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Family Law

Section 125 Maintenance Case: Procedure Step by Step

How a Section 125 CrPC maintenance case works in West Bengal, now filed under Section 144 BNSS: the steps, the documents and what happens next.

A maintenance case under Section 125 CrPC, now filed under Section 144 of the BNSS since 1 July 2024, begins with a sworn application before the Judicial Magistrate within whose local limits you or the person you claim against lives. You file it with your documents, the court issues notice, both sides lead evidence, and the court passes a monthly maintenance order. You may also apply for interim maintenance while the case is pending.

Section 125 CrPC and Section 144 BNSS: the same right, a new number

The provision has changed its address, not its content. From 1 July 2024 the Bharatiya Nagarik Suraksha Sanhita, 2023 replaced the Code of Criminal Procedure, 1973, and the maintenance provision that stood at Section 125 CrPC was re-enacted as Section 144 BNSS. Applications filed before that date continue under the CrPC, while fresh applications are filed under the new numbering. The categories of claimant, the kind of order the Magistrate can pass and the enforcement machinery are materially the same. Because judgments, formats and court staff still use Section 125, you will see both numbers for the same proceeding. Someone searching for a 125 maintenance case and someone searching for Section 144 BNSS are looking for the same remedy.

Who can claim maintenance, and against whom

Section 125 is not confined to any one personal law. It applies to a wife, to a minor child whether legitimate or illegitimate, to an adult child who cannot maintain himself because of physical or mental infirmity, and to a father or mother who cannot maintain themselves. The obligation runs against a person who has sufficient means and who neglects or refuses to maintain the claimant. Because it is a summary criminal remedy, it works alongside, and not instead of, any right under the personal law.

ClaimantAgainst whomPoint to note
Wife, including a divorced wife who has not remarriedHusbandNeglect or refusal is enough; the wife need not show she is unable to maintain herself.
Minor child, legitimate or illegitimateFather, and in some cases the motherInability to maintain is presumed for a minor.
Adult child with physical or mental infirmityParentThe infirmity and the resulting inability must be shown.
Father or mother unable to maintain themselvesSon or daughter with sufficient meansThe parent's own inability must be pleaded and proved.

Where to file the maintenance case

The forum is fixed by Section 126 CrPC, now Section 145 BNSS. The application lies before a Magistrate of the first class having jurisdiction over the place where the claimant resides, where the person against whom maintenance is claimed resides or works for gain, or where the parties last resided together. In practice a wife living in Kolkata can file before the court having jurisdiction over her own residence, even if the husband lives elsewhere in India. Within Kolkata the application is filed before the Chief Metropolitan Magistrate's court; in the districts it goes before the Court of the Judicial Magistrate having local jurisdiction. If you are unsure which court covers your address, confirm that first, because a wrong forum is a needless delay.

A case already begun in one court can be transferred, and the High Court has the power to transfer a maintenance proceeding from one district to another on the application of either party. Where there is a real risk of harassment, or the claimant cannot reasonably travel to the distant court for every hearing, the transfer jurisdiction is worth knowing about, though it is a separate application with its own delay. In most cases it is simpler to file in the correct forum at the start from the list above.

How the application is drafted and filed

The application is a sworn petition, and its contents decide how smooth the case will be. It should state the date and place of the marriage and how the parties lived together, the date of separation, the husband's income, assets and liabilities so far as they are known, the claimant's own income if any, and the monthly expenses of the claimant and the children. The neglect or refusal to maintain must be pleaded, and at least one clear instance, such as a written demand or an outright refusal, strengthens the case. The petition is verified, filed with an affidavit in support and a list of documents.

  • The petition, signed and verified by the claimant.
  • An affidavit in support setting out the marriage, the separation and the means of both sides.
  • Proof of the marriage as relied on, and photographs or other material if available.
  • Income material, bank statements, salary slips or returns, so far as they can be gathered.
  • Proof of the claimant's expenses and, where children are involved, their school and medical costs.

Many courts follow a prescribed format, and a petition that leaves income particulars blank is usually returned for amendment, which pushes the first hearing back by weeks.

Interim maintenance while the case is pending

A final order can take a long time. The court can therefore order interim maintenance during the pendency of the case, to be paid from a date it fixes. You ask for this in the main application or by a separate application, supported by an affidavit and whatever proof of the other side's income you can gather. The court looks at the apparent means of the person liable and the prima facie need of the claimant, and fixes a monthly sum that can be revised later. Because that monthly sum is what actually supports a family through a long case, interim maintenance is often the single most important step, and it should be pressed at the first hearing rather than left for the end.

