By Legum Pacific Editorial ·
Suppose a husband stops supporting his wife, or a son will not support his aged parents
Suppose a wife lives apart from her husband and has no money. Suppose a child is a minor and the parent neglects to provide for food, clothing or schooling. These facts set the scene for a maintenance claim.
What does the law say? (BNSS section 144 and the Hindu Adoptions and Maintenance Act)
The official texts supplied for this note are BNSS (Bharatiya Nagarik Suraksha Sanhita, 2023) section 144 and the Hindu Adoptions and Maintenance Act, 1956 (HAMA). BNSS s.144 allows a Magistrate of the first class to order monthly maintenance when a person with sufficient means neglects or refuses to maintain certain relatives. HAMA sets out maintenance rights and factors for Hindus, and defines “maintenance” to include food, clothing, residence, education and medical attendance and treatment (HAMA s.3).
Who can claim maintenance and from whom?
- BNSS s.144(1) lists who may be covered: a wife unable to maintain herself; a legitimate or illegitimate child, whether married or not, unable to maintain itself; a major child (not a married daughter) who by reason of physical or mental abnormality or injury is unable to maintain itself; and a father or mother unable to maintain himself or herself. The order is made against a person who has sufficient means and who neglects or refuses to maintain these dependants.
- HAMA s.18 says a Hindu wife shall be entitled to be maintained by her husband during her lifetime. HAMA s.20(1) says a Hindu is bound during life to maintain his or her legitimate or illegitimate children and aged or infirm parents. HAMA s.20(2) says a child may claim maintenance from his or her father or mother so long as the child is a minor. HAMA s.24 states that a person who has ceased to be a Hindu by conversion is not entitled to claim maintenance under that Chapter.
What can a Magistrate or court order, and how is the amount fixed?
- BNSS s.144(1) allows a Magistrate of the first class, upon proof of neglect or refusal, to order the person to make a monthly allowance for maintenance at such monthly rate as the Magistrate thinks fit and to pay it to the person the Magistrate directs. BNSS s.144 also allows the Magistrate to order interim monthly maintenance and the reasonable expenses of the proceeding while the main application is pending (BNSS s.144 provisos).
- HAMA s.23 gives courts discretion to determine whether maintenance shall be awarded and, if so, what amount. For a wife, children or aged parents the court must have regard to the parties’ position and status; the reasonable wants of the claimant; if the claimant is living separately, whether the claimant is justified in doing so; the value of the claimant’s property and income; and the number of persons entitled to maintenance (HAMA s.23(2)). For dependants under HAMA the court must regard factors such as the net value of the deceased’s estate, provision by will, degree of relationship, reasonable wants, past relations, the dependant’s property and income, and the number of dependants (HAMA s.23(3)).
- HAMA s.25 provides that the amount of maintenance fixed by decree or by agreement may be altered subsequently if there is a material change in the circumstances.
How is a BNSS order enforced or varied?
- BNSS s.144(2) says any allowance ordered 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. BNSS s.144(3) provides that if the person so ordered fails without sufficient cause to comply, the Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines. The Magistrate may sentence the person for the unpaid monthly allowance or interim maintenance and expenses to imprisonment for a term which may extend to one month, or until payment is made if sooner.
- BNSS s.144(3) contains a proviso that no warrant shall be issued for recovery of any amount under this section unless application is made to the Court to levy such amount within one year from the date on which it became due.
- BNSS s.146(1) allows the Magistrate, on proof of a change in the circumstances of any person receiving or ordered to pay a monthly allowance under s.144, to make such alteration in the allowance as he thinks fit. BNSS s.146(2) requires the Magistrate to cancel or vary an order if a competent Civil Court decision shows it should be cancelled or varied. BNSS s.146(3) deals with cancellation of orders made in favour of a divorced woman in specified circumstances.
- BNSS s.147 states that a copy of the order of maintenance or interim maintenance and expenses of proceedings shall be given without payment to the person in whose favour it is made (or to his guardian or to the person to whom the allowance is to be paid), and that 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 expenses due.
How does procedure start and where can proceedings be taken?
- BNSS s.145(1) provides that proceedings under s.144 may be taken in any district where the person against whom the order is sought is; where he or his wife resides; where he last resided with his wife or with the mother of the illegitimate child; or where his father or mother resides. BNSS s.145(2) requires that all evidence in such proceedings shall be taken in the presence of the person against whom an order is proposed, or, when his personal attendance is dispensed with, in the presence of his advocate. The Magistrate may proceed ex parte if satisfied the person is wilfully avoiding service, and an order made ex parte may be set aside for good cause if an application is made within three months (BNSS s.145(2) proviso).
Key points
- BNSS s.144 lets a Magistrate of the first class order monthly maintenance for a wife, child, father or mother when a person with sufficient means neglects or refuses to maintain them.
- The Magistrate can order interim maintenance and reasonable expenses during the proceeding; the interim application should, as far as possible, be decided within sixty days (BNSS s.144 proviso).
- Failure to pay can lead to a warrant for levy and imprisonment up to one month or until payment; a levy application must be made within one year of the amount becoming due (BNSS s.144(3)).
- HAMA gives Hindus specific maintenance rules: a wife’s lifetime entitlement (HAMA s.18), duty to maintain children and aged or infirm parents (HAMA s.20), and the factors courts must consider in fixing amounts (HAMA s.23).
- Maintenance orders can be altered on proof of material change of circumstances (BNSS s.146(1); HAMA s.25).
- A copy of a maintenance order must be given without payment to the person in whose favour it is made, and any Magistrate may enforce such an order when satisfied about identity and non-payment (BNSS s.147).
Laws referred to
- Bharatiya Nagarik Suraksha Sanhita, 2023 (Sections 144, 145, 146, 147)
- The Hindu Adoptions and Maintenance Act, 1956 (Sections 3(b), 3(c), 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28)
Official sources
This guide explains what the law itself says. Court rulings interpreting these provisions can also affect how they apply in a particular case. It states the position under the official texts listed above, as at 11 October 2026.
Source: Official text (egazette.gov.in) (opens in a new tab)