In the previous article, we dealt with Section 144, which addresses the beneficiaries of maintenance and the general right to maintenance. Now, in this article, we will deal with Sections 145, 146, and 147, which address Procedure, Alteration, and Enforcement, respectively.

Section 145. Procedure

Procedure.— (1) Proceedings under section 144 may be taken against any person in any district—

(a) where he is; or

(b) where he or his wife resides; or

(c) where he last resided with his wife, or as the case may be, with the mother of the illegitimatechild; or

(d) where his father or mother resides.

(2) All evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made, or, when his personal attendance is dispensed with, in the presence of his advocate, and shall be recorded in the manner prescribed for summons-cases:

Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or willfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper.

(3) The Court in dealing with applications under section 144 shall have power to make such order as to costs as may be just.

Section 145 of the BNSS provides for the jurisdiction for filing applications for maintenance. It includes:

• Where the person( against whom the application is filed) is
• Where he or his wife resides or where they have last resided with the wife or the mother of the illegitimate child (as the case may be) or
• Where his mother or father resides

Manner of taking evidence: All the evidence in such a case is to be taken in presence of the person against whom the application has been filed or in the presence of his advocate and recording of such evidence shall be in the manner prescribed for summons-cases.

Ex parte order- The Court can also pass an ex parte order if the Magistrate is satisfied that the person against whom the order is to be made is wilfully avoiding the service or wilfully neglecting to attend the Court.

However, if a good cause is shown by the person, on an application made within 3 months from the date of order, such order may be set aside. 

Maintenance in a live-in relationship- In case of D. Velusamy v. D Patchaimal, it was held by the Supreme Court that a woman who is in ‘relationship in nature of marriage’ may claim maintenance. 

Section 144 and Muslim Personal law- In the landmark case of Mohd. Ahmed Khan v. Shah Bano Begum, it was held by the Supreme Court that there is no conflict between the Section 125 of Indian Penal Court (which was corresponding to section 144 of the BNSS) and the Muslim Personal Law and a Muslim woman can claim maintenance under Section 125.
Enforcement of order of maintenance- It can be enforced by the Civil Court as per various provisions of Code of Civil Procedure (CPC) as held in the case of Rajnesh v. Neha.

Enforcement and Alteration of Maintenance order under BNSS

Section 146. Alteration in allowance

Alteration in allowance.—(1) On proof of a change in the circumstances of any person, receiving, under section 144 a monthly allowance for the maintenance or interim maintenance, or ordered under the same section to pay a monthly allowance for the maintenance, or interim maintenance, to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration, as he thinks fit, in the allowance for the maintenance or the interim maintenance, as the case may be.

(2) Where it appears to the Magistrate that in consequence of any decision of a competent Civil Court, any order made under section 144 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly.

(3) Where any order has been made under section 144 in favour of a woman who has been divorcedby, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that—

(a) the woman has, after the date of such divorce, remarried, cancel such order as from the date of her remarriage;

(b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order,—

(i) in the case where such sum was paid before such order, from the date on which such order was made;

(ii) in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman;

(c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance or interim maintenance, as the case may be, after her divorce, cancel the order from the date thereof.

(4) At the time of making any decree for the recovery of any maintenance or dowry by any person, to whom a monthly allowance for the maintenance and interim maintenance or any of them has been ordered to be paid under section 144, the Civil Court shall take into account the sum which has been paid to, or recovered by, such person as monthly allowance for the maintenance and interim maintenance or any of them, as the case may be, in pursuance of the said order.

Section 146 (corresponding to Section 127 of Code of Criminal Procedure) provides for both alteration and cancellation of the maintenance order granted under Section 144 of the BNSS. The circumstances before the Court when the order of maintenance  or interim maintenance has been passed may change with the time. And such change in circumstances may make it necessary for the Court to alter the maintenance order or even to cancel it.

Therefore, subsection 1 of the Section 146 provides that on the proof of the change in the circumstances of any person, receiving the maintenance including interim maintenance or the person who has been ordered to pay such maintenance allowance, the Magistrate may make such alteration in the allowance as he thinks fit. 

Interpretation of ‘Change in circumstance’:

No exhaustive explanation has been provided under BNSS or earlier Cr.P.C to the term ‘change in circumstances’. In the context of Section 146, such ‘change’ must have arisen after the order of the maintenance had been passed, as clear from the language of the provision itself. 

What change in the circumstances can lead to alteration of maintenance is a question of fact. Such change must be a substantial change in circumstances. However, the Judiciary has tried to interpret the terms ‘change in circumstances’ in various cases.

In the case of Narayan Chandra Das v. Geeta Rani Das (2005), it was held by the Supreme Court that the ‘change in circumstances’ is the sine qua non for the application of the provision of Section 127 Cr.P.C.

In the case of Jyoti @ Gayatri v. Rohit Sharma @ Santosh Sharma (2022)decided by the Delhi High Court, it was held that for the alteration of maintenance order under Section 127 of the Cr.P.C (corresponding to section 146 of the BNSS) it must be shown that there has been a change in the circumstances of husband or wife. 

The Court further referred to the case of Bhagwan Dutt v. Kamala Devi (1974), where the Supreme Court interpreted the term ‘circumstances’. It observed that ‘circumstances’ must include ‘financial circumstances’ and therefore, ‘change in circumstances’ also include ‘change in the financial circumstances’ of the parties.

Therefore, in light of the above judicial decisions and the provision, it is clear that the change in circumstances may be financial or even personal. 

An instance of financial change in circumstances may include substantial decrease in the income of the person who has been ordered to pay the maintenance. In such circumstances the Court might decrease the amount of maintenance to be paid. It is an instance of change in the financial circumstances. 

Change in personal circumstances may include remarriage of the wife after taking divorce from her husband who has been ordered to pay maintenance. In such circumstances, the Court can order the cancellation of the maintenance order.

It must be noted here that the burden of proving such change in circumstances lies upon the person who is claiming such change.

Cancellation of maintenance

Sub section 2 and 3 of this section provides circumstances when the order of maintenance can be cancelled. Sub section 2 of this section provides that the order of maintenance may be cancelled or varied where it appears to the magistrate that such order shall be cancelled or varied in light of an order of a competent civil court. 

Sub section 3 provides for cancellation of order of maintenance when it has been granted in favour of the divorced wife and she has remarried, or has received such sum of money to be paid after the divorce under the customary or personal law (either before or after such order) or she has surrendered the right to maintenance voluntarily. 

Section 147.  Enforcement of order of maintenance

Enforcement of order of maintenance.—A copy of the order of maintenance or interim maintenance and expenses of proceedings, as the case may be, shall be given without payment to the person in whose favour it is made, or to his guardian, if any, or to the person to whom the allowance for the maintenance or the allowance for the interim maintenance and expenses of proceeding, as the case may be, is to be paid; and such order may be enforced by any Magistrate in any place where the person against whom it is made may be, on such Magistrate being satisfied as to the identity of the parties and the non-payment of the allowance, or as the case may be, expenses, due.

This section provides that the maintenance order (or interim maintenance or expenses of proceedings) may be enforced by any Magistrate in any place where the person who is required to pay such maintenance, if the Magistrate is satisfied as to the identity of the parties and non-payment of the allowance.

This provision provides that a person can apply for enforcement of maintenance at any place throughout India. This gives protection to beneficiaries as it ensures that the maintenance giver does not leave the jurisdiction of court which passed the order of maintenance and escape his legal duties.

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This article is written by Astha Priya and Jeet Sinha.