The hearing: evidence and proof of income

The court follows a summary procedure, and after the 2023 criminal law amendments evidence may be taken by affidavit with a right to cross-examine. Two things decide most cases: the claimant's need and the other side's means. Salary slips, bank statements, income-tax returns, Form 16, rent agreements and the affidavit of assets that the person liable may be required to file are the ordinary proof. Where income is concealed, or the person has moved to a lower-paid job to defeat the claim, the court is entitled to look at the standard of living, the house, the vehicle, the children's school and the household expenditure, and to draw a reasonable inference. A court will not accept at face value a claim of sudden poverty that the person's own way of living contradicts.

Enforcement if maintenance is not paid

An order is of little use if it is disobeyed. The enforcement provision, Section 125(3) CrPC and now Section 144(3) BNSS, allows the Magistrate to recover the unpaid amount as if it were a fine, by issuing a warrant, attaching movable or immovable property and, in the last resort, ordering imprisonment. Each month's default is a fresh cause of action, and the amount that can be recovered in one execution is limited, so an order that you do not enforce month after month can quietly lose its older arrears. If the defaulter lives in another district the order can be sent for execution to the court there. Keep a clean record of every payment and every default.

How long it takes and what decides the amount

A maintenance case is meant to be summary, but courts at every level are crowded. In Kolkata and the districts interim relief may come within a few months, while a contested final order commonly takes a year or more. The monthly figure has no fixed formula. The court weighs the income and liabilities of the person liable, the reasonable needs of the claimant and the standard of living the family enjoyed, and it tries to fix a sum that is fair but also capable of being paid. The order is not final forever: if either side's circumstances change materially, the amount can be increased, reduced or cancelled on a fresh application.

Where people go wrong

Most problems in these cases are avoidable. Filing before the wrong court, leaving income particulars blank, claiming an inflated figure that cannot be justified at the hearing, or neglecting to enforce an order once obtained, all cost time and money. A clear, modest, well-supported claim is usually stronger than an ambitious one with nothing behind it. If you have an order and the payments have stopped, treat enforcement as a fresh task and move on it promptly.

You are entitled to conduct a maintenance case yourself, and legal aid is available to those who qualify, so cost should not stop you from filing. In practice, however, the drafting of the application and the gathering of income evidence are what decide the outcome, and a well-prepared file on either side shortens the hearings considerably. That is the difference between an order that is passed quickly and one that drags on for years.

For the underlying provision read the Section 125 maintenance guide, and for the wider family-law setting see divorce and family law basics. You can also reach the chamber through a free consultation.

Common questions

Frequently asked questions

Is Section 125 CrPC the same as Section 144 BNSS?
Yes. When the Bharatiya Nagarik Suraksha Sanhita replaced the Code of Criminal Procedure on 1 July 2024, the maintenance provision at Section 125 CrPC was re-enacted as Section 144 BNSS. The grounds, the categories of claimant and the enforcement powers are materially the same, and only the number has changed.
How long does a maintenance case take?
There is no fixed period. An application for interim maintenance can be heard within a few months, while a contested final order often takes a year or more in the Kolkata and district courts. You should ask for interim maintenance at the outset so that some support begins early.
Do I have to prove my husband\'s actual income to get maintenance?
Not perfectly. You must give the best particulars you can, and the court can draw a reasonable inference from his standard of living where income is concealed or understated. An affidavit of assets may be required from the person liable, and salary slips, bank statements and returns are the usual proof.
Can a maintenance order be increased or reduced later?
Yes. If there is a material change in the circumstances of either side, such as a change in income, employment or needs, the amount can be increased, reduced or cancelled on a fresh application. This is why it helps to keep evidence of income and expenditure even after the first order.
Where do I file a Section 125 maintenance case in Kolkata?
Before the Metropolitan Magistrate having jurisdiction over the place where you reside, where the other person resides or works for gain, or where you last lived together. Within Kolkata this is the Chief Metropolitan Magistrate\'s court, and in the districts the Court of the Judicial Magistrate having local jurisdiction.
Is a maintenance case separate from a divorce case?
Yes. A Section 125 CrPC or Section 144 BNSS application is a summary criminal remedy for monthly support, and it is independent of any divorce or other matrimonial proceeding. It can run at the same time as a divorce case, and the relief granted in one does not automatically decide the other.
Advocate Panchanand Shaw

Practising advocate, Calcutta High Court. Chamber at 14 Hare Street, opposite Bankshall Court, Kolkata 700001.

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