What Is Maintenance Under Indian Law?
Maintenance alimony India provisions allow financially dependent family members to claim periodic monetary support from a person legally obligated to provide it. Historically governed by Section 125 of the Code of Criminal Procedure, 1973 (CrPC), this remedy is now contained in Section 125 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which came into force on 1 July 2024. The BNSS replaces the CrPC, but the substantive rights under this section remain largely identical, making prior case law fully applicable.
Unlike personal law remedies (such as Section 24 of the Hindu Marriage Act, 1955 or the Muslim Women (Protection of Rights on Divorce) Act, 1986), Section 125 BNSS is a secular, summary criminal proceeding available to all persons regardless of religion. Its primary purpose is to prevent destitution, not to punish the defaulting party.
Who Can Claim Maintenance Under Section 125 BNSS?
Section 125 BNSS recognises four categories of claimants:
- Wife: A legally married wife who is unable to maintain herself may claim maintenance from her husband. This includes a wife who is separated but not yet divorced. Importantly, a divorced wife can also claim maintenance until she remarries, provided she has not received the full and final settlement of her dues under any personal law or court order.
- Minor children: Legitimate or illegitimate minor children (below 18 years) who are unable to maintain themselves can claim against their father. A married daughter below 18 may also claim if her husband is unable to maintain her.
- Adult children with disability: Children who have attained majority but are unable to maintain themselves due to physical or mental abnormality or injury may claim against their father.
- Parents: Both father and mother who are unable to maintain themselves may claim against their son or daughter who has sufficient means.
Tip: A wife living separately due to the husband's cruelty, his taking a second wife, or his contracting a disease communicable to her is entitled to maintenance even while living apart. The Supreme Court confirmed this in Rajnesh v. Neha (2021) 2 SCC 324.
Who Cannot Claim Maintenance?
Section 125(4) BNSS bars a wife from claiming maintenance if she is living in adultery, or if she refuses to live with her husband without sufficient reason, or if they are living separately by mutual consent. Courts examine these defences carefully and the burden of proof lies on the husband raising the objection.
How Much Maintenance Can Be Claimed?
The BNSS does not prescribe a fixed formula. Courts exercise judicial discretion based on the following factors established through decades of Supreme Court jurisprudence:
- The income, assets and earning capacity of the respondent (the person from whom maintenance is claimed)
- The reasonable needs and standard of living of the claimant
- The income, if any, of the claimant
- Number of dependants the respondent already supports
- Conduct of the parties
- Age and health of the claimant
In Rajnesh v. Neha (2021), the Supreme Court issued comprehensive guidelines directing all family courts and magistrate courts to follow a standardised affidavit of assets and liabilities (available in the judgment itself) to bring uniformity to maintenance orders. The Court also held that maintenance orders should factor in 25% of the husband's net salary as a benchmark in matrimonial disputes, though this is a guideline, not a rigid rule.
Interim maintenance during pendency of proceedings is commonly awarded within a few weeks of filing. Final maintenance awards in reported cases range from ₹3,000 to over ₹1,00,000 per month depending on the respondent's income, city of residence and family circumstances. State high courts frequently revise quantum on appeal.
Tip: Collect documentary evidence of the respondent's income — salary slips, ITR filings, bank statements, property documents — before filing. Courts increasingly rely on financial affidavits ordered under the Rajnesh guidelines.
Which Court Has Jurisdiction?
An application under Section 125 BNSS is filed before the Judicial Magistrate of the First Class (JMFC) or a Metropolitan Magistrate in metropolitan areas. The claimant may file in the district where they reside, where the respondent resides, or where the respondent last resided with the claimant. This choice of forum is a significant procedural advantage for the claimant.
If a Family Court exists in the district (under the Family Courts Act, 1984), jurisdiction may vest there. Check local court notifications, as states differ. For guidance on finding a qualified family law advocate in your city, browse the advocates directory on LegalFirms.in.
Step-by-Step Process to File a Maintenance Application
Filing a maintenance claim involves several procedural stages. While an advocate is not mandatory, professional assistance significantly improves outcomes. You can find experienced family law practitioners through the law firms directory on this platform.
- Step 1 – Drafting the application: Prepare a written application (petition) setting out the relationship with the respondent, the inability to maintain oneself, the respondent's means, and the amount claimed. Attach supporting documents: marriage certificate, birth certificates of children, proof of residence, and any evidence of income or assets of the respondent.
- Step 2 – Filing at court: Submit the application at the filing counter of the appropriate Magistrate Court or Family Court. Court fees for Section 125 BNSS proceedings are nominal and governed by the Court Fees Act; they vary by state but are typically under ₹500 for the petition itself.
- Step 3 – Interim maintenance application: Simultaneously file an application for interim (temporary) maintenance under Section 125(2) BNSS. Courts are required to dispose of interim maintenance applications within 60 days of service of notice on the respondent, per the BNSS mandate.
- Step 4 – Service of notice: The court issues notice to the respondent. If the respondent evades service, the claimant may request substituted service (notice by publication or affixation).
- Step 5 – Filing affidavit of assets: Both parties file standardised affidavits of income, assets and expenditure as directed by the Rajnesh guidelines. Non-disclosure invites adverse inference.
- Step 6 – Evidence and arguments: Both sides lead evidence (oral and documentary). Proceedings are summary in nature, meaning they are faster than regular civil suits.
- Step 7 – Order: The magistrate passes a maintenance order specifying the monthly amount and date from which it is payable. Under BNSS, final disposal should ideally occur within 60 days of the first date of hearing, though actual timelines vary by court load.
