Executive Summary

Maintenance under Section 144 of the Bharatiya Nagarik Suraksha Sanhita 2023 (BNSS) constitutes the primary statutory remedy for the wife, children, and parents of a person who has neglected or refused to maintain them. This provision — which corresponds to Section 125 of the Code of Criminal Procedure 1973 (CrPC) and is replicated in the BNSS 2023 with effect from 1 July 2024 — provides a swift, accessible, and summary mechanism for securing maintenance before a Magistrate of First Class, independent of the longer and more complex personal-law remedies available under Hindu, Muslim, Christian, and Parsi personal laws. The question of how courts determine the quantum of maintenance under Section 144 BNSS is one of enormous practical importance in Gujarat, where Family Courts in Ahmedabad, Surat, Vadodara, and Rajkot exercise concurrent jurisdiction in maintenance matters. The Supreme Court’s landmark decision in Rajnesh v. Neha (2020) 4 SCC 153 has introduced a structured framework for the assessment of maintenance quantum, including mandatory income disclosure obligations, guidelines for interim maintenance, and directions for the uniform enforcement of maintenance orders. This article examines the statutory framework for maintenance under Section 144 BNSS, the categories of persons entitled to claim, the procedure before the Magistrate and the Family Court, the factors governing quantum, the interaction with personal-law remedies, and the judicial framework developed by the Supreme Court.

Statutory Framework

Section 144 BNSS 2023: The Entitlement

Section 144 of the BNSS 2023 provides that if any person having sufficient means neglects or refuses to maintain (a) his wife, unable to maintain herself; (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself; (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, upon proof of such neglect or refusal, may order such person to make a monthly allowance for the maintenance of his wife, such child, or such father or mother.

The provision accordingly extends to four distinct categories of claimants: the wife (including in certain circumstances the divorced wife), minor children, adult children with disability, and parents. Each category has specific conditions for entitlement that require separate consideration.

The Wife

The wife’s entitlement under Section 144 BNSS is conditional upon her being unable to maintain herself. The inability to maintain oneself is not an absolute impecuniosity; courts have interpreted the phrase to mean an inability to maintain oneself in reasonable comfort having regard to the standard of living of the parties and the wife’s reasonable needs. A wife who is employed but whose income is significantly less than what is required to maintain the standard of living enjoyed during the marriage may still be entitled to maintenance.

Section 144 also provides for maintenance of the divorced wife in certain circumstances: a divorced Muslim woman’s rights are governed by the Muslim Women (Protection of Rights on Divorce) Act 1986, and the interplay between that statute and Section 144 BNSS has been the subject of extensive judicial attention, including the Supreme Court’s decision in Danial Latifi v. Union of India (2001) 7 SCC 740, where the Court interpreted the 1986 Act to ensure that the provision made for the divorced Muslim wife was not less than what a court would award under Section 125 CrPC (now Section 144 BNSS).

Children

The entitlement of legitimate and illegitimate minor children to maintenance under Section 144 BNSS is unqualified by any requirement of the child’s inability to maintain itself in the ordinary sense, since minor children are by definition dependent. The obligation extends to minor children of both sexes and regardless of the sex of the custodial parent. In practice, the primary dispute in children’s maintenance cases concerns the quantum of the monthly allowance rather than the entitlement.

Parents

The extension of Section 144 BNSS to the maintenance of parents — father and mother unable to maintain themselves — reflects the social policy of the Indian legislature in preserving the obligation of children to support their aged parents. The obligation under Section 144 applies to the father and mother of the respondent, and where the claimant parents are able to approach only one child under Section 144 (though they may have other children), the court may take into account the resources of other children in determining the quantum.

Section 125 CrPC to Section 144 BNSS: The Transition

The BNSS 2023 came into force on 1 July 2024. Section 144 BNSS is substantially identical in terms to Section 125 CrPC. The judicial precedents developed under Section 125 CrPC — including the Supreme Court’s decisions in Rajnesh v. Neha (2020) and Dwarika Prasad Satpathy v. Bidyut Prava Dixit (1999) — continue to apply with full force to proceedings under Section 144 BNSS, since the text of the provision has not been materially altered.

