Money is not everything…… but it is important for living, and this fact cannot be denied. That money feeds you, puts clothing on your body, brings shelter over the head, pays medical bills, takes care of education, and the list goes on. When it comes to families, not all the family members are earning, and those who are not are dependants. Law recognizes certain dependants whose needs have to be taken care of by the others, who are legally bound to maintain those dependants. However, how efficient are these laws? What do they provide for? Can anyone in the family be bound to maintain the others, or are there specific relations in this aspect? Here, you are all set to get the grasp of maintenance section under BNSS, which got the character of Section 125 of CrPC after the new criminal laws came into force. The provision specifies who all are covered, and duties of the person who is bound by law to pay maintenance to those people.
Maintenance in Indian Law
There are several provisions in personal laws which provide some rights to the vulnerable defendants, to seek some allowance from the breadwinner. It is usually the wife, children, and parents. The marriage laws may be restricted to wife, provisions for senior citizens confined to old parents, and there are special provisions for children, be it minors or dependent adults. While religion may not address every relationship at a time, the secular provisions do the deed in this regard. Here, we are addressing one such secular provision only.
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Maintenance/Interim Maintenance under Section 125 CrPC
While there are family/personal laws for regulating the provisions related to maintenance, the Code of Criminal Procedure comprised a setup for wife, children and parents in need to be maintained by Court’s order. The said provision is time and again held to be secular. In other words, even if the religious laws do not provide anything about maintenance of a specific relation being a dependent, they can seek maintenance under Code of Criminal Procedure. Now that the new criminal laws have replaced the colonial laws, people get confused whether maintenance provision is the same or not. It may be noted that the said provision under Section 125 CrPC is adopted as it is for the maintenance section under BNSS.
Section 144 of Bharatiya Nagarik Suraksha Sanhita, 2023
“144. (1) If any person having sufficient means neglects or refuses to maintain—
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(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,
Comment: The above part of Section 144 of BNSS specifies the persons entitled to maintenance in case of negligence or refusal by the provider. Such persons include wife who is not able to maintain herself, a minor child (both legitimate and illegitimate) unable to maintain itself, a physically or mentally challenged or injured child who may have attained the age of majority, a father or mother who are unable to maintain themself. The provision specifically excludes a married daughter who has attained the age of majority.
Also read instances when Courts denied maintenance to educated wife.
a Judicial Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate as such Magistrate thinks fit and to pay the same to such person as the Magistrate may from time to time direct:
Comment: It states that if it could be proved that a person neglected or refused to maintain the relatives mentioned above, the Judicial Magistrate so concerned may direct such person to pay a monthly allowance as it finds suitable to be paid from time to time.
Provided that the Judicial Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Judicial Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means:
Comment: While child marriage is prohibited, the provision here states that maintenance may be ordered in favour of a minor daughter if she is married and her husband lacks sufficient means to maintain herself.
Provided further that the Judicial Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Judicial Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct:
Comment: While the proceedings are pending for deciding whether a person is liable to pay maintenance, the provision here states that the Magistrate may order payment of interim maintenance and litigation expenses from time to time.
Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.
Comment: Maintenance Section under BNSS requires the matter under Section 144 to be disposed of within 60 days from the date on which notice was served to the person.
Explanation.—For the purposes of this Chapter,—
(a) “minor” means a person who, under the provisions of the Indian Majority Act, 1875 is deemed not to have attained his majority;
(b) “wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
Comment: The two pointers above explain that a minor is a person who is yet to attain the age of majority, and the term ‘wife’ also covers a divorced wife unless she marries again. It clarifies that maintenance Section under BNSS may require the husband to pay maintenance to his wife even after divorce, and the same may only stop if she marries someone else.
(2) Any such allowance for the maintenance or interim maintenance and expenses of proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.
Comment: This part may confuse many, but it states that maintenance, if ordered, is payable from the date when application under Section 125 of CrPC or Section 144 of BNSS is made before the Court.
(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month’s allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:
Comment: It states that if the Magistrate directs a person to pay certain maintenance, and such person fails to do so, the Magistrate may issue a warrant for every event of breach, to be levied as fine, and may also attract sentencing. In other words, if a person fails to pay maintenance under Section 144 of BNSS, the fine may be recovered by the authorities through other means, or he may also have to go to jail for a month.
Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:
Comment: This part clarifies that the Magistrate can issue warrant for recovery of amount only if application is made by the other party within 1 year from the date when payment of maintenance was first breached.
Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.
Comment: In case the husband agrees to maintain his wife on the condition that she agrees to stay with him, and the wife refuses the same, the Magistrate needs to look into the reasons whether such refusal is justified.
Explanation.—If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him.
Comment: Maintenance section under BNSS clarifies that the husband marrying another woman, or keeping a mistress was a justified ground of refusal by wife.
(4) No wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding, from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.
Comment: The Section for maintenance under BNSS clarifies that in case a wife is living in adultery/cheating on her husband, or refuses to live with her husband without any reasonable explanation, or the two were living separately after mutual understanding, maintenance can not be awarded.
(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Judicial Magistrate shall cancel the order.
Comment: Section 144 of BNSS makes a significant condition that if maintenance order is passed in favour of wife, who is later found being indulged in adultery, or without any reason refuses to live with husband, or living separate was a mutual decision of the couple, the said maintenance order has to be cancelled by the Magistrate.