- Step 8 – Enforcement: If the respondent defaults, the claimant may apply for execution. The magistrate can issue a warrant for attachment of property or, in cases of wilful default, sentence the respondent to imprisonment of up to one month per month of default under Section 125(3) BNSS.
Interim Maintenance: The 60-Day Rule Under BNSS
One of the most significant changes introduced by the BNSS is the statutory mandate for courts to dispose of applications for interim maintenance within 60 days from the date of service of notice on the respondent. This codifies the spirit of the Supreme Court's directions in Rajnesh v. Neha and aims to address the long delays that claimants faced under the old CrPC framework. Claimants should follow up actively if this timeline is not adhered to.
Maintenance Under Personal Laws vs Section 125 BNSS
Section 125 BNSS coexists with personal law remedies. A Hindu wife may simultaneously pursue maintenance under Section 24 or 25 of the Hindu Marriage Act, 1955, or Section 18 of the Hindu Adoptions and Maintenance Act, 1956. Muslim women may claim under the Muslim Women (Protection of Rights on Divorce) Act, 1986, and Christian or Parsi claimants may use provisions of the Indian Divorce Act, 1869, or the Parsi Marriage and Divorce Act, 1936 respectively. However, Section 125 BNSS offers a faster, secular, and more accessible remedy. Courts have held that pursuing both remedies is permissible, though double recovery of the same amount is not allowed.
Tip: A Muslim wife whose husband has given talaq and paid mahr can still approach a Section 125 BNSS court if she has not received adequate provision and maintenance as required by the Muslim Women Act. The Supreme Court affirmed this in Mohd. Abdul Samad v. State of Telangana (2024).
Common Mistakes to Avoid
- Filing in the wrong court or wrong jurisdiction, causing delay and dismissal
- Failing to serve notice properly, stalling interim maintenance
- Not disclosing one's own income accurately — courts can reduce maintenance if the claimant is found to be concealing earnings
- Not filing for interim maintenance simultaneously with the main petition
- Ignoring the standardised affidavit requirement under Rajnesh guidelines, which weakens the case
- Accepting a verbal settlement without a written, court-recorded agreement
Enforcement and Modification of Maintenance Orders
A maintenance order under Section 125 BNSS can be modified upward or downward if there is a change in circumstances — for example, the respondent's income increases substantially, or the claimant starts earning independently. Either party may apply to the same magistrate for variation. For detailed procedural guidance on family law proceedings, explore the legal guides section on LegalFirms.in.
When Should You Consult an Advocate?
While Section 125 BNSS proceedings are designed to be accessible, legal complexity arises quickly — particularly around cross-examination, financial affidavits, jurisdictional challenges, and enforcement. Consulting a qualified family law advocate is advisable before filing, especially when the respondent is likely to contest vigorously, when substantial assets are involved, or when the matter involves simultaneous divorce proceedings. You can search for family law specialists via the LegalFirms.in advocate directory filtered by city and practice area.
This guide is general legal information, not legal advice. Laws and procedures may vary by state and change over time. Consult a qualified advocate for advice specific to your situation.
Step-by-Step Process
Assess Eligibility and Collect Documents
Confirm you fall within the claimant categories — wife, minor child, adult disabled child, or parent. Gather documents: marriage certificate, birth certificates, proof of residence, evidence of respondent's income (salary slips, ITR, bank statements, property records), medical records if disability is a ground, and any prior court orders.
Determine the Correct Court and Jurisdiction
Identify whether to file before a Judicial Magistrate First Class or a Family Court in your district. You may file where you reside, where the respondent resides, or where you last resided together. Confirm which court has jurisdiction in your district by checking the district court website or consulting a local advocate.
Draft the Maintenance Petition
Prepare a written application stating the relationship, inability to maintain yourself, the respondent's means and income, the amount claimed, and the basis for the claim. Attach all supporting documents. Simultaneously draft an application for interim maintenance requesting the court to fix a temporary amount pending final disposal.
File the Petition and Pay Court Fees
Submit the petition and interim maintenance application at the court filing counter. Pay the applicable court fee (usually nominal, under ₹500, but verify with the court registry as it varies by state). Obtain the case number and next hearing date.
Ensure Proper Service of Notice on the Respondent
The court will issue notice to the respondent. Ensure the notice is served correctly — by registered post, bailiff, or any mode ordered by the court. Proper service triggers the 60-day BNSS timeline for interim maintenance disposal. If the respondent evades service, promptly apply for substituted service.
File Affidavit of Assets and Income
Both parties are required to file standardised affidavits of income, assets, expenditure and liabilities as directed by the Supreme Court in Rajnesh v. Neha (2021). File your affidavit accurately and completely. Request the court to direct the respondent to file theirs if they delay.
Attend Hearings and Lead Evidence
Attend all hearing dates. Present oral testimony and documentary evidence. Cross-examine the respondent on their income and assets. Proceedings under Section 125 BNSS are summary in nature, so hearings should move relatively quickly compared to civil suits.
Obtain the Maintenance Order
After arguments, the magistrate passes an order specifying the monthly maintenance amount and the date from which it is payable. Ensure the order is in writing and obtain a certified copy. Verify it covers payment from the date of filing, not just the date of the order.
Enforce the Order if the Respondent Defaults
If the respondent fails to pay, file an execution application before the same magistrate. The court may attach the respondent's property or, for wilful default, impose imprisonment of up to one month per month of arrears under Section 125(3) BNSS. Keep records of all payments received and defaults for the execution application.
Apply for Modification if Circumstances Change
Either party may apply to the magistrate to increase or decrease maintenance if there is a material change in circumstances — such as a significant rise in the respondent's income, the claimant gaining employment, or the child attaining majority. File a modification application with documentary evidence of the changed circumstances.