With the introduction of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), India has witnessed a historic shift in its criminal justice system, replacing the long-standing Code of Criminal Procedure, 1973 (CrPC). Among the many provisions retained and refined in BNSS is the law concerning maintenance, particularly under Chapter IX of the Code. Maintenance laws serve as a critical socio-legal mechanism to ensure the financial support and dignity of individuals—primarily women, children, and elderly parents—who are unable to maintain themselves.
In this blog, we delve into the provisions for maintenance under BNSS, its similarities and differences with CrPC, and its implications for Indian society.
1. What is Maintenance in Legal Terms?
Maintenance is the financial support that a person is legally obliged to provide to dependents who cannot sustain themselves. In the Indian legal system, maintenance ensures the protection of vulnerable individuals such as:
- Wives (including divorced or separated)
- Minor children (legitimate or illegitimate)
- Major children (if physically/mentally incapacitated)
- Elderly parents
2. Legal History: CrPC to BNSS
Before BNSS, maintenance provisions were covered under Section 125 to 128 of the CrPC. These were secular in nature and applied to people of all religions, ensuring that no dependent was denied support due to religious or personal laws.
BNSS has largely retained the spirit and structure of these provisions, now enumerated under Sections 144 to 147. The intent is to ensure continuity in welfare-related matters while modernizing procedural aspects.
3. BNSS Maintenance Provisions: Key Sections Explained
Let’s explore the relevant BNSS sections that deal with maintenance:
Section 144: Order for Maintenance of Wife, Children, and Parents
This section is analogous to Section 125 of CrPC. It empowers a Magistrate of the first class to order monthly maintenance to:
- A wife who is unable to maintain herself.
- A legitimate or illegitimate minor child, whether married or not.
- A major child who is unable to maintain due to physical or mental abnormality.
- Father or mother, who are unable to maintain themselves.
Key Highlights:
- The term “wife” includes a woman who has been divorced or has obtained judicial separation.
- Maintenance can be awarded from the date of application or order, based on the Magistrate’s discretion.
- There is no religious bar—this applies uniformly to Hindus, Muslims, Christians, etc.
Section 145: Interim Maintenance and Expenses of Proceeding
This section allows for interim maintenance during the pendency of proceedings, similar to CrPC. It ensures that the petitioner is not left financially helpless during prolonged litigation.
Noteworthy Additions:
- The Magistrate may direct reasonable expenses of proceedings, including legal costs.
- Ensures that the process is not used to harass or economically drain the dependent.
Section 146: Alteration in Allowance
This provision allows for modification, increase, decrease, or cancellation of the maintenance order if there is a change in circumstances. For example:
- If the wife remarries.
- If the child becomes self-sufficient.
- If the income of the respondent increases or decreases significantly.
This makes the maintenance dynamic and adaptable.
Section 147: Enforcement of Order of Maintenance
This section empowers the Magistrate to enforce maintenance orders by:
- Issuing a warrant for the amount due.
- Sentencing the defaulter to imprisonment up to 1 month for each month’s default.
However, imprisonment does not extinguish the financial liability.
4. Maintenance for Muslim Women: BNSS and Personal Laws
A significant point of discussion is how BNSS interacts with personal laws, especially in light of landmark judgments like Shah Bano (1985) and the Muslim Women (Protection of Rights on Divorce) Act, 1986.
BNSS, like CrPC, maintains a secular approach. Muslim women can still approach the Magistrate under Section 144 BNSS, irrespective of personal law restrictions. Courts have reiterated that secular maintenance rights under criminal law cannot be overridden by personal laws.
5. Differences Between BNSS and CrPC on Maintenance
While BNSS retains the core philosophy of CrPC, there are some procedural updates:
| Point | CrPC | BNSS |
|---|---|---|
| Section Numbers | 125–128 | 144–147 |
| Language | Older terminology | Updated legal language |
| Digital Filing | Limited | More open to digital filing |
| Gender Sensitivity | Present | Improved clarity and enforcement mechanisms |
| Time-bound Trials | Lacked specificity | BNSS promotes faster trials under general procedural reforms |
6. Judicial Interpretation of Maintenance Laws
Indian courts have consistently interpreted maintenance laws in a liberal and pro-welfare manner:
- Shah Bano Case (1985): Upheld the right of Muslim women to claim maintenance under CrPC.
- Danial Latifi v. Union of India (2001): Clarified that Muslim women can seek “reasonable and fair provision” for the future.
- Rajnesh v. Neha (2020): Directed courts to ensure timely disposal and asked for disclosure of assets and liabilities from both parties.
With BNSS, such interpretations remain relevant and binding.
7. Practical Challenges in Maintenance Enforcement
Despite progressive laws, practical challenges remain:
- Delayed proceedings and backlog in courts.
- Evasion of payments by non-compliant husbands or children.
- Lack of awareness among women and elderly about their rights.
- Difficulty in proving income and needs.
BNSS aims to streamline court procedures and promote digitization, which may help mitigate some of these issues.
8. Why Maintenance Laws Under BNSS Matter Today
In the context of rising domestic violence, single motherhood, abandonment of parents, and economic inequality, maintenance laws act as a social lifeline. BNSS reaffirms the state’s commitment to:
- Protecting the dignity of women and children.
- Supporting vulnerable parents left behind by their children.
- Making justice accessible and equitable.
Conclusion: A Welfare Tool with Stronger Legal Backing
The Bharatiya Nagarik Suraksha Sanhita, 2023, while a procedural criminal law, carries forward essential welfare protections like maintenance with a renewed focus on efficiency, clarity, and justice. Sections 144 to 147, mirroring CrPC’s Section 125 to 128, remain one of the few social welfare provisions in criminal law, reflecting India’s unique socio-legal fabric.
It is now up to the judiciary, legal professionals, and civil society to ensure these provisions are used effectively, enforced fairly, and reach those most in need.
FAQs on Maintenance Under BNSS
Q1: Can a divorced Muslim woman claim maintenance under BNSS?
Yes, she can claim maintenance under Section 144 BNSS, irrespective of personal laws.
Q2: What happens if the husband refuses to pay maintenance?
Under Section 147 BNSS, he can be imprisoned for up to 1 month for each default.
Q3: Can interim maintenance be granted during the trial?
Yes, Section 145 allows interim maintenance and litigation expenses.
Q4: Can elderly parents seek maintenance from daughters as well?
Yes, the law is gender-neutral regarding children’s responsibility.
Q5: What is the limit of monthly maintenance under BNSS?
There is no fixed limit. The Magistrate decides based on needs and means of both parties.
This link leads to the official India Code website where Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023