Maintenance for yourself or a child: who can claim, how much

What has probably happened

Someone who should be supporting you, or your child, has stopped. A husband has left, or sent you back to your parents, and sends nothing. A separated parent pays nothing for the children. An adult son or daughter will not look after an elderly parent. Or money comes irregularly, and never enough.

The law calls the money one person must pay for another's support maintenance: enough for food, shelter, clothing, education and medical care. The person asking is the claimant; the person asked to pay is the respondent. Money ordered while a case is still going on is interim maintenance.

Who can claim, and under which law

Anyone, whatever their religion — Section 144, BNSS. This replaced Section 125 of the Code of Criminal Procedure. A Magistrate, or the Family Court where there is one (Family Courts Act, Section 7), can order a person with sufficient means who neglects or refuses to maintain them to pay a monthly allowance to:

• a wife unable to maintain herself, including a divorced woman who has not remarried;
• a child, legitimate or not, married or not, unable to maintain itself;
• an adult child who cannot maintain themselves because of a physical or mental abnormality or injury (not a married daughter);
• a father or mother unable to maintain themselves.

A wife cannot get maintenance under this section if she is living in adultery, refuses without sufficient reason to live with her husband, or they live apart by mutual consent (Section 144(4)).

Hindus — the Hindu Adoptions and Maintenance Act, 1956. A Hindu wife is entitled to be maintained by her husband for her lifetime, and can live separately without losing that right if he has deserted her, treated her with cruelty, has another wife living, or in the other situations Section 18 lists. A Hindu parent must maintain their minor children, and their aged or infirm parents and unmarried daughter so far as these cannot maintain themselves (Section 20).

During a divorce or other matrimonial case. Under the Hindu Marriage Act, a husband or wife without enough independent income can claim monthly support and the costs of the case (Section 24), and permanent alimony when or after the decree (Section 25). The court can order maintenance for minor children too (Section 26). The Special Marriage Act gives a wife similar rights (Sections 36 and 37); the Parsi Marriage and Divorce Act gives them to either spouse (Sections 39 and 40).

Women facing domestic violence. Under Section 20 of the Domestic Violence Act, 2005, the Magistrate can order maintenance for the woman and her children as part of monetary relief.

Divorced Muslim women. Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 entitles a divorced woman to a reasonable and fair provision and maintenance from her former husband, her mahr (dower) and the properties given to her, and lets her apply to a Magistrate if these are not paid.

How much

None of these laws sets a formula, a percentage or a minimum. The court decides on the evidence. What it looks at, in the words of the Acts:

• Both sides' income and property (Hindu Marriage Act, Sections 24 and 25).
• The position and status of the parties, the claimant's reasonable wants, the claimant's own income and property, and the number of people entitled to maintenance (Hindu Adoptions and Maintenance Act, Section 23).
• The standard of living the woman is used to (Domestic Violence Act, Section 20).

So the amount depends on what you can show. A clear list of your expenses and solid proof of the other side's earnings do more than anything else.

What to do, step by step

Today — make sure you and the children are safe and housed. If you are facing violence at home, see Domestic violence application; the Magistrate can order protection, residence and money together.

This week — list your monthly expenses. Rent, food, school fees, tuition, transport, medicines, phone, clothing. Keep bills and receipts. If you have moved back to your parents' home, write down what you are spending there too.

This week — gather proof of the other side's means. Their employer and job title, salary slips you have seen, bank accounts, property, vehicles, business, rent they receive, tax returns, even photographs of lifestyle spending. You do not need complete proof; write down what you know and how you know it.

Keep a record of what stopped. When did they last pay, how much, and how? Messages refusing to pay, or asking you to come back, are useful.

Choose the route. If a divorce case is already running, interim maintenance is usually claimed in that case. If not, Section 144 BNSS is the most common route. If there is violence, the Domestic Violence Act may cover maintenance with other relief. An advocate can tell you which fits, and whether to use more than one.

File without delay, and ask for interim maintenance in the same application. Under Section 144(2) BNSS the allowance is payable from the date of the order, or from the date of the application if the Magistrate so orders. Under Section 145 you can file where the respondent is, where he or his wife lives, where he last lived with his wife (or the mother of the child), or where his father or mother lives.

What happens next

The court process, step by step, is in Maintenance: the routes and the steps, and the interim claim in Interim maintenance. Expect the court to ask both sides to disclose income, assets and expenses, usually on affidavit. The law asks for interim maintenance to be decided, as far as possible, within sixty days of notice reaching the respondent (BNSS Section 144; Hindu Marriage Act Section 24). Either side can later ask to change the amount if circumstances change (BNSS Section 146).

Timeline and costs

When	What	Who pays
This week	Expense list, proof of the other side's means	—
Filing	Application before the Magistrate or Family Court, with interim maintenance	Court fee, where charged (set by your state), and the advocate's fee, which they quote first
Within about sixty days of notice, as far as possible	Interim maintenance decided	—
Later	Final order; enforcement if payments stop	The advocate's fee as quoted

Documents to keep handy

• Marriage certificate or wedding photographs; children's birth certificates.
• Your identity and address proof.
• Your list of monthly expenses, with bills, school fee receipts and medical bills.
• Your own salary slips, bank statements and any property papers.
• Everything you know about the other side's income and property.
• Messages or letters showing neglect or refusal to pay.
• Copies of any other case or order between you.

Mistakes that sink people

• Waiting. Money is payable from the date of the order unless the Magistrate orders it from the date of the application.
• Understating your own income or assets. Courts expect full disclosure from both sides. Hiding something damages your credibility.
• Coming without proof of the other side's means. "He earns well" is not evidence. A salary slip, a bank entry or a property paper is.
• Not asking for interim maintenance at the start.
• Letting arrears pile up. Under Section 144(3) BNSS, apply to recover unpaid amounts within one year of each falling due.

When you want advice first

If you are not sure which route fits, or whether you qualify, a 30-minute call with an independent advocate from our panel starts at ₹999.