Interaction with Personal Law Remedies

Maintenance under Section 144 BNSS is a criminal remedy — it is sought before a Magistrate or, in appropriate cases, before a Family Court — and it operates alongside and not in exclusion of personal-law maintenance remedies. Under the Hindu Adoptions and Maintenance Act 1956, a Hindu wife is entitled to be maintained by her husband, and the quantum of maintenance is determined under Section 23 of that Act by reference to the position and status of the parties, the husband’s ability to maintain, the wife’s own property and income, and other relevant factors. Under the Muslim Women (Protection of Rights on Divorce) Act 1986, the divorced Muslim wife is entitled to a reasonable and fair provision and maintenance. Under the Hindu Marriage Act 1955, permanent alimony and maintenance may be awarded under Section 25 upon passing a decree of divorce, judicial separation, or nullity.

The remedies under these personal laws are not mutually exclusive of Section 144 BNSS maintenance, and in practice a claimant may simultaneously maintain a petition under Section 144 BNSS and seek maintenance under personal law in matrimonial proceedings before the Family Court. Courts have, however, consistently held that maintenance awarded under one regime must be taken into account when determining the quantum under another, to prevent double recovery.

Procedural Landscape

Jurisdiction

Section 144 BNSS applications are filed before a Magistrate of the First Class exercising jurisdiction in the area where the applicant resides, where the respondent resides, or where the respondent last resided with the applicant. In Gujarat, Family Courts established under the Family Courts Act 1984 in Ahmedabad, Surat, Vadodara, and Rajkot exercise exclusive or concurrent jurisdiction over maintenance applications under Section 144 BNSS (and its predecessor Section 125 CrPC) by virtue of Section 7 of the Family Courts Act 1984, which vests in Family Courts the jurisdiction exercisable by a Magistrate of the First Class in proceedings under Section 125 CrPC.

The Application

The application must be filed by the claimant, supported by an affidavit disclosing the claimant’s financial position, needs, and circumstances. The respondent is served and is required to file a reply disclosing his income, assets, liabilities, and other relevant financial particulars. Following the Supreme Court’s directions in Rajnesh v. Neha (2020), both parties are required to file an Affidavit of Disclosure of Assets and Liabilities in the form appended to that judgment. This mandatory disclosure obligation has significantly improved the quality of financial information available to courts in maintenance proceedings, and has reduced the ability of respondents to suppress income.

Interim Maintenance

At the interlocutory stage, the claimant may apply for interim maintenance. The court assesses the prima facie entitlement and the reasonable quantum of interim maintenance, which is intended to tide over the claimant during the pendency of the main application. In Dwarika Prasad Satpathy v. Bidyut Prava Dixit (1999) 7 SCC 675, the Supreme Court clarified that the standard of proof for interim maintenance is lower than for final maintenance, and that the court should make a rough assessment of the financial positions of the parties and award an amount that prevents the claimant from suffering penury during the pendency of the proceedings.

Factors for Determining Quantum: A Numbered Framework

Courts in Gujarat, guided by the Supreme Court’s directions in Rajnesh v. Neha (2020), assess the quantum of maintenance under Section 144 BNSS by reference to the following considerations, applied in sequence:

1. The income of the respondent, including salary, business income, rental income, income from investments, and any perquisites or benefits in kind. Where the respondent claims no income or a low income, the court examines documentary evidence including bank statements, income tax returns, and lifestyle indicators.
2. The assets owned by the respondent, both movable and immovable, and the income reasonably attributable to those assets.
3. The reasonable needs of the claimant, assessed by reference to the standard of living enjoyed by the parties during the subsistence of the marriage or cohabitation.
4. The income and assets of the claimant herself or himself. A wife who is employed and has independent income may receive a lower quantum of maintenance, since Section 144 BNSS is a need-based remedy. However, the court does not merely deduct the claimant’s income from the respondent’s; it assesses the gap between the claimant’s needs (calibrated to the marital standard of living) and the claimant’s ability to meet those needs.
5. The number of other dependants of the respondent, including children and parents, and any prior maintenance obligations of the respondent.
6. The age and health of the claimant and any special needs arising from age or health.
7. The conduct of the parties, which is relevant though not determinative. Courts have held that an adulterous wife is not entitled to maintenance under Section 144 BNSS (as under Section 125(4) CrPC), and that a husband who has unjustifiably abandoned the wife cannot plead her independent income as a reason to deny maintenance entirely.
8. The duration of the marriage and the contribution of the claimant to the household and to the respondent’s career or business.

The Rajnesh v. Neha (2020) Guidelines

In Rajnesh v. Neha (2020) 4 SCC 153, the Supreme Court issued comprehensive guidelines to address the inconsistency and lack of uniformity in maintenance orders across the country. The Court directed: that all maintenance proceedings shall require both parties to file an Affidavit of Disclosure of Assets and Liabilities; that Family Courts shall upload all maintenance orders on the National Judicial Data Grid (NJDG); that the multiplicity of proceedings for maintenance under different statutes shall be rationalised so as to avoid conflicting orders; and that the court may take into account the criteria enumerated in the judgment — which substantially correspond to the numbered factors set out above — in determining the quantum of maintenance. The Court also addressed the mode of enforcement of maintenance orders, directing that enforcement proceedings under Section 125(3) CrPC (now Section 144(3) BNSS) — which include arrest of the defaulting respondent — should be invoked where other enforcement mechanisms have failed.

Key Judicial Precedents

In Rajnesh v. Neha (2020) 4 SCC 153, the Supreme Court comprehensively addressed the law on maintenance quantum, mandatory disclosure, interim maintenance, and enforcement, and issued directions intended to bring uniformity to a landscape that had been marked by inconsistency across courts and jurisdictions.

In Dwarika Prasad Satpathy v. Bidyut Prava Dixit (1999) 7 SCC 675, the Supreme Court addressed interim maintenance and held that the court is not required at the interlocutory stage to conduct a detailed inquiry into income but must make a prima facie assessment sufficient to prevent the claimant from being left without support during the proceedings.

In Danial Latifi v. Union of India (2001) 7 SCC 740, the Supreme Court interpreted the Muslim Women (Protection of Rights on Divorce) Act 1986 to ensure that a divorced Muslim wife receives provision at least equivalent to what she would receive under Section 125 CrPC, reading the 1986 Act in conformity with constitutional guarantees of equality.

Conclusion

Maintenance under Section 144 BNSS is a secular, swift, and accessible remedy that operates across religious communities and is designed to prevent destitution of the wife, children, and parents of a person who has the means to support them but refuses or neglects to do so. The transition from Section 125 CrPC to Section 144 BNSS with effect from 1 July 2024 has preserved the substance of this entitlement, and the extensive judicial interpretations developed under Section 125 CrPC continue to govern proceedings under Section 144 BNSS. Gujarat’s Family Courts — in Ahmedabad, Surat, Vadodara, and Rajkot — exercise jurisdiction over these matters concurrently with their broader matrimonial jurisdiction, and the Supreme Court’s guidelines in Rajnesh v. Neha (2020) have provided a structured framework for the determination of quantum. The mandatory income-disclosure obligations introduced by that decision have strengthened the court’s ability to make realistic and fair assessments of quantum, and the direction to upload maintenance orders on the NJDG has increased transparency and accountability in the maintenance jurisprudence across India.

The post Maintenance & Alimony Under Section 144 BNSS: How Gujarat Courts Decide Quantum appeared first on Bhatt & Joshi Associates.