Maintenance for a wife, child or parent: the routes and the steps

What it is

Maintenance is regular money that the law requires one person to pay for another person's support: food, shelter, clothing, education, medical care. When someone who should pay neglects or refuses to, the person left without support can ask a court to order it.

The person asking is the applicant or claimant. The person asked to pay is the respondent. Money ordered while the case is still going on is interim maintenance. Money ordered when or after a divorce is granted is often called permanent alimony.

When it applies

There are several routes. You can use the one that fits your situation, and more than one can be open to you at the same time.

1. Section 144, Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). This replaced Section 125 of the Code of Criminal Procedure and applies whatever your religion. It covers:

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

The claim is against a person who has sufficient means and neglects or refuses to maintain them. The case is heard by a Magistrate of the first class, or by the Family Court where one has been set up (Family Courts Act, Section 7). Under Section 144(4), 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. If her husband has married another woman or keeps a mistress, the section treats that as a just ground for her refusal to live with him.

2. 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 in situations the Act lists, such as desertion, cruelty, or his having another wife living (Section 18). A Hindu must maintain their children, and their aged or infirm parents and unmarried daughter so far as these cannot maintain themselves (Section 20).

3. During and after a divorce or other matrimonial case. Under the Hindu Marriage Act, either spouse without sufficient independent income can claim monthly support and the costs of the case while it is pending (Section 24), and permanent alimony when or after the decree (Section 25). The court can also order maintenance for minor children (Section 26). The Special Marriage Act gives a wife similar rights (Sections 36 and 37).

4. Domestic Violence Act, 2005. A woman who applies for relief against domestic violence can ask for maintenance for herself and her children as part of monetary relief (Section 20). See Domestic violence application.

5. Divorced Muslim women. 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 (Section 3).

6. Senior citizens and parents. The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 lets a senior citizen or parent who cannot maintain themselves apply to a Maintenance Tribunal against their adult children or, for a childless senior citizen, certain relatives (Sections 4 and 5). Choose this Act or the BNSS route; you cannot claim under both (Section 12).

The steps and the timeline (BNSS route)

1. Choose where to file. Under Section 145 BNSS you can file in any district where the respondent is, where he or his wife lives, where he last lived with his wife (or with the mother of the child), or where his father or mother lives.

2. The application. It sets out the relationship, that you cannot maintain yourself, that the respondent has sufficient means, and how he has neglected or refused to support you. Ask for interim maintenance and the costs of the case in the same application.

3. Disclosure of income. Expect the court to ask both sides to set out their income, assets and expenses, usually on affidavit. Be complete and honest, and keep the papers that back up every figure.

4. Interim maintenance. The Magistrate can order interim maintenance and the expenses of the case while the application is pending. The law asks for this to be decided, as far as possible, within sixty days of notice reaching the respondent (Section 144, third proviso).

5. Evidence and hearing. Evidence is taken in the respondent's presence, or in his advocate's presence if his attendance is excused. If he wilfully avoids notice or does not attend, the Magistrate can decide the case without him; he can ask to set aside such an order within three months for good cause (Section 145).

6. The order. The Magistrate fixes a monthly allowance. It is payable from the date of the order, or from the date of the application if the Magistrate so orders (Section 144(2)). You get a copy of the order free (Section 147).

7. Enforcement. If the respondent does not pay, apply to the Magistrate within one year of each amount falling due. The Magistrate can issue a warrant to recover it and can order imprisonment of up to one month, or until payment, for each month's allowance left unpaid (Section 144(3)). The order can be enforced by a Magistrate anywhere the respondent is (Section 147).

8. Changes. Either side can ask to change the amount when circumstances change (Section 146).

There is no appeal from an order a Family Court makes under the maintenance chapter of the criminal procedure law (Family Courts Act, Section 19); the High Court can examine such orders. Your advocate will advise on the remedy that fits your court.

Documents needed

• Proof of the relationship: marriage certificate or wedding photographs; children's birth certificates; for parents, proof that the respondent is their child.
• Proof of identity and current address.
• Your income, assets and monthly expenses — salary slips, bank statements, rent, school fees, medical bills.
• Whatever you know of the respondent's income and assets — his job and employer, salary slips, property, vehicles, business, tax returns.
• Proof that he neglected or refused to support you: messages, letters, a record of what he stopped paying and when.
• Copies of any other case between you, and any earlier maintenance order.

Typical cost

The cost varies with the route, the court, the number of hearings and whether enforcement is needed later. 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.

What the advocate does

• Tells you which route, or which combination, fits your situation.
• Drafts the application, including interim maintenance and costs, and files it in the right court.
• Prepares your statement of income, assets and expenses, and gathers proof of the other side's means.
• Appears for you at the hearings and cross-examines the other side.
• Applies to enforce the order if payments stop, and to change it if circumstances change.

The self-serve document that comes before it

There is no self-serve document for a maintenance claim; the application depends on your facts and the route chosen. If you and your spouse are agreeing to a divorce, maintenance can be settled in the mutual consent petition instead. If you want advice before deciding, a 30-minute call with an independent advocate from our panel starts at ₹999; talk to an advocate.