Maintenance is the part of matrimonial litigation that most directly affects daily life, and the part where clients most often arrive with the wrong expectations. A wife who has been out of the workforce for a decade, a husband facing a claim computed on a salary he no longer earns, a mother supporting a child through school, a parent whose adult son has stopped paying anything — each of these is a maintenance matter, and each is decided by a different provision, in a different forum, on a different test.
The law does not fix a percentage of income, a standard figure, or a formula that can be looked up. What it does provide is a set of statutory routes, an increasingly standardised disclosure process, and a reasonably fast enforcement mechanism, including imprisonment for persistent default. Understanding which route applies, what the court will actually look at, and how quickly an interim order can be obtained is what makes the difference between a claim that is paid and one that is litigated for years.
The five statutory routes
The Bharatiya Nagarik Suraksha Sanhita, 2023 carries forward the old Section 125 of the Code of Criminal Procedure as Section 144. It is a summary remedy available to a wife, a child, or a parent unable to maintain themselves, against a person with sufficient means who neglects or refuses to maintain them. It applies regardless of religion, which is why it is the workhorse provision. Alongside it, the Hindu Marriage Act, 1955 provides interim maintenance and litigation expenses during pendency of a matrimonial petition under Section 24, and permanent alimony at the end under Section 25. The Hindu Adoptions and Maintenance Act, 1956 creates an independent civil right of maintenance for a wife, children and aged parents under Sections 18 and 20, with Section 23 listing the factors that govern the quantum. For marriages solemnised under the Special Marriage Act, 1954, Sections 36 and 37 perform the same function. The Protection of Women from Domestic Violence Act, 2005 adds monetary relief under Section 20, which can include rent, medical expenses and compensation. For Muslim marriages, the Muslim Women (Protection of Rights on Divorce) Act, 1986 governs post-divorce rights in addition to the secular remedy.
The choice between them is not academic. The BNSS route is criminal in form but civil in substance: it can be invoked quickly, it is not defeated by the wife's own income if that income is modest, and it carries a built-in enforcement mechanism. The HAMA route permits a larger, better-reasoned award and can be enforced as a civil decree. The HMA Section 24 route is only available inside an existing matrimonial proceeding. In practice, a wife often runs the BNSS petition for immediate support and the HMA or HAMA claim for the long term, and the courts are conscious of avoiding duplication.
What the court actually considers
Since the Supreme Court's decision in Rajnesh v Neha (2020), the disclosure regime has become far more concrete. Both parties are expected to file an affidavit of disclosure of assets and liabilities in the prescribed format, covering income, bank accounts, investments, property, loans and liabilities. The court looks at the status of the parties, the reasonable wants of the claimant, whether the claimant is capable of maintaining herself, the number of dependants, the standard of living during the marriage, and the liabilities of the payer. Where the payer's disclosed income is plainly inconsistent with his lifestyle, courts have drawn adverse inferences and estimated income rather than accepting the affidavit at face value.
Two propositions are consistently applied. First, maintenance is not charity and not a reward for good behaviour; it is a statutory entitlement. Second, a wife's own earnings do not automatically disqualify her, but they are factored in — the question is whether her income is sufficient to maintain the standard of living she had in the matrimonial home.
How a maintenance case runs
- Choose the forum and the provision. A BNSS Section 144 petition goes before the Judicial Magistrate First Class having jurisdiction where the husband resides, where the wife resides, or where the cause of action arose. A HAMA or HMA claim goes before the Family Court or the civil court of competent jurisdiction. Filing in the wrong forum costs months.
- Draft the petition with a computation. State the marriage, the separation, the husband's income and assets as known, the wife's expenses, the children's school fees, rent and medical costs, and the specific monthly figure claimed. A petition that simply asks for "appropriate maintenance" gets an appropriate but modest order.
- File the affidavit of disclosure. Attach salary slips, Form 16, ITR, bank statements, property documents and loan statements. Where the husband's income is unknown, state the basis of the estimate — his position, his business, his visible assets.
- Obtain interim maintenance. An application for interim maintenance is normally decided on affidavits, without a full trial. This is the order that matters most in the first year, and it is worth pressing for a date rather than allowing the case to be adjourned repeatedly.
- Lead evidence. Both sides file evidence by affidavit and are cross-examined. Documentary proof of income, employment, business turnover and expenses decides most cases; oral testimony rarely changes the outcome.
- Obtain the final order and a payment mechanism. Ask for the amount to be paid by a fixed date each month, by bank transfer, with a direction that arrears be cleared within a stated period.
- Enforce default. Non-payment is dealt with by warrant, attachment of property, or imprisonment. The court can also direct deduction from salary in appropriate cases. Enforcement is a separate application and should be filed promptly rather than after a year of arrears accumulates.
- Review or vary. Maintenance orders can be varied on a change in circumstances — loss of job, remarriage, a child's changed needs, or a substantial increase in income.
