NAGIVATING THE NEW MAINTENANCE LAWS UNDER THE BHARATIYA NAGARIK SURAKSHA SANHITA, 2023
CONCEPT OF MAINTENANCE
The dictionary meaning of term maintenance is support or sustenance . The concept of maintenance flows from the concept of marriage and duty of husband after marriage to maintain his wife and minor children and also maintain his old parents throughout their life.
Laws for granting maintenance
The laws under which maintenance in India can be granted are:
• Section 125 Criminal Procedure Code( Cr.P.C.)
• Section 20 of Protection of women from Domestic Violence
• Section 18 of Hindu Adoption and Maintenance Act
• Section 24 of Hindu Marriage Act
• Section 25 of Hindu Marriage Act
• Personal Laws
THE OLD PROVISION OF MAINTENANCE UNDER THE CODE OF CRIMINAL PROCEDURE CODE 1973
The Code of Criminal Procedure 1973 contained in chapter IX, Section 125 Code of criminal procedure 1973 namely order for maintenance of wives and children, which contain four section from Section 125- 128.
PERSON ENTITLED TO GET MAINTENANCE UNDER SECTION 125 CRIMINAL PRPCEDURE CODE
[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 s of such child by reason of physical or mental abnormality or injury unable to maintain itself, or
[d] his father or mother, unable to maintain himself and herself,
A Magistrate of 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 he father of a minor female child referred to in clause [b] to make such allowance, until she attains her majority, if the Magistrate is satisfied that husband of such minor female child, if married, is not possessed of sufficient means..
Provided further that the Magistrate may, during the pendency of 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 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 day of service of notice of the applicant to such person,’’;
[Explanation- For the purpose of this chapter –
- ‘’minor” means a person who under this provision of the Indian Majority Act, [9 of 1875] is deemed not to have attained his majority;
- ‘’wife” includes a woman who has been divorced by, or has obtained divorce from, her husband and has not remarried.
[2] ‘’ Any such allowance for the maintenance and interim maintenance and expenses of proceedings shall be payable from the date of the order, or if so ordered, from the date of the application fr maintenance and interim maintenance and expenses of proceedings 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 bench 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 allowance for maintenance and interim maintenance and expenses of the proceedings, 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 ground 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 his wife’s refusal.
[4] No wife shall be entitled to receive an allowance for the maintenance and interim maintenance and expenses of proceedings as the case may be from her husband under this section if she is living on 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 favor 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.
NEW PROVISION ON MAINTENANCE LAW
BHARATIYA NAGARIK SURAKSHA SANHITA, 2023 is India’s primary legislation on the procedure for administering substantive law under criminal law . With the BNSS Section 144 ( earlier 125 CRPC) deals with the order for maintenance of wives, children and parents
The provision relating to Maintenance of wives, children and parents are contained IN chapter X of Bhartiya Nagrik Suraksha, which has four sections starting from Section 144 to Section 147
Section144-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 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 and herself, a Judicial Magistrate of 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 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 Magistrate is satisfied that husband of such minor female child, if married, is not possessed of sufficient means..
Provided further that the Judicial Magistrate may, during the pendency of 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 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:
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 day of service of notice of the applicant to such person,’’;
[Explanation- For the purpose of this chapter –
- ‘’minor” means a person who under this provision of the Indian Majority Act, [9 of 1875] is deemed not to have attained his majority;
- ‘’wife” includes a woman who has been divorced by, or has obtained divorce from, her husband and has not remarried.
[2] ‘’ Any such allowance for the maintenance and interim maintenance and expenses of proceedings shall be payable from the date of the order, or if so ordered, from the date of the application fr maintenance and interim maintenance and expenses of proceedings 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 bench 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 allowance for maintenance and interim maintenance and expenses of the proceedings, 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 ground 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 his wife’s refusal.
[4] No wife shall be entitled to receive an allowance for the maintenance and interim maintenance and expenses of proceedings as the case may be from her husband under this section if she is living on 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 favor 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.
145. 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 illegitimate child; 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 wilfully 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 146 Alteration of Allowance –
[1] On proof of change in circumstance of any person, receiving under Section 125 a monthly allowance for the maintenance or the 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 maintenance or the interim maintenance as the case be:
Provided that if he increases the allowance, the monthly rate of five hundred rupees in whole shall not be exceeded.
[2] Where it appears to the Magistrate that in consequence of any decision of a competent civil Court, any order made under Section 125 should be canceled 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 125 in favour of a woman who has been divorced, or has obtained a divorced 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 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 right 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 recovery of any maintenance or dowry by any person, to whom a monthly allowance for maintenance and interim maintenance or any of them has been ordered to be paid under Section 125, the Civil court will 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 147 Enforcement of order of maintenance-
A copy of the order of maintenance and interim maintenance and expenses of the 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 to the allowance for the maintenance or for the interim maintenance and expenses of proceedings as the case may be is to be paid; and such order may be enforced by the Magistrate in any place where the person against whom it is made may be, on 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.
CORRESPONDENCE TABLE and COMPARISON SUMMARY of Section 144 The BHARATIYA NAGARIK SURAKSHA SANHITA, 2023, (BNSS) and 125 CRPC The CODE OF CRIMINAL PROCEDURE, 1973, (CrPC)
| Subject | CrPC | BNSS | Summary of Comparison |
| Order for maintenance of wives, children and parents | 125 | 144 | “minor” is replaced by “child”. |
| Procedure. | 126 | 145 | In subsection (1), clause (d) is added. In subsection (2), pleader is replaced by “advocate” |
| Alteration in allowance. | 127 | 146 | No change. |
| Enforcement of order of maintenance. | 128 | No change. |