Maintenance of Wife, Children and Parents under BNSS, 2023

Maintenance of Wife, Children and Parents under BNSS, 2023

# Maintenance of Wife, Children and Parents under BNSS, 2023

**Introduction:** Maintenance law in India seeks to prevent destitution of dependents by obligating family

members to support those unable to maintain themselves. Under the new Bharatiya Nagarik Suraksha

Sanhita (BNSS), 2023 - which has replaced the Code of Criminal Procedure, 1973 - Sections 144 and 145

restate and refine the law on maintenance of wives, children and parents. Section 144 empowers the court to

order maintenance when a person "having sufficient means" neglects his dependents. The law is remedial

and humanitarian in purpose, reflecting a long line of case law (e.g. *Mohd. Ahmed Khan v. Shah Bano

Begum*, 1985) holding that maintenance provisions are secular and apply to all citizens. This answer

explains the provisions of Sections 144 and 145 BNSS, discusses leading cases, and illustrates their

application.

## Explanation of Legal Provisions

**Section 144 BNSS - Order for maintenance:** Section 144(1) specifies the classes of dependents entitled

to maintenance. A First Class Judicial Magistrate may order a person with sufficient means to pay monthly

maintenance to: (a) his wife who is "unable to maintain herself" (the term "wife" includes a divorced woman

not remarried); (b) his legitimate or illegitimate minor child, married or unmarried, who cannot maintain itself;

(c) his legitimate or illegitimate adult child (except a married daughter) who, by reason of physical or mental

disability, is unable to maintain himself or herself; and (d) his father or mother who is unable to maintain

themselves. Upon proof of neglect or refusal to maintain, the Magistrate may fix a monthly rate of

maintenance payable to the dependent.

Several special provisions are notable. First, where the applicant is a minor female child, Section 144(1)

allows maintenance to be ordered from her father (instead of her husband) if the husband is not of sufficient

means. Second, the Magistrate may grant *interim* maintenance and litigation expenses to a dependent

during the pendency of proceedings; such interim applications are to be decided as far as possible within 60

days of notice. Third, Section 144(2) provides that any maintenance (or interim maintenance) awarded shall

be payable from the date of the order (or from the date of application, if so ordered).
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Section 144(3) addresses enforcement: if a person ordered to pay maintenance willfully defaults, the

Magistrate may issue a warrant to levy the amount due (as if levying a fine) and may sentence the defaulter

to up to one month's imprisonment (or until payment) for each month's unpaid allowance. A warrant cannot

be issued unless an application is made within one year of the debt becoming due. These enforcement

provisions underscore that maintenance orders are binding and insist on timely compliance.

Finally, Sections 144(4)-(5) (echoing old CrPC provisions) create exceptions for the wife's entitlement. A wife

is **not** entitled to maintenance if she is living in adultery, if she unreasonably refuses to live with her

husband, or if the separation is by mutual consent. If it is proven that the wife's conduct falls within these

exceptions, any existing maintenance order shall be cancelled. However, the statute also protects the wife's

justified refusal to cohabit: if the husband offers to maintain his wife on condition of her returning, but she

refuses for "just ground", the court may still grant maintenance. Notably, keeping a mistress or contracting

another marriage is deemed a "just ground" for the wife to refuse cohabitation. Thus, Section 144 balances

the duty to support dependents with safeguards against misuse.

**Section 145 BNSS - Jurisdiction and Procedure:** Section 145 deals with how maintenance cases are filed

and conducted. It provides that proceedings under Section 144 may be initiated in any district where the

person against whom maintenance is sought (the respondent) is present, or where he or his wife resides, or

where he last resided with his wife (or with the mother of an illegitimate child). This mirrors the old rule that

the case can be filed where the respondent is accessible or connected by residence, ensuring reasonable

venue.

Importantly, Section 145(2) mandates that evidence in maintenance proceedings be taken in the presence of

the person against whom maintenance is sought, or of his pleader if his attendance is dispensed with. This

ensures fairness by allowing cross-examination. If the respondent wilfully avoids service or attendance, the

Magistrate may hear the case *ex parte* (in his absence). Any ex parte order can be set aside if the

respondent applies within three months and shows good cause (possibly with terms as to costs).

