Maintenance under Section 144 BNSS: what actually changed

On 1 July 2024 the Code of Criminal Procedure, 1973 was replaced by the Bharatiya Nagarik Suraksha Sanhita, 2023. For anyone with a maintenance case — running or contemplated — the practical question is simple: what changed?

The short answer is that the substantive law barely moved. The section number did, and so did some of the procedural discipline around it. That discipline is where most maintenance matters are actually decided.

Where the provision now sits

What was Section 125 of the CrPC is now Section 144 of the BNSS. The enforcement provision that was Section 128 CrPC is now Section 147 BNSS. Orders passed under Section 125 before 1 July 2024 remain valid and enforceable; proceedings begun under the old Code continue under it, while fresh applications are filed under Section 144.

If you are reading an older judgment or a lawyer’s note that speaks of “125 proceedings”, the reasoning still applies. The numbering is the only thing that has been overtaken.

Who can claim

Section 144 is deliberately wide, and it is not a Hindu law provision — it applies regardless of religion. Four categories may apply:

• a wife, including a divorced wife who has not remarried;
• a minor child, legitimate or illegitimate, married or not;
• an adult child who cannot maintain themselves by reason of a physical or mental abnormality or injury;
• parents — father or mother — who are unable to maintain themselves.

The claim lies against a person who has “sufficient means”. Note what that does not say. It does not say sufficient income. Courts have consistently read “means” to include earning capacity, so a respondent who is able-bodied and qualified cannot defeat a claim simply by producing a low salary slip or by having resigned.

What the court must be satisfied of

Three things, and the burden on each sits differently:

1. Sufficient means of the respondent — proved by the applicant, but inferred readily from qualifications, lifestyle and past earnings.
2. Neglect or refusal to maintain — usually established by the fact of separation and non-payment.
3. Inability of the applicant to maintain themselves — the most contested limb. A wife who earns is not automatically disentitled; the question is whether her income allows her to live at a standard reasonably commensurate with the matrimonial home.

Against this, the statute sets out disentitlements. A wife is not entitled if she is living in adultery, if she refuses without sufficient reason to live with her husband, or if the parties are living separately by mutual consent. “Sufficient reason” has been held to cover cruelty, desertion by the husband, and his taking a second wife.

Interim maintenance and the sixty-day clock

The most useful feature of the section for a claimant is that interim maintenance can be ordered while the main application is pending. The statute directs that an application for interim maintenance shall, as far as possible, be disposed of within sixty days from the date of service of notice on the respondent.

The Rajnesh v. Neha affidavit

In Rajnesh v. Neha (2021) 2 SCC 324 the Supreme Court laid down a framework that now governs maintenance proceedings across every statute — Section 144 BNSS, the Hindu Marriage Act, the Hindu Adoption and Maintenance Act, the Protection of Women from Domestic Violence Act and the Special Marriage Act alike.

The central direction is that both parties must file an affidavit of disclosure of assets and liabilities in a prescribed format. It is not a formality. Courts routinely draw adverse inferences against a party whose affidavit is evasive, and a well-prepared affidavit — supported by income tax returns, bank statements, EPF records, property documents and, where relevant, evidence of the other side’s lifestyle — is the single strongest document in most maintenance files.

Rajnesh also addressed overlapping claims: where maintenance has been awarded under one statute, a party claiming under another must disclose it, and the court will adjust rather than duplicate.

From what date is maintenance payable

This is the point most often missed, and it is worth money. Rajnesh held that maintenance is to be awarded from the date of the application, not from the date of the order. Given that maintenance proceedings routinely take a year or more, the difference between the two dates is frequently the largest single figure in the case.

The practical consequence: file early. Every month of delay in filing is a month of arrears permanently forgone.

Enforcement

An order that is not complied with is enforced under Section 147 BNSS. The magistrate may issue a warrant for recovery of the amount in the manner provided for fines, and may sentence the defaulter to imprisonment for up to one month for each month’s default.

There is a limitation trap here: no warrant shall be issued for the recovery of any amount due unless application is made to the court within one year from the date on which it became due. Arrears left unclaimed for more than a year become very difficult to recover. If payment stops, act within the year.

Beyond the section itself, courts have used attachment of salary, striking off the defence in connected matrimonial proceedings, and contempt to compel compliance.

Practical points

• File first, perfect later. The date of filing fixes the date from which maintenance runs.
• Complete service properly. Almost every “delayed” maintenance case we see was delayed at the service stage, not the argument stage.
• Prepare the disclosure affidavit seriously. It is evidence, and it will be tested.
• Do not conflate remedies. Section 144 BNSS, Section 24 of the Hindu Marriage Act and Section 20 of the Domestic Violence Act can run in parallel, but the amounts will be adjusted against each other. Claiming without disclosing invites an adverse finding.
• Respondents: engage early. A respondent who appears, files a candid affidavit and makes a reasonable offer at the interim stage is treated very differently from one who is dragged in by warrant.