Order for Maintenance of Wife, Children, Parents (Section 125 CrPC / Section 144 BNSS)

Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) — re-enacting Section 125 of the old Code of Criminal Procedure, 1973, with the single textual change of substituting the word "child" for "minor" — is the summary maintenance jurisdiction of the Magistrate. The chapter is short and self-contained: Sections 144 to 147 BNSS (previously Sections 125 to 128 CrPC) lie inside Chapter X BNSS and together provide a substantive right (Section 144), a procedure (Section 145), an alteration mechanism (Section 146), and an enforcement-place rule (Section 147). It is one of the four most-litigated provisions in the entire Code, and it is the rare procedural provision whose object is openly declared by the Supreme Court to be social-welfare.

The provision is summary in form but substantive in content. It is not a substitute for the maintenance jurisdictions under personal law — the Hindu Adoptions and Maintenance Act, 1956, the Hindu Marriage Act, 1955, the Special Marriage Act, the Muslim Women (Protection of Rights on Divorce) Act, 1986, the Protection of Women from Domestic Violence Act, 2005, the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 — but coexists with each of them. It is also not punitive: the Magistrate's jurisdiction here is preventive, designed to save dependants from destitution and vagrancy, and is therefore liberally construed in favour of the applicant.

Statutory anchor and the BNSS change

Section 144(1) BNSS reproduces Section 125(1) CrPC almost verbatim. Where the old Code referred to a "minor" child, the BNSS uses the word "child" — a small textual change that aligns the section with the definition of "child" in the Juvenile Justice (Care and Protection of Children) Act, 2015. The four classes of dependants are (a) wife unable to maintain herself; (b) legitimate or illegitimate child, whether married or not, unable to maintain itself; (c) legitimate or illegitimate child, not being a married daughter, who has attained majority and is by reason of physical or mental abnormality or injury unable to maintain itself; and (d) father or mother unable to maintain himself or herself.

Two structural points are worth noting. First, the power to make an order is exclusively vested in a Judicial Magistrate of the first class — the Sub-Divisional and District Magistrates of the old 1898 Code lost concurrent jurisdiction in 1973 because the function was understood to be judicial. The chapter on the constitution of criminal courts sets out the hierarchy. Second, the Code of Criminal Procedure (Amendment) Act, 2001, deleted the ceiling of Rs. 500 per month and introduced the proviso for interim maintenance and litigation expenses; the Supreme Court in Manoj Yadav v. Pushpa Devi, AIR 2011 SC 614, then held that all the State amendments retaining a ceiling had become invalid as inconsistent with the Central amendment. The BNSS retains both these features — no ceiling and an interim-maintenance proviso disposable as far as possible within sixty days.

Object — preventive, social-welfare jurisdiction

The classical statement is in Bhagwan Dutt v. Kamla Devi, (1975) 2 SCC 386, where the Supreme Court held that Section 125 is a measure of social justice intended to protect women, children, and parents from destitution and vagrancy. The jurisdiction is preventive rather than remedial or punitive. The Constitution Bench in Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945, reiterated that the section applies to all communities irrespective of personal law. Captain Ramesh Chander Kaushal v. Veena Kaushal, AIR 1978 SC 1807, framed the canon of construction: where two interpretations are possible, the one favouring the applicant must prevail.

The right is statutory and self-contained. Nanak Chand v. Chandra Kishore Aggarwal, AIR 1970 SC 446, held that the Section 125 right is independent of any right under the personal law of the parties; the two operate in parallel and remedies under both may be pursued so long as the applicant does not get effective satisfaction. Sunita Kachwaha v. Anil Kachwaha, (2014) 16 SCC 715, confirmed that an order under Section 24 of the Hindu Marriage Act for pendente lite maintenance can stand alongside an order under Section 125, although where there is duplication the earlier order may be kept in abeyance.

