Interim maintenance: support and case costs while the case runs

What it is

Interim maintenance is a monthly amount the court orders one party to pay the other while a case is pending. It is often ordered together with the expenses of the proceeding, meaning the costs of running the case: court fees, the advocate's fee, travel to hearings. The Acts and court papers sometimes call it maintenance or alimony "pending the suit" — the same thing.

It is temporary. It lasts until the court decides the main case, when it is replaced by the final order: a final maintenance order, permanent alimony, or nothing at all.

The person asking is the applicant; the person asked to pay is the respondent to the application.

When it applies

You can ask for interim maintenance only within a case that is already filed, or in the same application that starts one. The law depends on the case:

• A divorce, judicial separation or other case under the Hindu Marriage Act, 1955 (Hindus, Buddhists, Jains and Sikhs) — Section 24. Either the husband or the wife can apply if they have no independent income sufficient for their support and the costs of the case. The court fixes a monthly sum it thinks reasonable, having regard to both incomes.
• A case under the Special Marriage Act, 1954 — Section 36. The wife can apply; the court can order a weekly or monthly sum.
• A case under the Divorce Act, 1869 (Christians) — Section 36. The wife can apply for alimony pending the suit and the expenses of the case.
• A suit under the Parsi Marriage and Divorce Act, 1936 — Section 39. Either spouse can apply.
• A maintenance case under Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaced Section 125 of the old Code of Criminal Procedure — the second proviso. While the case is pending, the Magistrate can order interim maintenance for the wife, child, father or mother, and the expenses of the case.
• A case under the Domestic Violence Act, 2005 — the Magistrate can pass interim orders (Section 23), including for maintenance as monetary relief (Section 20).

Children. In a Hindu Marriage Act case, the court can make interim orders for the maintenance and education of minor children (Section 26). The Special Marriage Act has the same power (Section 38).

The case is heard by the Family Court where one has been set up (Family Courts Act, Section 7), otherwise by the district court or, for the BNSS route, the Magistrate of the first class.

The steps and the timeline

1. The application. Your advocate files an application in the pending case. It sets out your income (or lack of it), your monthly needs and those of any children with you, what you know of the other side's income and property, and the expenses of the case. If you are starting a maintenance case under Section 144 BNSS, interim maintenance is asked for in the same application.

2. Disclosure of income, assets and expenses. Courts now usually ask both sides to file an affidavit — a sworn written statement — setting out their income, assets, liabilities and expenses, with supporting papers. Be complete and accurate. A false statement on affidavit has serious consequences, and anything you leave out can be used against you.

3. Notice and reply. The other side is served and replies, usually with their own affidavit.

4. Hearing. The court hears both sides, usually on the affidavits and documents rather than full evidence.

5. The order — within sixty days, as far as possible. Each of the Acts above says the application shall, as far as possible, be decided within sixty days of notice reaching the other side (Hindu Marriage Act, Section 24; Special Marriage Act, Section 36; Divorce Act, Section 36; Parsi Act, Section 39; BNSS, Section 144). Under Section 144(2) BNSS, the amount is payable from the date of the order or, if the Magistrate so orders, from the date of the application.

6. Payment and enforcement. Keep a record of every payment received and every one missed. Under Section 144(3) BNSS, an unpaid amount can be recovered by warrant, and the Magistrate can order imprisonment of up to one month, or until payment, for each month left unpaid. Apply within one year of each amount falling due.

7. Changes. If either side's circumstances change — a new job, a lost job, a child's new school — the amount can be altered (BNSS, Section 146).

Documents needed

• A copy of the pending petition or case, with its number, or the maintenance application you are filing.
• Proof of the relationship: marriage certificate, children's birth certificates.
• Your identity and address proof.
• Your income: salary slips, bank statements for the last year or so, tax returns — or a clear statement that you have none.
• Your assets and liabilities: property, savings, loans.
• Your monthly expenses, with bills: rent, food, school fees, medical bills, transport.
• Everything you know of the other side's income and property: employer, salary slips, tax returns, bank accounts, property and vehicle papers, business details.
• Receipts for the costs of the case so far.
• Copies of any other maintenance order or case between you.

Typical cost

The cost varies with the court, the number of hearings and whether enforcement is needed. Court fees, where charged, are set by each state. The advocate who takes your matter quotes their own fee before you pay anything; eMunshi does not set it. You can ask the court for the expenses of the case as part of the application.

What the advocate does

• Tells you which law and which court your application belongs in, and whether to claim for the children too.
• Drafts the application and your affidavit of income, assets and expenses.
• Gathers and presents proof of the other side's means, and tests their affidavit.
• Argues the application at the hearing.
• Applies to enforce the order if payments stop, or to change it if circumstances change.

The self-serve document that comes before it

There is no self-serve document for interim maintenance; it is filed in a court case and depends on your facts. To understand who can claim and how courts decide the amount, read Maintenance: who can claim, how much. If you want advice before deciding, a 30-minute call with an independent advocate from our panel starts at ₹999; talk to an advocate.