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Maintenance — the financial support one person is obligated to provide to another — is a central feature of Indian family law. Multiple statutes address it, and the applicable framework depends on the religion of the parties, the nature of their relationship and the forum before which an application is made. This note provides a general overview.
The most widely applicable provision is Section 125 of the Code of Criminal Procedure, 1973 (now Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023). It applies to all persons regardless of religion and allows a Magistrate's Court to order maintenance for a wife, legitimate or illegitimate child, or parent who is unable to maintain themselves, from a person who has the means but neglects or refuses to do so.
For Hindus, maintenance during and after marriage is additionally governed by the Hindu Marriage Act, 1955 and the Hindu Adoptions and Maintenance Act, 1956. For Muslims, the Muslim Women (Protection of Rights on Divorce) Act, 1986 and subsequent judicial developments are relevant. The Indian Divorce Act, 1869 applies to Christians, and the Parsi Marriage and Divorce Act, 1936 to Parsis.
Under Section 125 CrPC / Section 144 BNSS, a wife (including a divorced wife in certain circumstances), a legitimate or illegitimate child who is a minor (or an adult child unable to maintain themselves due to physical or mental abnormality), and a parent — including a father or mother — who is unable to maintain themselves may all apply.
The object of Section 125 is to prevent vagrancy and destitution by compelling those who can provide support to do so — it is a measure of social justice as much as of family law.
In determining the quantum of maintenance, courts typically consider the financial capacity of the person from whom maintenance is sought, the needs and standard of living of the applicant, the financial resources of the applicant, the number of dependants, and — in matrimonial matters — the conduct of the parties and the duration of the marriage. No rigid formula applies; the exercise is one of judicial discretion guided by the evidence.
Courts have the power to award interim maintenance pending final determination of a maintenance application. The Supreme Court has, in a series of decisions, set out guidelines for the timely disposal of maintenance applications and the award of adequate interim maintenance where the financial disparity between the parties is evident from the record.
Where a maintenance order is not complied with, the law provides for enforcement including attachment and sale of property, imprisonment for default, and other measures available under the applicable procedural law. Non-compliance with a court order of maintenance is taken seriously by the courts.
The welfare of the child is the paramount consideration in all matters relating to children's maintenance and custody. Both parents are ordinarily obliged to contribute to the maintenance of their children in proportion to their respective means, regardless of who has custody.
This note is published by HNT Legal for general educational purposes only, in accordance with the Bar Council of India Rules, 1975. It does not constitute legal advice, does not create an advocate-client relationship, and must not be acted upon without specific professional guidance on the facts of your matter.