The five ingredients of Section 144(1) BNSS

An applicant must establish all of the following five ingredients for an order to issue. First, that the application is presented to a Judicial Magistrate of the first class — Raj Kumari v. Dev Raj, AIR 1977 SC 1101, treats this as a jurisdictional condition. Second, that the applicant falls within one of the four classes in clauses (a) to (d). Third, that the applicant is unable to maintain himself, herself, or itself. Fourth, that the opposite party has sufficient means to maintain. Fifth, that the opposite party has neglected or refused to maintain.

Sufficient means and inability to maintain

The phrase "sufficient means" does not mean only visible or tangible means. Basanta Kumari v. Sarup Kumar, 1982 CrLJ 485 (Ori), held that an able-bodied man is presumed to have means whether he is a beggar, a minor, or a monk. Chaturbhuj v. Sita Bai, (2008) 2 SCC 316, held that even where the wife is earning, an order may issue if her earnings are not sufficient to maintain her at the standard of living she enjoyed in the husband's home — "unable to maintain herself" is judged not against subsistence but against the family's standard of living. Insolvency, indebtedness, and even physical disability of the husband do not by themselves defeat the claim — the very fact of marriage operates as an undertaking to maintain the wife (Sudha v. Raj Kumar, 1997 CrLJ 3140 Mad).

Neglect or refusal

Neglect or refusal is the gist of the cause of action. Jagir Kaur v. Jaswant Singh, AIR 1963 SC 1521, held that the neglect or refusal must be wilful, but it need not be express; conduct may speak for itself. The onus is initially on the applicant; once a prima facie case is shown, the burden shifts to the respondent to rebut. Bhuwan Mohan Singh v. Meena, (2015) 6 SCC 353, emphasised that the Magistrate must dispose of these proceedings with promptitude — adjournments and procedural delays defeat the very object of the section.

The wife — defences and special doctrines

Sub-section (4) of Section 144 (Section 125(4) CrPC) lays down three defences specific to a wife's claim. She is not entitled to maintenance if (a) she is living in adultery, (b) she without sufficient reason refuses to live with her husband, or (c) the parties are living separately by mutual consent. The Magistrate must record evidence on each of these defences before refusing or cancelling an order.

The Explanation to sub-section (3) is the operative gateway for the second defence: if the husband has contracted marriage with another woman or keeps a mistress, that shall be deemed a just ground for the wife's refusal to live with him. Sabanu v. A.M. Abdul Gafoor, AIR 1987 SC 1103, applied the Explanation to a Muslim husband's second marriage and held that the Muslim wife is entitled to maintenance even though Muslim personal law permits up to four wives — the section overrides the personal law on this point. The chapter on definitions and key concepts sets out the meaning of "wife" for these purposes.

The divorced-wife question — Shah Bano, the 1986 Act, and Daniel Latifi

Explanation (b) to sub-section (1) defines "wife" to include a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945, held that a Muslim divorced woman, unable to maintain herself, was entitled to apply under Section 125 for maintenance not only during the iddat period but also up to the date of remarriage or death. The political fallout produced the Muslim Women (Protection of Rights on Divorce) Act, 1986. The Constitution Bench in Danial Latifi v. Union of India, (2001) 7 SCC 740, then read down the 1986 Act to require the husband to make, within the iddat period, a reasonable and fair provision for the wife's entire future, not just her iddat-period subsistence — preserving Section 125 as the long-term safety net.

The Supreme Court in Shabana Bano v. Imran Khan, (2010) 1 SCC 666, and most recently in Mohd. Abdul Samad v. State of Telangana, 2024 SCC OnLine SC 1686, has reaffirmed that the 1986 Act and Section 125 (now Section 144 BNSS) operate cumulatively — the divorced Muslim wife may, at her option, file under either or both. The triple-talaq decision in Shayara Bano v. Union of India, (2017) 9 SCC 1, and the criminalisation of triple talaq under the Muslim Women (Protection of Rights on Marriage) Act, 2019, do not affect the Section 144 BNSS jurisdiction.

