| Available to | All wives, children, parents | Hindu wives only |
| Forum | Magistrate | Civil court |
| Condition for wife | Unable to maintain herself | Absolute right; no need to show inability |
| Ceases on | Remarriage, adultery, living apart by mutual consent | Unchastity or conversion (S.19) |
| Nature | Criminal procedural; prevents vagrancy | Civil; personal law entitlement |
| Cumulation | Yes | Yes, with S.144 BNSS |
| Basis | Maintenance under S.144 BNSS | Alimony under Matrimonial Statute |
|---|---|---|
| Purpose | Prevent destitution | Compensate for dissolution |
| Timing | During or after marriage | On or after a decree |
| Needs inquiry | Whether claimant is unable to maintain herself | Broader discretion (means, conduct, circumstances) |
| Forum | Magistrate | District court / family court |
| Appeal | Sessions Court | High Court |
| Basis | 1986 Act (S.3) as read with Danial Latifi | S.144 BNSS |
|---|---|---|
| Trigger | Divorce | Neglect or refusal to maintain |
| Period | Provision must be settled within iddat, but must cover future | Ongoing monthly allowance |
| Who pays | Former husband | Husband (or child, for parents) |
| Cumulation | Yes, with S.144 BNSS | Yes, with the 1986 Act |
Flashcards
What is the purpose of S.144 BNSS?
It is a secular, summary remedy directed at preventing vagrancy and destitution, available to all religions.
Who may claim under S.144 BNSS?
A wife (including a divorced wife who has not remarried), minor children, major children unable to maintain themselves due to disability, and parents unable to maintain themselves.
Can a wife claim under S.144 BNSS and her personal law statute simultaneously?
Yes. Molly Joseph v George Sebastian (1996) holds the two are concurrent and cumulative.
On what grounds may a maintenance order under S.146 BNSS be cancelled?
The wife is living in adultery, refuses without sufficient reason to live with the husband, or the parties are living separately by mutual consent.
What is the ceiling on permanent alimony under the IDA?
One fifth of the husband's average net income for the three years preceding the order (S.37 IDA).
Does maintenance for a Muslim divorced wife end at iddat?
Under the 1986 Act as read with Danial Latifi, the provision must be settled within the iddat period but must be reasonable and fair enough to cover her entire future.
What did Safiya Sultana v State of UP confirm?
S.125 CrPC (now S.144 BNSS) is available to a Muslim wife irrespective of a pending personal law proceeding.
Exam Scenario
Problem: Kavita, a Hindu, married Arun in 2015. In 2022 Arun takes a second wife. Kavita leaves the matrimonial home and files for maintenance under S.144 BNSS before the Magistrate. Arun objects that she is living apart by choice and should have filed under S.18 HAMA instead. Separately, Fatima, a Muslim divorced wife who received Rs. 50,000 during her iddat from her former husband Imran, files under S.144 BNSS six months after the iddat, claiming the sum was inadequate for her future. Imran argues that the 1986 Act is a complete code and bars S.144 BNSS. Advise both.
Step 1: Kavita's claim under S.144 BNSS
Kavita is a wife unable to maintain herself. She satisfies the condition in S.144(1) and the claim is maintainable.
Arun's first objection, that she is living apart by choice, engages S.146(3)(b) BNSS. But "sufficient reason" for living apart includes the husband's bigamy. A second marriage during the subsistence of the first is a ground justifying separate living both under S.146(3)(b) and under S.18(2)(d) HAMA.
His second objection, that she should have filed under S.18 HAMA instead, is wrong in law. The two remedies are concurrent. Molly Joseph (1996) settles the point. She may pursue both.
Step 2: Test Fatima's S.144 BNSS claim
| Issue | Answer |
|---|---|
| Is S.144 BNSS available to a Muslim divorced wife? | Yes. The explanation to S.144 includes a divorced wife who has not remarried |
| Does the 1986 Act bar it? | No. Danial Latifi (2001) read the 1986 Act as requiring reasonable and fair provision, not as ousting S.144 BNSS |
| Was the Rs. 50,000 adequate? | That is a question of fact. If it does not cover her future, it was not "reasonable and fair" within Danial Latifi |
| Can she file after the iddat? | Yes. S.144 BNSS is not limited by the iddat period. Safiya Sultana (2021) confirms concurrence |
Imran's contention that the 1986 Act is a complete code is rejected. The two operate in parallel.
Step 3: Summarise the remedies available to each
| Claimant | S.144 BNSS | Personal law remedy | Cumulation |
|---|---|---|---|
| Kavita | Maintainable; bigamy is sufficient reason for living apart | S.18 HAMA: absolute right, no need to prove inability | Yes |
| Fatima | Maintainable; divorced wife who has not remarried | 1986 Act S.3: reasonable and fair provision settled within iddat | Yes (Safiya Sultana) |
S.146(3)(b) does not help Arun. "Refusing to live with the husband" is a ground for cancellation only where the refusal is without sufficient reason. Bigamy is a sufficient reason by any standard.
The 1986 Act is not a bar. After Danial Latifi (2001), the 1986 Act requires provision covering the wife's entire future, settled within the iddat. It does not oust S.144 BNSS, which remains available alongside it.
Conclusion. Kavita succeeds under S.144 BNSS and may also claim under S.18 HAMA. Fatima succeeds under S.144 BNSS, and may additionally challenge the adequacy of the Rs. 50,000 under the 1986 Act read with Danial Latifi.
See Also
- The Indian Divorce Act, 1869: Salient Features : the Christian alimony regime under S.36 and S.37 IDA.
- Maintenance under Muslim Law : the personal law maintenance obligation during and after marriage.
- The Muslim Women (Protection of Rights on Divorce) Act, 1986 : the 1986 Act and the Danial Latifi interpretation.
- Special Marriage Act, 1954 : the SMA's own maintenance provisions under S.36 to S.38.