Section 145(3) empowers the court to order costs in maintenance proceedings as it deems just. Although not

often highlighted, this provision can deter frivolous claims or defences, by shifting costs. Overall, Section 145

BNSS ensures that maintenance applications are heard expeditiously and fairly in appropriate forums.
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## Relevant Case Laws

Maintenance law has been shaped by many judicial pronouncements. Two landmark Supreme Court cases

illustrate key principles relevant to Sections 144-145 BNSS:

***Mohd. Ahmed Khan v. Shah Bano Begum* (1985)**: This celebrated case reaffirmed the secular nature of

maintenance law. The Court held that Section 125 CrPC (now 144 BNSS) applies to all citizens regardless of

religion, and a Muslim husband's obligation to maintain a divorced wife is unaffected by personal law. In Shah

Bano, the bench unanimously stated that the availability of the remedy under Sec.125 "is not affected by the

existence of any personal law" and that Section 125 provides an independent obligation for maintenance.

This means that under BNSS 144, any wife (including a divorced Muslim wife who has not remarried) can

claim maintenance if she cannot maintain herself. The legacy of Shah Bano is that maintenance law is to be

interpreted broadly in favor of dependents, reflecting a constitutional commitment to justice and equality.

***Rajnesh v. Neha* (2020)**: In this case, the Supreme Court framed comprehensive guidelines to

streamline maintenance proceedings. The Court observed that often parties file maintenance claims with

scanty evidence and undisclosed finances, making it difficult to determine a fair quantum. Rajnesh v. Neha

therefore directed that applicants and respondents must file affidavits of disclosure listing all assets, income

and liabilities, to enable an objective assessment of maintenance. The Court also provided criteria for fixing

maintenance (considering the parties' needs and means, the standard of living, number of dependents, etc.).

Notably, the Court reaffirmed that a husband's duty to support his minor child survives even after divorce: as

held in *Neha Tyagi v. Deepak Tyagi* (2022), the divorced father must maintain his child until majority. This

aligns with Section 144's inclusion of minor children. The Supreme Court has since emphasized that these

guidelines (including requiring financial disclosure) must be followed in all maintenance cases. Although

BNSS is new, the principles from *Rajnesh* (2017) and similar cases will guide courts in applying Sections

144-145, ensuring fair, evidence-based orders.

Other cases bolster these points. For example, in *Vijaya Arbat v. Kashirao Sawai* (1987), the Supreme

Court held that both sons and daughters have equal duty to maintain their parents under Section 125 CrPC.

This underpins the gender-neutral language of BNSS 144, which entitles either child to support parents.

Decisions like *Duldul v. Sorab* (1974) emphasize that a father's obligation to maintain a minor child is not

vitiated by changes in the parents' marital status. Together, these cases illustrate the broad, humanitarian
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approach the courts have taken - an approach that Sections 144-145 of BNSS now encapsulate.

## Illustrations

**Illustration 1:** A and B were married and have a son C (age 10). A, who has a steady income, abandons B

and C. B applies under Section 144 BNSS. Upon proving that A has sufficient means but neglects to support

his wife and child, the Magistrate orders A to pay a monthly maintenance for B and C. This order takes effect

from the date of application. If A disobeys, a warrant can be issued against him and he may face jail for

defaults.

**Illustration 2:** X is married to minor Y (who is 17). Y obtains a divorce decree, but her husband X has no

income. The Magistrate may order X's father to pay maintenance to Y under the proviso of Section 144(1)

until Y reaches majority, since the husband is not of sufficient means.

**Illustration 3:** P has divorced Q and remarried. Q lives with R as a partner. Q sues P under Section 144.

Although P had offered maintenance on condition Q live with him, Q refuses on the ground that P has a

mistress. The Magistrate, considering P's conduct, holds Q's refusal justified and grants maintenance

anyway.

**Illustration 4:** A married couple separate by mutual consent and remain friends. The wife applies for

maintenance under Section 144. The Magistrate may refuse the claim, since mutual separation (with

consent) disentitles her.

## Conclusion

Sections 144 and 145 of the BNSS, 2023 continue India's commitment to social justice by ensuring that

wives, children (legitimate or illegitimate), and parents are not left destitute. Section 144 clearly enumerates

eligible dependents and empowers Magistrates to order maintenance and interim relief, with enforcement

measures for defaults. Section 145 provides for convenient jurisdiction and fair procedure, including evidence

in the presence of the respondent and costs provisions. The provisions largely echo their predecessors in

CrPC 1973 but are framed in the context of BNSS's liberal philosophy. Landmark cases like *Shah Bano* and

*Rajnesh v. Neha* remind us that maintenance laws are to be interpreted liberally to secure the welfare of the
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vulnerable. In sum, BNSS 144-145 form a comprehensive scheme to uphold the legal duty of support within

families, in line with modern judicial guidance.

**Sources:** BNSS Sections 144-145; *Mohd. Ahmed Khan v. Shah Bano*; *Rajnesh v. Neha*; *Vijaya Arbat

v. Sawai* (all as cited).