Live-in relationships and the wife question

The Supreme Court has steered a careful course. In D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469, the Court laid down the four conditions for a relationship in the nature of marriage — voluntary cohabitation, holding out as spouses, age of marriage, and capacity to marry — and held that not every live-in relationship qualifies. Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC 755, refined the test with five categories of live-in relationships, of which only the first three attract maintenance under the Domestic Violence Act, 2005. Chanmuniya v. Virendra Kumar Singh Kushwaha, (2011) 1 SCC 141, however, took a generous view of "wife" for Section 125 purposes where the parties had cohabited as husband and wife for a long period — the issue was referred to a larger Bench. The position therefore is uncertain at the margin and must be argued case-by-case.

Children and parents

A minor child — male or female — is entitled to maintenance whether or not married. The chapter on history, object and scheme of the BNSS sets out the broader transition that explains why the BNSS replaces "minor" with "child". A married minor daughter is entitled to maintenance from the father until she attains majority where the Magistrate is satisfied that the husband has insufficient means (Proviso to sub-section (1)). A major daughter is entitled to maintenance under the section only if she suffers from a physical or mental abnormality or injury — but the Hindu Adoptions and Maintenance Act, 1956, gives a Hindu daughter a parallel right to maintenance until marriage. The Gauhati High Court in Mohammed Siddique Ali v. Fatema Rashid, 2007 CrLJ 2363, applied a similar rule to a Muslim major unmarried daughter.

The parent's right was new in the 1973 Code — the 1898 Code had no equivalent. Vijaya Manohar Arbat v. Kashirao Rajaram Sawai, AIR 1987 SC 1100, held that the section applies equally to a daughter — she is liable to maintain her aged or infirm parent if she has sufficient means. The Maintenance and Welfare of Parents and Senior Citizens Act, 2007, treated alongside the bond regime in our chapter on powers of police officers and aid to magistrates as a parallel forum, now provides a faster route, but the Section 144 BNSS jurisdiction continues unaffected. The chapter on peace bonds and good-behaviour bonds under Sections 125 to 143 BNSS sometimes operates in tandem when the dependant also seeks protection from harassment.

Procedure — Section 145 BNSS

Section 145 BNSS (previously Section 126 CrPC) lays down the procedure. The application is to be filed in the place where the person against whom it is filed is, or where he or his wife resides, or where he last resided with his wife or, as the case may be, with the mother of the illegitimate child. The 2023 Code adds, in clause (d) — newly introduced — a forum option that further widens the locus of the applicant. The procedure is summary and the evidence is taken in the presence of the respondent or his pleader (now "advocate" in the BNSS).

The application is to be disposed of, as far as possible, within sixty days of service of notice on the respondent (proviso to Section 144(1)). The trial-court rules on the procedure follow the chapter on trial of summons cases by magistrates, with adjustments for the welfare orientation of this chapter. Bhuwan Mohan Singh v. Meena reiterated the timeline; the courts' departure from it is a recurring object of revisional and writ scrutiny.

The Rajnesh framework on quantum and disclosure

The Supreme Court in Rajnesh v. Neha, (2021) 2 SCC 324, laid down a comprehensive framework on the determination of maintenance across all forums. The judgment requires both parties to file Affidavits of Disclosure of Assets and Liabilities in the format annexed to the judgment; mandates that the order specify the date from which maintenance runs; lays down enforcement modalities, including arrears recovery; and consolidates the criteria for quantum (status of the parties, reasonable needs of the wife and children, qualifications and employment status of the wife, independent income or assets of either party, standard of living in the matrimonial home, special diet or medical needs, expenses of the children, whether the wife is sacrificing employment for the family). The framework binds every Magistrate exercising Section 144 BNSS jurisdiction, and a Section 144 order made without compliance is liable to be set aside.

Alteration and enforcement — Sections 146 and 147 BNSS

Section 146 BNSS (previously Section 127 CrPC) authorises the Magistrate to alter the maintenance amount on proof of a change in the circumstances of either party. Bhagwan Dutt applied this to a wife coming into separate income; Gangamma v. Emami, AIR 1961 AP 510, applied it to the husband's loss of income. The Magistrate is also bound to act in conformity with a civil court decree settling status — Section 146(2) — once it is brought to his notice. Section 147 BNSS (previously Section 128 CrPC) makes the order enforceable wherever the respondent or his attachable property is found, regardless of the territorial jurisdiction of the original Magistrate.

