Maintenance under Section 144 BNSS in Ghaziabad: what the court orders and how the paying spouse is heard

The provision

Section 144 BNSS, which replaced Section 125 CrPC on 1 July 2024. Wife, children and parents can apply.

Where

Family Court, District Court complex, RDC, Ghaziabad.

What both sides file

The affidavit of assets, income and liabilities required by Rajnesh v. Neha, with ITRs, salary slips and bank statements.

Chamber

Chamber 817, District Court Complex, Raj Nagar District Centre (RDC), Ghaziabad, Uttar Pradesh 201002. Monday to Saturday, 9 am to 9 pm.

Maintenance is the claim that runs alongside almost every matrimonial dispute in Ghaziabad, and often outlasts it. It is decided on paper more than on argument: what each spouse earns, owns and owes, and what the marriage cost to live. This page explains the application under Section 144 of the Bharatiya Nagarik Suraksha Sanhita, the old Section 125 CrPC, as it runs at the Family Court, Ghaziabad, for the spouse who claims and for the spouse who pays. It belongs to the divorce at the Family Court guide, where contested divorce, custody and the other claims are set out.

Who can claim, and from whom

Section 144 BNSS lets a wife who cannot maintain herself, a child, legitimate or not, who cannot maintain itself, and a parent who cannot, claim a monthly allowance from a person with sufficient means who has neglected or refused to maintain them. A divorced wife who has not remarried remains a wife for this purpose. The claim is a summary one, meant to prevent destitution, and is independent of who is at fault in the marriage. A husband cannot claim under Section 144; his claim, if any, is under the Hindu Marriage Act.

Under Section 144(4) and (5) the court refuses or cancels the order where the wife is living in adultery, refuses without sufficient reason to live with her husband, or where the spouses live apart by mutual consent. Those defences are pleaded and proved; they are not assumed from the fact of a separation.

Interim maintenance and the expenses of the case

Because a final order takes time, the court can grant interim maintenance and the expenses of the proceeding while the application is pending, and the statute directs that the interim application be decided within sixty days of service as far as possible. In practice at Ghaziabad the interim order is the one that matters for the first year or more, so the first hearing is prepared as though it were the trial.

The Rajnesh v. Neha affidavit

In Rajnesh v. Neha, (2021) 2 SCC 324, the Supreme Court made the maintenance case a disclosure case. Both parties must file an affidavit of assets, income and liabilities in the form annexed to the judgment, at the start, and the court may draw an adverse inference from a false or evasive one. The affidavit covers salary and business income, the last three years' income tax returns, bank accounts, immovable and movable property, loans and liabilities, the standard of living, and the expenses of the children. Salary slips, Form 16, ITRs, bank statements and property papers go in as annexures.

The judgment also settled three things that decide most Ghaziabad applications. Maintenance is awarded from the date of the application. Where maintenance has been claimed under more than one law, each application must disclose the others and the court adjusts the amounts so that there is no double payment. And the amount is fixed on the criteria the court listed: the status of the parties, the reasonable needs of the wife and children, the applicant's own income and education, the respondent's actual income and liabilities, and the length of the marriage.

For the claiming spouse

The application is won on the respondent's income, which the respondent will understate. Collect what shows it: salary slips or an appointment letter, ITRs if any were filed jointly or came to hand, bank statements, the papers of a business or a shop, vehicle registrations, property in the family's name, the school fees and rent that were paid during the marriage. Where the husband hides income the court can summon records from the employer, the bank or the income tax department. A claim for the children is made in the same application and is rarely refused on the ground that the mother earns.

For the paying spouse

The paying spouse is heard on exactly the same material, and loses the case by not filing it. A husband who files an honest affidavit with his ITRs, his loan statements and the maintenance he already pays for his parents is in a far stronger position than one who claims to be unemployed while the family runs a shop. The court looks at actual income, not the figure on a salary certificate obtained for the case. Where the wife is earning, her affidavit and bank statements are called for and her income weighed. Where the wife has left without reason or the parties live apart by consent, that is pleaded with the evidence for it. And where an interim order has become unpayable because of a job loss or illness, the remedy is an application to alter it, with the proof, not default.

The other maintenance claims that run alongside

• Section 24, Hindu Marriage Act. Maintenance pendente lite and litigation expenses while a divorce or restitution petition is pending in the Family Court; available to either spouse.
• Section 25, Hindu Marriage Act. Permanent alimony at or after the decree of divorce, as a lump sum or a monthly sum, again for either spouse.
• Domestic Violence Act, 2005. Monetary relief and compensation in a complaint before the Magistrate, which can include maintenance, and which the Rajnesh disclosure rules apply to as well.

A wife in Ghaziabad is often advised to file all three. The court allows it, but under Rajnesh each must disclose the others and the amounts are set off, so the total is the same and the paying spouse should insist on the set-off being recorded.

Enforcement of the order

An order under Section 144 is enforced by the Family Court. For non-payment the court can issue a warrant for the arrears and, for each month of default, order imprisonment of up to one month under Section 144(3). An application to recover arrears must be made within a year of their falling due unless the court allows a later one. The order can also be executed against salary through the employer. The other side of the same coin: a paying spouse who is behind should apply to the court before the warrant, with the reason and a proposal.

How maintenance ends in a settlement

Most Ghaziabad maintenance disputes end in a settlement rather than a final order, because both spouses want the marriage closed. In a mutual consent divorce the settlement folds every maintenance claim into one permanent alimony figure, paid in stages tied to the first and second motions, and records that the Section 144, Section 24 and DV Act applications are withdrawn. The Family Court records the settlement and the orders follow it. Written that way, the settlement ends the claim; written loosely, it leaves a Section 144 order alive after the decree.

The affidavit, the disclosure and the set-off are the whole of this case. A spouse on either side who brings the papers listed in the documents checklist to the first meeting is halfway to an order the court will accept. The rest of the Family Court's work, contested divorce, custody and the claims that travel with them, is on the divorce at the Family Court page.

Read next

• Mutual divorce or contested divorce: time, cost, evidence and outcome
• Police calling you for a matrimonial dispute in Ghaziabad: what to do before the FIR
• The cooling-off period waiver in the Ghaziabad Family Court

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