Maintenance of Wives, Children and Parents

Four things to notice at once.

Illegitimacy is irrelevant in clauses (b) and (c). The Code is concerned with the child, not with the marriage.

A minor child is covered whether married or not, but an adult child only if unable to maintain itself through physical or mental abnormality or injury, and a married daughter is excluded from clause (c).

A father as well as a mother may claim under clause (d).

Only a wife, not a husband, may claim under clause (a). A destitute husband has no remedy under this section, and that is a standing criticism of it.

The first proviso. The Magistrate may order the father of a female child referred to in clause (b) to make the allowance until she attains majority, if satisfied that her husband, if she is married, is not possessed of sufficient means.

The second proviso, interim maintenance. During the pendency of the proceeding the Magistrate may order a monthly allowance for interim maintenance and the expenses of the proceeding as he considers reasonable.

The third proviso, the sixty day rule. An application for interim maintenance and expenses shall, as far as possible, be disposed of within sixty days from the date of service of notice of the application.

The Explanation, and it is the one to memorise. For the purposes of this Chapter, "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

Section 144(2): from what date

Any allowance for maintenance or interim maintenance and expenses is payable from the date of the order, or, if so ordered, from the date of the application.

On its face that is a discretion. Rajnesh v. Neha has made it a rule: maintenance in all cases is to be awarded from the date of filing the application. So the correct answer to "from what date does maintenance run?" is: the statute permits either, and the Supreme Court has directed the date of the application.

Section 144(3): enforcement

If a person ordered to pay fails without sufficient cause to comply, the Magistrate may, for every breach, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence him, for the whole or any part of each month's allowance remaining unpaid after execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made.

The first proviso, the one year bar. No warrant shall be issued for the recovery of any amount due unless application is made to the Court to levy it within one year from the date on which it became due.

The second proviso, the offer to maintain. If the person offers to maintain his wife on condition of her living with him, and she refuses to live with him, the Magistrate may consider any grounds of refusal she states, and may make an order notwithstanding the offer, if satisfied there is just ground for doing so.

The Explanation to sub-section (3). If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him.

Note the shape of the enforcement power. The imprisonment is for each month's default, up to one month at a time, and it ends the moment the money is paid. It is coercive, not punitive.

Section 144(4) and (5): when a wife loses the right

Sub-section (4). No wife is entitled to an allowance if she is living in adultery, or if without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.

Sub-section (5). On proof of any of those three things in respect of a wife in whose favour an order has been made, the Magistrate shall cancel the order.

Sub-sections (3) and (4) have to be read together, and the reading is not obvious. Refusal to live with the husband disentitles a wife only if it is without sufficient reason; and the Explanation to sub-section (3) makes a second marriage or a kept mistress a just ground, which means such a refusal is with sufficient reason.

Section 145: procedure

Sub-section (1), where. Proceedings may be taken against a person in any district:

(a) where he is; or (b) where he or his wife resides; or (c) where he last resided with his wife, or with the mother of the illegitimate child; or (d) where his father or mother resides.

Clause (d) is new in effect: it lets a parent sue where the parent lives, rather than having to follow the son.

Sub-section (2), how. All evidence is taken in the presence of the person against whom the order is proposed, or, where personal attendance is dispensed with, in the presence of his advocate, and is recorded in the manner prescribed for summons-cases.

The proviso, ex parte. If satisfied that the person is wilfully avoiding service or wilfully neglecting to attend, the Magistrate may hear and determine the case ex parte. Such an order may be set aside for good cause shown on an application made within three months, subject to terms including costs.

Sub-section (3). The Court has power to make such order as to costs as may be just.

Sections 146 and 147

Section 146, alteration and cancellation.

(1) On proof of a change in the circumstances of the person receiving or the person ordered to pay, the Magistrate may make such alteration in the allowance as he thinks fit.

(2) Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, an order under section 144 should be cancelled or varied, he shall cancel or vary it accordingly.

(3), the divorced woman. Where an order has been made in favour of a woman divorced by or who has obtained a divorce from her husband, the Magistrate shall cancel it if satisfied that:

• (a) she has remarried after the divorce, and the cancellation runs from the date of her remarriage;
• (b) she was divorced by her husband and has received, before or after the order, the whole of the sum which under any customary or personal law was payable on such divorce, and the cancellation runs from the date of the order where the sum was paid before it, and otherwise from the expiry of the period for which maintenance was actually paid;
• (c) she obtained the divorce and had voluntarily surrendered her rights to maintenance after it, and the cancellation runs from the date of the surrender.

