Maintenance Law under Section 144 BNSS

Introduction

Section 144 to 147 (Chapter X) of the Bharatiya Nagarik Suraksha Sanhita, 2023  deals with the laws related to maintenance of wives, children and parents. The rationale behind provision of maintenance under the law is that the wife, children or parents of a person who are unable or do not have sufficient income to maintain themselves may be saved from destitution and their subsistence can be ensured in an effective manner. Article 21 is the  Constitutional ground for such provision which ensures the right to live with dignity. In this article, we will deal with section 144 in detail and in next article we will deal with the remaining provisions of maintenance.

Following sections deal with the provision of maintenance under the BNSS:

Section 144. Order for maintenance of wives, children and parents

(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 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,

a 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:

Provided that the Magistrate may order the father of a female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such female child, if married, is not possessed of sufficient means:

Provided further that the 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 Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct:

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.

Explanation. – For the purposes of this Chapter, “wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

(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.

(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:

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:

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.

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.

(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.

(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 Magistrate shall cancel the order.

Section 144 provides for maintenance of wives, children and parents. It also provides for interim maintenance and expenses of proceedings.

Purpose of Section 144 BNSS

The purpose of Section 144 of BNSS is to protect the wives, children and parents who are unable to maintain themselves from destitution and provide them a proper subsistence means. It is a welfare provision aimed to help vulnerable dependents by ensuring that those who are neglecting their duty must pay a sufficient amount. The provision is provided in criminal law to ensure that the process is expeditious and strict.

Beneficiaries eligible to claim Maintenance

The Section provides for four categories of beneficiaries who can claim maintenance from the person who, having sufficient means, neglects or refuses to maintain them. Such beneficiaries include his wife unable to maintain herself, (includes divorced wife who has not remarried), legitimate or illegitimate child (both married or unmarried) including such child who have attained majority but by reason of any physical or mental abnormality or injury unable to maintain itself, his father or mother unable to maintain himself or herself.

Second proviso to sub section 1 of the Section provides that a female child, if married and husband does not possess sufficient means to maintain her, should be eligible to claim maintenance from her father unless she attains majority.

‘Unable to maintain herself’ Judicial Interpretation

The term ‘unable to maintain herself’ has been explained in the case of Chaturbhuj v. Sita Bai, in which the Court interpreted this term as including any means available to a deserted wife while she was living with her husband and excludes the efforts made by her after such desertion to survive anyhow. (para 5)

Who can pass the order of maintenance?

Judicial Magistrate of First Class has the jurisdiction to pass maintenance orders under this section. Such order may be passed on the proof of such neglect or refusal.

Distress Warrant (sub section 3)

The warrant passed under Sec. 144(3) is called a distress warrant. If the person ordered to pay maintenance fails to do so as per the order of the Magistrate without sufficient cause to comply with the order, the Magistrate may issue a warrant to levy such unpaid amount in the manner provided for levying fines. Even after the execution of warrant, the amount remains unpaid, such person may also be sentenced to imprisonment for a term up to 1 month or until payment if sooner made.

It must be noted here that such a warrant shall not be issued unless the application for levying such an amount has been made within one year from the date on which it became due. (1st proviso to sub-section 3)

It further clarifies that if the person offers to maintain his wife on the condition that she will be living with him and she refuses to do so, the Court must consider the ground of refusal and give his order notwithstanding such an offer. (2nd proviso of sub- section 2)

However, contacting a second marriage  or keeping a mistress by the husband shall be considered as a just ground. (Explanation to sub-section 3)

Exclusion of wife and cancellation of maintenance order

Same grounds have been provided for excluding a wife from being entitled to maintenance including interim maintenance and expenses of proceedings (sub-section 4) and cancellation of maintenance order (sub-section 5):

• Wife living in adultery
• Refuses to live with her husband without any sufficient reason
• Living separately by mutual consent

For cancellation of such order, such actions by the wife must be proved before the Court.

Section 144 is a secular law

It is clarified by the hon’ble Supreme Court in Shabana Bano v. Imran Khan, that S. 125 CrPC (now S. 144 BNSS) being a beneficial provision, its benefit must accrue even to divorced muslim wives. Earlier in Shah Bano Begum v. Md. Ahmed Khan, the Supreme Court held that Muslim women are entitled to maintenance beyond the iddat period. Subsequently, due to the protest of Muslim Community against this judgment, Parliament enacted Muslim Women (Protection of Right on Divorce) Act, 1986 which established that a wife is entitled to maintenance only when her former husband neglects to maintain.

Order passed u/s 144 is Revisable

It is passed in several judgments that the order passed under section 144 is revisable under section 438 of BNSS. The proceedings can also be challenged under Section 538 of BNSS. 

Conclusion

The provision of maintenance under section 144 and chapter X of BNSS in general is provision for doing Social Justice. The provision recognises protection for vulnerable members of family under the Criminal Justice system to ensure the speedy decision of cases. The provision also grants provision for interim maintenance as well as the proceedings expense from the abled party.

In modern day, the question about giving maintenance to husbands under section 144 BNSS who are unable to maintain themselves and wife having sufficient means need to be considered, as it pushes the society towards a more egalitarian approach. However, the system has not been introduced because of the Patriarchal nature of Indian society which makes it difficult to establish because of prevailing gender stereotypes.

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This article is written by Astha Priya and Jeet Sinha.