The Allahabad and Madras decisions extending the alteration jurisdiction to include retrospective enhancement where the husband's income has demonstrably grown during the pendency of the proceedings, although not unanimous, support a generous reading aligned with the welfare object of the chapter. Where the dependant has died during the pendency of the alteration proceeding, the proceedings abate so far as the deceased is concerned, but the legal representatives may continue for arrears that had crystallised at the date of death. The Magistrate's residual power to record the cancellation of the order under sub-section (5) of Section 144 — on proof that the wife is living in adultery, has refused without sufficient reason to live with the husband, or that the parties are living separately by mutual consent — is mandatory, not discretionary, once the proof is established. The cancellation order, however, is itself appealable in revision, and the Magistrate must record specific evidentiary findings on each ground; a bare conclusion does not survive scrutiny.

Sub-section (3) of Section 144 is the enforcement engine. On default, the Magistrate may, for every breach, issue a warrant for levying the amount due in the manner provided for fines, and may sentence the defaulter to imprisonment for a term that may extend to one month or until payment is made, whichever is earlier. Shahada Khatoon v. Amjad Ali, (1999) 5 SCC 672, held that the maximum imprisonment for any one default is one month — the language is exhaustive, and successive defaults can each invite up to one month, but no single default beyond it. The first proviso requires the application for warrant to be made within one year from the date the amount became due.

Reading the chapter together with adjacent regimes

Section 144 BNSS sits at the intersection of criminal procedure and family law. Three adjacent regimes deserve careful attention. First, the Protection of Women from Domestic Violence Act, 2005, provides for monetary relief, residence orders, protection orders, and custody orders before a Magistrate; Sandhya Wankhede v. Manoj Bhimrao Wankhede, (2011) 3 SCC 650, treats the two regimes as cumulative. Second, the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, provides a Tribunal route for parents above sixty. Third, the personal-law jurisdictions of the Civil Court — Hindu Marriage Act Sections 24 and 25, Hindu Adoptions and Maintenance Act Sections 18 and 20, the various Muslim-law remedies, the Special Marriage Act — operate in parallel and may be pursued together.

Within the BNSS itself, the section interlocks with the chapter on the maintenance of public order and tranquillity only when the dependant requires immediate police-side protection alongside the maintenance order, and with the chapter on preventive action of police where the husband's conduct gives rise to apprehension of cognizable offences such as cruelty under Section 86 BNS (previously Section 498A IPC). The threshold for arrest in such cases is treated in our chapter on arrest of persons, applying the safeguards laid down in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273. Enforcement issues sometimes travel through the regime in our chapter on execution, suspension, remission and commutation of sentences, when default-imprisonment orders are challenged.

Comparative table — CrPC and BNSS

• S. 125 CrPC = S. 144 BNSS — order for maintenance of wives, children, and parents. "Minor" replaced by "child".
• S. 126 CrPC = S. 145 BNSS — procedure. Subsection (1) clause (d) added; "pleader" replaced by "advocate".
• S. 127 CrPC = S. 146 BNSS — alteration in allowance. No change.
• S. 128 CrPC = S. 147 BNSS — enforcement of order of maintenance. No change.

The chapter is examination-rich and authority-heavy. The dual citation discipline must be observed: every answer should open with "Under Section 144 BNSS (previously Section 125 CrPC), a Judicial Magistrate of the first class may, on proof of neglect or refusal to maintain…" The constitutional anchor in Articles 15(3) and 39, the social-welfare orientation declared in Bhagwan Dutt and Captain Ramesh Chander Kaushal, the comprehensive Rajnesh v. Neha framework, and the long line of Shah Bano–Daniel Latifi–Mohd. Abdul Samad cases on the divorced Muslim wife are the four pillars on which a competent answer rests.

Frequently asked questions

Can a divorced Muslim woman claim maintenance under Section 144 BNSS / Section 125 CrPC?