(4) A Civil Court making a decree for the recovery of maintenance or dowry shall take into account what has already been paid or recovered as monthly allowance under section 144.

Sub-section (3)(b) is the provision Parliament wrote in after Shah Bano, and it is the one to name if a question asks how the Code deals with a payment made under personal law: the order is cancelled if the whole of the sum payable on divorce has been received.

Section 147, enforcement of the order. A copy of the order of maintenance or interim maintenance and expenses shall be given without payment to the person in whose favour it is made, or to his guardian, if any, or to the person to whom the allowance is to be paid. The order may be enforced by any Magistrate in any place where the person against whom it is made may be, on that Magistrate being satisfied as to the identity of the parties and the non-payment of the allowance or expenses.

Section 147 is what makes the order portable. A man who moves to another State does not escape it.

The cases

Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556.

Facts. A Muslim woman was divorced by her husband, an advocate, after more than forty years of marriage. She applied for maintenance under section 125 of the old Code. He argued that under Muslim personal law his liability was confined to the period of iddat, and that having paid mahr he owed her nothing further.

Held. The Court rejected the argument. Personal law does not contemplate or countenance the situation section 125 is directed at. The section is not concerned with whether a husband is liable to maintain his wife in all circumstances; it deals with a person of sufficient means who neglects or refuses to maintain a wife unable to maintain herself. Mahr is a mark of respect to the wife and is generally expected to take care of her ordinary requirements, but personal law does not meet the case of a divorced wife unable to maintain herself. The appeal was dismissed and the maintenance order confirmed.

Why it matters. It is the authority that the maintenance provision of the Code is a secular remedy against destitution which operates whatever the personal law of the parties, and the Explanation to section 144(1) carries the same idea by defining "wife" to include a divorced woman who has not remarried.

Rajnesh v. Neha, AIR 2021 SC 569.

Facts. An appeal from an order of interim maintenance under section 125. The Court used it to deal with problems that recur in every maintenance case: claims under several statutes at once, no reliable material about either side's means, no settled criteria for quantum, uncertainty about the starting date, and difficulty in enforcement.

Held. Five directions, made under article 142.

1. Overlapping jurisdiction. Where successive claims are made under different statutes, the Court is to consider an adjustment or set-off of what was awarded earlier; the applicant must disclose the earlier proceeding and the orders in it; and any modification of an earlier order must be sought in that same proceeding.
2. Affidavit of Disclosure of Assets and Liabilities in the annexed form is to be filed by both parties in all maintenance proceedings throughout the country, including pending ones.
3. Quantum is to be determined on the criteria set out in the judgment, which are not exhaustive.
4. Maintenance in all cases is to be awarded from the date of filing the application.
5. Enforcement. An order may be enforced under section 28A of the Hindu Marriage Act, section 20(6) of the Protection of Women from Domestic Violence Act, and section 128 of the Code, and may be enforced as a money decree of a civil court under the Code of Civil Procedure.

Why it matters. It answers the two questions students are asked directly: from what date, and how enforced.

A worked example

Sunita is turned out of her husband Mahesh's house in Ulhasnagar. She has no income. Mahesh runs a shop and lives now in Surat.

Where does she apply? In Ulhasnagar, under section 145(1)(b), because she resides there, or under clause (c), because that is where they last resided together. She need not follow him to Surat.

Before whom? A Judicial Magistrate of the first class, section 144(1).

What does she have to prove? That Mahesh has sufficient means, that he has neglected or refused to maintain her, and that she is unable to maintain herself.

Can she get anything before the case is decided? Yes. Under the second proviso to section 144(1) the Magistrate may order interim maintenance and the expenses of the proceeding, and the third proviso says the application should as far as possible be disposed of within sixty days of service of notice.

What must both sides file? The Affidavit of Disclosure of Assets and Liabilities, under Rajnesh v. Neha, direction (b).

From what date will the allowance run? From the date of the application, following Rajnesh direction (d), which section 144(2) permits.