Document checklist
- Marriage certificate, or photographs and proof of the ceremony where registration is absent.
- Proof of separation — rent agreement, correspondence, FIR or domestic incident report.
- Husband's salary slips, Form 16, ITR, bank statements, credit card statements, where available.
- Property documents, vehicle registration, business registration and GST returns, where the husband is self-employed.
- Children's school fee receipts, medical bills, tuition and transport costs.
- Wife's own income documents, however modest — non-disclosure is far more damaging than a small salary.
- Loan and EMI statements for both parties.
- Affidavit of disclosure in the prescribed format, sworn before the appropriate authority.
- Evidence of the standard of living during the marriage — residence, holidays, household expenses.
Timelines and cost expectations
| Stage | Realistic duration | What drives the delay |
|---|---|---|
| Interim maintenance order | 3–9 months | Service of notice, adjournments, disclosure disputes |
| Full trial and final order (BNSS) | 1.5–3 years | Witness availability, evidence by affidavit, court load |
| HAMA or HMA civil claim | 2–5 years | Valuation, property evidence, connected matrimonial petitions |
| Enforcement of arrears | 2–8 months | Attachment procedure, service on employer or bank |
Court fees in maintenance matters are nominal, and in a Section 144 proceeding there is ordinarily no ad valorem fee at all. The real cost is professional time, which varies with the number of hearings, the volume of disclosure, and whether the matter is contested or resolved at the interim stage.
Defences, and how they are met
- "She earns enough." Met with evidence of the matrimonial standard of living and the shortfall. A teacher's salary rarely matches a household that ran on a business income.
- "I have no income; the business is in my father's name." Met with bank trails, GST records, property and vehicle ownership, and the inference that a person with visible assets has means.
- "She left without reason." In a Section 144 proceeding, the wife's entitlement does not depend on proving the husband's fault; refusal to maintain without sufficient cause is the only question. Cruelty or adultery allegations are largely irrelevant to the summary remedy.
The Kolkata forum detail
In Kolkata, a Section 144 BNSS petition is filed before the Judicial Magistrate First Class having territorial jurisdiction — commonly the courts in the city's magistrate complex, depending on the address of the parties. Matrimonial petitions under the Hindu Marriage Act and maintenance claims under the Hindu Adoptions and Maintenance Act are heard by the Family Court in Kolkata, which has jurisdiction over city residents, while parties in the districts file before the Family Court or district court of the concerned district, including Alipore for South 24 Parganas and Barasat for North 24 Parganas. Interim and final orders are amenable to revision before the Sessions Judge and, in appropriate cases, to challenge before the Calcutta High Court under its revisional and writ jurisdiction.
Common questions
Frequently asked questions
What is the difference between maintenance and alimony?
Maintenance is financial support paid during the marriage or separation before divorce, while alimony is the final settlement after divorce. Both are designed to ensure the dependent spouse can maintain a standard of living similar to what they enjoyed during the marriage.
Can a working wife claim maintenance?
Yes, a working wife can still claim maintenance if her income is insufficient to maintain the standard of living she enjoyed during marriage. The court considers both parties' incomes and may award maintenance if there is a significant disparity.
How long does it take to get a maintenance order?
An interim maintenance order can typically be obtained within 2-3 months from the date of filing. Final maintenance orders take 6-12 months depending on the court's caseload and case complexity.
Can maintenance be claimed retrospectively?
Yes, under Section 144 BNSS, the court can grant maintenance from the date of application. The court may also award maintenance from an earlier date if special circumstances exist.
What happens if the husband fails to pay maintenance?
Non-payment of maintenance is a criminal offense under Section 144 BNSS. The court can issue a warrant for the husband's arrest, attach his property, or sentence him to imprisonment for up to one month for each month of default.
Frequently asked questions
What is the difference between maintenance and alimony?
Maintenance is financial support paid during the marriage or separation before divorce, while alimony is the final settlement after divorce. Both are designed to ensure the dependent spouse can maintain a standard of living similar to what they enjoyed during the marriage.
Can a working wife claim maintenance?
Yes, a working wife can still claim maintenance if her income is insufficient to maintain the standard of living she enjoyed during marriage. The court considers both parties' incomes and may award maintenance if there is a significant disparity.
How long does it take to get a maintenance order?
An interim maintenance order can typically be obtained within 2-3 months from the date of filing. Final maintenance orders take 6-12 months depending on the court's caseload and case complexity.
Can maintenance be claimed retrospectively?
Yes, under Section 144 BNSS, the court can grant maintenance from the date of application. The court may also award maintenance from an earlier date if special circumstances exist.
What happens if the husband fails to pay maintenance?
Non-payment of maintenance is a criminal offense under Section 144 BNSS. The court can issue a warrant for the husband's arrest, attach his property, or sentence him to imprisonment for up to one month for each month of default.