Yes. The Constitution Bench in Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945, held that a Muslim divorced woman who is unable to maintain herself is entitled to maintenance under Section 125 CrPC up to the date of remarriage or death, and not merely until the iddat period. Daniel Latifi v. Union of India, (2001) 7 SCC 740, read down the Muslim Women (Protection of Rights on Divorce) Act, 1986, to require fair and reasonable provision for the wife's future. Mohd. Abdul Samad v. State of Telangana, 2024, has most recently confirmed that the 1986 Act and Section 125 (now Section 144 BNSS) operate cumulatively — the wife may pursue either, or both, at her option.

What is the maximum imprisonment for default in payment of maintenance under Section 144(3) BNSS?

One month. Sub-section (3) provides that the Magistrate may, for every breach of the order, sentence the defaulter to imprisonment for a term that may extend to one month or until payment is sooner made. The Supreme Court in Shahada Khatoon v. Amjad Ali, (1999) 5 SCC 672, held that the language is exhaustive — the Magistrate cannot impose more than one month's imprisonment for any single default. Successive defaults can attract successive one-month terms, but no single default beyond one month. The first proviso to sub-section (3) requires that the application for the warrant be made within one year from the date the amount became due.

Is the maintenance jurisdiction under Section 144 BNSS a substitute for personal-law remedies?

No. The Section 144 BNSS jurisdiction is a self-contained statutory right that operates in parallel with personal-law remedies — Section 24 of the Hindu Marriage Act, 1955, Section 18 of the Hindu Adoptions and Maintenance Act, 1956, Muslim personal-law obligations, the Domestic Violence Act, 2005, and the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. Nanak Chand v. Chandra Kishore Aggarwal, AIR 1970 SC 446, settled that an applicant may pursue both the Section 125 remedy and a personal-law remedy concurrently, so long as effective satisfaction is not duplicated. Where there is duplication of pendente lite orders, the earlier may be kept in abeyance during the operation of the later.

What is the Rajnesh v. Neha framework and why does it matter for Section 144 BNSS proceedings?

Rajnesh v. Neha, (2021) 2 SCC 324, is the Supreme Court's comprehensive framework on the determination of maintenance across all forums — Section 125 CrPC (now Section 144 BNSS), the Hindu Marriage Act, the Hindu Adoptions and Maintenance Act, the Domestic Violence Act, and the Special Marriage Act. The judgment mandates Affidavits of Disclosure of Assets and Liabilities by both parties, fixes the date from which maintenance runs, lays down enforcement modalities, and consolidates the criteria for quantum (status, needs, qualifications, independent income, standard of living, special needs, children's expenses, sacrifice of employment). A Section 144 BNSS order made without compliance is vulnerable to revision.

Can a major unmarried daughter claim maintenance under Section 144 BNSS?

Only if she suffers from a physical or mental abnormality or injury that renders her unable to maintain herself — sub-section (1)(c). For a Hindu daughter, however, Section 20(3) of the Hindu Adoptions and Maintenance Act, 1956, gives a parallel right to maintenance from the father until marriage, and the Supreme Court has approved the grant of such maintenance in Section 125 proceedings to avoid multiplicity (see the Family Court decision approved in Mohammed Siddique Ali v. Fatema Rashid, 2007 CrLJ 2363, applying a similar principle to a Muslim major unmarried daughter). The Section 144(1)(c) BNSS condition therefore continues to govern the strict criminal-procedure jurisdiction; the wider personal-law right is invoked separately.

Can a husband defeat the wife's maintenance claim by offering to take her back?

Not without the Magistrate's scrutiny. The second proviso to Section 144(3) BNSS provides that if the husband offers to maintain the wife on condition of her living with him, and she refuses, the Magistrate may consider the grounds of her refusal and may make an order despite the offer if there is just ground for so doing. The Explanation deems the husband's contracting of a second marriage or keeping a mistress to be a just ground. Sabanu v. A.M. Abdul Gafoor, AIR 1987 SC 1103, applied this to a Muslim husband's second marriage — the Section 144 jurisdiction overrides the personal law on this point.