Mahesh offers to take her back. She refuses. He says that ends her claim under section 144(4). It does not, if the refusal is with sufficient reason. She proves that he has married another woman. The Explanation to section 144(3) makes that just ground for refusing to live with him, so the Magistrate may make the order notwithstanding his offer.

Mahesh pays nothing for four months. Sunita applies to levy. The Magistrate may issue a warrant for each breach in the manner provided for levying fines, and may sentence him to imprisonment up to one month for each month's unpaid allowance, or until payment. But she must apply within one year of each amount falling due, first proviso to section 144(3).

Mahesh moves to Nagpur. The order may be enforced by any Magistrate in the place where he is, under section 147, on that Magistrate being satisfied as to identity and non-payment.

Mahesh's shop fails. He may apply under section 146 to alter the allowance on proof of a change in circumstances.

Distinctions

What this does NOT mean

Section 144 does not decide matrimonial rights. It is a summary remedy against destitution, and a civil court's decision may later require the order to be varied or cancelled under section 146.

A divorced wife is not outside it. The Explanation to section 144(1) puts her inside, and Shah Bano is the authority.

Imprisonment under section 144(3) does not wipe out the arrears. It is a mode of enforcement, and the liability survives.

And a husband cannot claim. Clause (a) speaks only of a wife, which is one of the standing criticisms of the section.

Quick revision

• Section 144(1): sufficient means, plus neglect or refusal, plus a claimant in clauses (a) to (d), before a Judicial Magistrate of the first class.
• Explanation to 144(1): "wife" includes a divorced woman who has not remarried.
• Provisos: father of a married female child until majority where her husband lacks means; interim maintenance and expenses; interim application to be disposed of as far as possible within sixty days of service.
• Section 144(2): payable from the date of the order or, if so ordered, from the date of the application. Rajnesh directs the date of the application in all cases.
• Section 144(3): warrant as for fines; imprisonment up to one month for each month unpaid, or until payment; application to levy within one year; an offer to maintain does not defeat the claim where refusal is on just ground, and a second marriage or a mistress is just ground.
• Section 144(4) and (5): adultery, refusal without sufficient reason, or separation by mutual consent disentitle, and an existing order shall be cancelled on proof.
• Section 145: four places of proceeding, including where the father or mother resides; evidence in the presence of the person or his advocate, in summons-case manner; ex parte on wilful avoidance, set aside for good cause within three months.
• Section 146: alteration on proof of a change in circumstances; cancellation or variation where a competent Civil Court's decision requires it; mandatory cancellation for a divorced woman who remarries, who has received the whole sum payable on divorce under customary or personal law, or who voluntarily surrendered her rights; and a Civil Court decreeing maintenance or dowry must give credit for what has been paid.
• Section 147: a free copy to the person in whose favour it is made, or to his guardian; enforceable by any Magistrate wherever the person is, on satisfaction as to identity and non-payment.
• Shah Bano: personal law does not oust the section. Rajnesh v. Neha: disclosure affidavits, criteria for quantum, maintenance from the date of application, and the routes for enforcement.

Test yourself

1. Before which Magistrate does an application under section 144 lie? A Magistrate of the first class, and it is a Judicial Magistrate, because the function involves taking evidence and can end in imprisonment.

2. Is a divorced woman a "wife" for this Chapter? Yes. The Explanation to section 144(1) includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

3. From what date is maintenance awarded? Section 144(2) allows the date of the order or, if so ordered, the date of the application. Rajnesh v. Neha directs that in all cases it be awarded from the date of filing the application.

4. A husband offers to maintain his wife if she returns. She refuses because he has taken a second wife. Can she still get maintenance? Yes. The second proviso to section 144(3) lets the Magistrate consider her grounds of refusal, and the Explanation to that sub-section makes a second marriage or a kept mistress just ground for refusing to live with him.

5. Within what time must an application to levy arrears be made? Within one year from the date on which the amount became due, first proviso to section 144(3).

6. What is the maximum imprisonment for failing to pay? Up to one month for each month's allowance remaining unpaid after execution of the warrant, or until payment if sooner made.

7. State any two of the five directions in Rajnesh v. Neha. Both parties must file an Affidavit of Disclosure of Assets and Liabilities in all maintenance proceedings, including pending ones; and maintenance in all cases is to be awarded from the date of filing the application. The others concern set-off and disclosure where claims are made under several statutes, the criteria for quantum, and the routes for enforcement.