Maintenance Allowance under Section 144 of BNSS, 2023
Maintenance Allowance
Various laws are applicable to the matters of maintenance allowance to wives, parents, sons, daughters and other dependents.
Wife can file case for grant of maintenance allowance under 144 of BNSS (earlier 125 CrPC).
Law Relating to Maintenance
The following Acts covered within the jurisdiction of the Family Courts established under the provisions of the Family Courts Act, 1984 are as under:-
(i) Family Courts Act, 1984
(ii) Hindu Adoptions And Maintenance Act, 1956
(iii) Code of Criminal Procedure, 1973 (Sections 125 to 128)
(iv) Protection of Women From Domestic Violence Act, 2005
(v) Protection of Women From Domestic Violence Rules, 2006
(vi) Hindu Marriage Act, 1955
(vii) Muslim Women (Protection of Rights on Divorce) Act, 1986
(viii) Muslim Women (Protection of Rights on Divorce) Rules, 1986
(ix) Maintenance And Welfare of Parents And Old Citizens Act, 2007
(x) Maintenance Orders Enforcement Act, 1921
(xi) Special Marriage Act, 1954
(xii) Divorce Act, 1869
(xiii) Parsi Marriage And Divorce Act, 1936
(xiv) Dissolution of Muslim Marriage Act, 1939
(xv) Hindu Minority And Guardianship Act, 1956
(xvi) Guardians And Wards Act, 1890
(xvii) Christian Marriage Act, 1872
(xviii) Foreign Marriage Act, 1969
(xix) Muslim Women Personal Law (Shariat) Application Act, 1937
(xx) Prohibition of Child Marriage Act, 2006
(xxi) Anand Marriage Act, 1909
(xxii) Dowry Prohibition Act, 1961
(xxiii) Marriage Validation Act, 1892
(xxiv) Converts Marriage Dissolution Act, 1866
(xxv) Judicial Pronouncements of Courts
(xxvi) The Bharatiya Nagarik Suraksha Sahita, 2023
Maintenance under Section 144 of BNSS
'Wife' in Section 144 BNSS and under Hindu Adoptions & Maintenance Act, 1956 means only legally married wife.
Scope of Section 144 BNSS cannot make artificial definition to include a woman not lawfully married in the expression 'wife'.
Woman not legally married is not entitled to maintenance u/s 125 CrPC.
Case Reference: Savitaben Vs. State of Gujarat, (2005) 3 SCC 636
Proceedings under section 144 of BNSS for Maintenance Allowance
The jurisdiction of magistrate under chapter X BNSS is not strictly a criminal jurisdiction. Proceedings u/s 125 CrPC are civil in nature.
Case Reference: Vijay Kumar Prasad Vs. State of Bihar, (2004) 5 SCC 196
Live-in relationships & its preconditions to be treated as marriage
Merely spending weekends together or a one night stand would not make it a ‘domestic relationship’ u/s 2(f) of the Protection of Women from Domestic Violence Act,2005.
All live-in relationships will not amount to marriage. Live-in relationships in the nature of marriage under 2005 Act must fulfill the following conditions:-
(a) the couple must hold themselves out to society as being akin to spouses.
(b) they must be of legal age to marry
(c) they must be otherwise qualified to enter into a legal marriage, including being unmarried.
(d) they must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.
Case Reference: D. Velusamy v. D. Patchaiammal, AIR 2011 SC 479.
Strict proof of marriage should not be insisted or Maintenance
Where a man and woman have been living together as husband and spouse for a reasonably long period of time, strict proof of marriage should not be a pre-condition for maintenance.
Case Reference: Chanmuniya Vs. Virender Kumar Singh Kushwaha, JT 2010 (11) SC 132
Second wife when not entitled to maintenance
Second wife marrying Hindu male having legally wedded wife, after coming into force of the Hindu Marriage Act, 1955 is void ipso jure u/s 5(i) of the Act and is not entitled to claim of maintenance either under the Hindu Marriage Act, 1955 or u/s 125 of the CrPC.
Case Reference: Mangala Bhivaji Lad Vs. Dhondiba Rambhau Aher, AIR 2010 Bombay 122
Transfer Petition Before Apex Court
If divorce case is pending in another state and wife is living in another state, in such situation wife can file a transfer petition before apex court through a criminal advocate in Delhi.
Sometime the apex court may allow the petition and sometimes refused by allowing appearance through VC, therefore before filing any petition individua should consult with advocate at Delhi.
Frequently Asked Questions
Can women claim maintenance after divorce ?
Yes, divorced women continue to enjoy status of 'wife' for the purpose of maintenance allowance.
Can first wife claim for maintenance when husband is facing criminal trial of bigamy ?
Yes, during the pendency of the criminal trial of bigamy also, the first wife can claim maintenance allowance.
Can child born out from illegal second marriage claim maintenance ?
Yes, the child born as a result of such union acquires legitimate status u/s 16(1) of the Hindu Marriage Act, 1955 and such child can claim maintenance u/s 144 BNSS (Earlier 125 Cr PC).
Whether old age parents are entitled for Maintenance from son ?
Yes, the Maintenance and Welfare of Parents and Old Citizens Act, 2007 makes them entitle for maintenance.
Whether husband has any remedy against Magistrate's Order of Maintenance under section 144 BNSS ?
Husband can file revision petition before revisional court.
Whether a women can apply for maintenance under Hindu Adoptions and Maintenance Act, 1956 where she is already in receipt of maintenance under section 144 of BNSS ?
Yes, Order of Maintenance under section 144 of BNSS would not preclude the woman to apply for maintenance under section 18(2) of the Hindu Adoptions and Maintenance Act, 1956.
Can a husband file an appeal before High Court against interlocutory order of Family Court.
No, such appeal is not maintainable against interlocutory order of Family Court under section 19 of the Family Court Act, 1984.