In short: Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 lets a wife, a child or a parent who cannot maintain themselves claim a monthly allowance from a relative who has sufficient means and neglects them. Where a Family Court exists, that court hears the application and not the Magistrate. Interim maintenance is to be decided within sixty days of service of notice, and the allowance ordinarily runs from the date of the application.
Chapter X of the BNSS (sections 144 to 147) has taken over from Chapter IX of the Code of Criminal Procedure, 1973 (sections 125 to 128), and the substance is carried across almost word for word. The chapter is welfare legislation. It exists so that a wife, child or parent is not left destitute while a relative with means looks away, and it applies whatever the personal law of the parties may be, whether Hindu, Muslim, Christian or Parsi. What follows is the provision as it actually reads, with the points at which practice in the courts at Jodhpur departs from the usual textbook summary.
Section 144(1) names four claimants: a wife unable to maintain herself; a legitimate or illegitimate child, married or not, unable to maintain itself; a legitimate or illegitimate child who has attained majority and is unable to maintain itself by reason of any physical or mental abnormality or injury, a married daughter excepted; and a father or mother unable to maintain himself or herself. The Explanation to the sub-section settles a point still argued across the aisle almost every week: “wife” includes a woman who has been divorced by her husband, or who has obtained a divorce from him, and has not remarried. Divorce ends the marriage, not the claim.
Two provisos in the same sub-section are routinely missed. The first lets the court direct the father of a minor female child to pay until she attains majority where she is married but her husband is not possessed of sufficient means. The second is the actual source of the interim maintenance power, together with the expenses of the proceeding; it does not sit in sub-section (2), where many summaries of this section place it.
This is where a printed guide will send a party to the wrong building. Section 7(2)(a) of the Family Courts Act, 1984 vests the jurisdiction of a Magistrate of the first class under this chapter in the Family Court, and section 8(b) then withdraws it from the Magistrate altogether for any area where a Family Court has been established. Jodhpur has one. A maintenance application here is therefore presented in the Family Court, and one carried to a Judicial Magistrate comes back.
The choice of district comes from section 145(1), which offers four: where the respondent is; where he or his wife resides; where he last resided with his wife, or with the mother of the illegitimate child; or where his father or mother resides. The limb that does the most work in practice is the wife’s own residence. A woman who has returned to her parents’ home in Jodhpur may file here even though the marriage was lived out in another district, and an objection that the cause of action arose elsewhere does not survive the plain words of clause (b).
The third proviso to section 144(1) says that an application for interim maintenance and the expenses of the proceeding shall, as far as possible, be disposed of within sixty days from the date of service of notice of the application on the respondent. The clock starts at service. It does not start at the first hearing, and the distinction is not academic, because the ordinary cause of delay in a maintenance file is a respondent who will not take notice.
Section 145(2) answers exactly that. Where the court is satisfied that the respondent is wilfully avoiding service or wilfully neglecting to attend, it may proceed to hear and determine the case ex parte; such an order may be set aside for good cause on an application made within three months, on terms including costs. So I keep the service record complete from the first date, with the process server’s report, the endorsement of refusal and the registered-post tracking. That paper is what converts an evasive respondent into an ex parte order instead of six further dates.
There is no ceiling. The section fixes the allowance at “such monthly rate as such Magistrate thinks fit”, and the quantum guidelines in Rajnesh v. Neha (2020) supply the method: both sides file an affidavit of assets, liabilities and income, and the court works from the standard of living in the matrimonial home, the earning capacity of both parties and the needs of the dependants rather than from a salary slip alone.
On the date, section 144(2) has to be read with that judgment. The sub-section itself allows either the date of the order or, if so ordered, the date of the application; Rajnesh v. Neha directed that maintenance be awarded from the date of the application in every case, to end the divergence between courts on the question. Since a contested matter can run a year or more, the arrears counted from the filing date are usually the largest single figure in the case, and they are worth quantifying in the final order rather than leaving to a separate round of recovery.
Section 144(4) disentitles a wife who is living in adultery, who without sufficient reason refuses to live with her husband, or where the two are living separately by mutual consent. Section 144(5) goes further and requires the court to cancel an order already made on proof of the same three things. The husband has one more lever, in the second proviso to section 144(3): he may offer to maintain her on condition that she lives with him. The Explanation that follows blunts it. Where he has contracted a marriage with another woman or keeps a mistress, her refusal is to be considered just ground, and the order may be made notwithstanding the offer.
A maintenance order is not final in the way a decree is. Section 146(1) permits alteration on proof of a change in the circumstances of either party, and section 146(2) requires the order to be cancelled or varied where a competent civil court has decided the matter otherwise. Section 146(3) sets out three grounds on which an order in favour of a divorced woman must be cancelled: her remarriage; her receipt of the whole sum which was payable on divorce under the customary or personal law applicable to the parties; or a voluntary surrender of her right to maintenance after the divorce. Section 146(4) then directs the civil court hearing a claim for maintenance or dowry to take into account what has already been paid under the order, which is the statutory answer to the fear of recovering twice.
Section 144(3) is the recovery machinery, and it is stronger than its reputation. For every breach the court may issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence the defaulter to imprisonment for a term extending to one month, or until payment if sooner made, for the whole or part of each month’s allowance left unpaid after execution of the warrant. Then read the first proviso, which is where files are lost: no warrant is to be issued for recovery of any amount unless the application to levy it is made within one year from the date on which that amount became due. Arrears left to go stale beyond a year are gone, and in an otherwise sound maintenance matter this is the most common avoidable loss.
Section 147 carries the order across State lines. A copy of it is to be given without payment to the person in whose favour it is made, and it may be enforced by any Magistrate in any place where the respondent may be, on that Magistrate being satisfied about the identity of the parties and the non-payment. A husband who has shifted to Surat or Bengaluru has not moved beyond the reach of a Jodhpur order.
An appeal will not lie. Section 19(2) of the Family Courts Act excludes an appeal from an order passed under this chapter, while section 19(4) preserves the power of the High Court to call for and examine the record of such a proceeding, of its own motion or otherwise, and satisfy itself about the correctness, legality or propriety of the order. In practice a challenge to a Family Court maintenance order reaches the Jodhpur bench as a criminal miscellaneous petition invoking section 528 BNSS, and the drafting then has to identify a jurisdictional error or a finding no evidence supports, not merely a figure one side dislikes.
A Muslim divorced woman may invoke it. In Mohd. Abdul Samad v. State of Telangana (2024) the Supreme Court held that the remedy under section 125 CrPC, now section 144 BNSS, is available to her and is not displaced by the Muslim Women (Protection of Rights on Divorce) Act, 1986; the two remedies run alongside each other. In the Family Court the effect is that her claim is decided on means and neglect, as any other is, and the 1986 Act does not stand as a preliminary objection.
One more forum point, because it decides which building a second application goes to. Section 8(b) of the Family Courts Act withdraws from a magistrate only the jurisdiction under the maintenance chapter described above, so a parallel claim for monetary relief under section 20 of the Protection of Women from Domestic Violence Act, 2005 is still presented before the Judicial Magistrate and not in the Family Court. Two statutes, two buildings, one household. Which paper is filed where at Jodhpur is set out on the chamber’s page for an advocate in Jodhpur.