Introduction
Maintenance law in India is a study in layered complexity. Every religious community has its own personal law governing the obligation of spouses, parents, and children to support each other, enacted or inherited from pre-constitutional customary practice. Superimposed on this personal law structure is a secular framework under Section 125 of the Code of Criminal Procedure 1973, now reconstituted as Section 144 of the Bharatiya Nagarik Suraksha Sanhita 2023, which provides a summary remedy for maintenance regardless of the parties’ religion or the personal law applicable to their marriage. The coexistence of these frameworks has generated some of the most significant and contested judgments in Indian legal history, from Shah Bano (1985) to Danial Latifi (2001), and continues to generate litigation and legislative reform.
The introduction of the Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023, which came into force in July 2024, has not fundamentally altered the substantive maintenance framework but has renumbered and in some respects reorganised the procedural rules. The Uttarakhand Uniform Civil Code 2024, as the first enacted state-level UCC, has introduced maintenance provisions applicable to residents of Uttarakhand that partially override personal law distinctions. And the broader political and constitutional debate about a national Uniform Civil Code continues to cast a long shadow over maintenance jurisprudence, creating uncertainty about the long-term stability of the personal law frameworks that personal law communities have relied upon for generations.
This article traces the development of the secular maintenance framework, examines the gaps between personal laws and the Section 144 BNSS remedy, analyses the enforcement crisis that undermines maintenance orders in practice, and suggests directions for a principled reform.
Legal Framework
Section 144 of the Bharatiya Nagarik Suraksha Sanhita 2023 (formerly Section 125 CrPC 1973) provides that a Magistrate of the first class may, upon proof that a person with sufficient means has neglected or refused to maintain certain dependants, order payment of monthly maintenance. The dependants covered include the wife, legitimate and illegitimate minor children, legitimate and illegitimate major children who are unable to maintain themselves due to physical or mental abnormality, and the parents of the person. The provision expressly defines “wife” to include a woman who has been divorced by her husband or has obtained divorce from her husband and has not remarried, making it applicable to post-divorce maintenance in certain circumstances.
The personal law frameworks provide parallel mechanisms. The Hindu Adoptions and Maintenance Act 1956 (HAMA) imposes a statutory obligation on a Hindu husband to maintain his wife, and on parents to maintain their minor children. The Muslim Women (Protection of Rights on Marriage) Act 2019 (relating to triple talaq) and the Muslim Women (Protection of Rights on Divorce) Act 1986 (relating to post-divorce maintenance for Muslim women) create specific frameworks for Muslim women that intersect with and, in some respects, override the secular Section 125/144 framework. The Special Marriage Act 1954, applicable to civil marriages, provides for maintenance under Section 36 in matrimonial proceedings. The Parsi Marriage and Divorce Act 1936 and the Divorce Act 1869 (for Christians) similarly have their own maintenance provisions.
The critical question, litigated extensively since Shah Bano, is the relationship between these personal law frameworks and the secular CrPC/BNSS framework. The Supreme Court’s answer, developed over four decades of jurisprudence, is that the secular framework provides a minimum floor of protection that cannot be reduced by personal law, though it may in specific statutory contexts be supplemented or modified.
Judicial Developments
The 1985 Supreme Court decision in Mohd. Ahmad Khan v. Shah Bano Begum (commonly known as Shah Bano) is the jurisprudential origin of the modern secular maintenance framework as applied to Muslim women. A five-judge Constitution Bench held that Section 125 CrPC applied to all women, including Muslim women who had been divorced under Muslim personal law, and that the husband’s obligation under Section 125 was not displaced by the completion of the iddat period. The Court also made controversial observations about the desirability of a Uniform Civil Code, which contributed to the political controversy that the judgment generated.
The Muslim Women (Protection of Rights on Divorce) Act 1986 was enacted in response to Shah Bano, providing that a divorced Muslim woman’s entitlement to maintenance from her former husband extended only to the iddat period, and that thereafter the obligation passed to the woman’s relatives (if they were capable of meeting it) or to the Waqf Board. The Act was widely characterised as having overturned Shah Bano and as having legislatively curtailed Muslim women’s rights.
The Supreme Court’s 2001 judgment in Danial Latifi v. Union of India resolved the constitutional challenge to the 1986 Act by reading it to require that the husband make reasonable and fair provision for the divorced wife’s future maintenance during the iddat period, such that the total amount provided would be sufficient for her entire life. The Court upheld the Act’s constitutional validity but gave it an interpretation that preserved its compatibility with the right to equality, effectively ensuring that Muslim women were not materially worse off than under Section 125 CrPC.
Subsequent cases have continued to expand and clarify the secular framework. The Supreme Court in Rajnesh v. Neha (2020), a judgment of exceptional practical importance, provided comprehensive guidelines on maintenance proceedings, covering the overlapping jurisdiction of criminal and civil courts, the procedure for determining interim maintenance pending final resolution, the affidavit of assets and income to be filed by both parties, and the need to avoid conflicting orders from different forums. The Court also held that the same standard of living the wife enjoyed during the marriage was the benchmark against which maintenance should be calibrated.
In Mohd. Abdul Samad v. Mohd. Abdul Samad (2024), the Supreme Court reinforced the availability of Section 125 CrPC maintenance to Muslim women, holding that a Muslim woman could independently invoke Section 125 regardless of the 1986 Act and that both remedies co-existed, the woman being entitled to proceed under whichever provided better relief in her circumstances.
Contemporary Issues and Analysis
The most persistent structural problem in Indian maintenance law is not the substantive entitlement (which, in principle, is now relatively well-established across religious communities following the post-Shah Bano jurisprudence) but the enforcement of maintenance orders once made. The gap between a court’s order and its actual implementation is wide, and it is widened by the chronic delay in Family Court proceedings, the ease with which maintenance orders can be evaded by a resourceful debtor-spouse, and the procedural hurdles in bringing execution proceedings.
A maintenance order in India is enforced by executing it as a civil decree under Order XXI of the Code of Civil Procedure. This process is slow, expensive, and ill-suited to the regular monthly payments that maintenance contemplates. A spouse who defaults on three months of maintenance does not automatically face any consequence; the maintenance creditor must separately apply to the court for enforcement, which may take months. The alternative of criminal enforcement through Section 125(3) CrPC (now corresponding BNSS provision), under which a defaulting payer can be imprisoned for up to one month, is available but sparingly used, and imprisonment does not produce payment.
The concealment of income and assets by the maintenance payer is a related and equally serious problem. Maintenance quantum in India is typically determined on the basis of the payer’s declared income, and the courts have limited investigative powers to pierce self-serving declarations. A self-employed professional, a business owner, or a salaried individual with undisclosed cash income can present an artificially reduced picture of financial capacity. The Rajnesh v. Neha guidelines’ requirement of a detailed affidavit of assets and the penalty for false affidavits help at the margins, but do not solve the underlying information asymmetry.
The Uttarakhand Uniform Civil Code 2024 addresses maintenance for residents of Uttarakhand through provisions that apply uniformly regardless of personal law, establishing a statutory entitlement to maintenance for spouses, children, and parents. The UCC’s maintenance provisions are drafted in gender-neutral terms and apply to maintenance during and after marriage. Whether the UCC’s provisions will interact harmoniously with the BNSS Section 144 framework or will create jurisdictional confusion is a question that the courts of Uttarakhand will have to resolve in the coming years.
Comparative and International Perspective
Scotland’s approach to financial provision on divorce, set out in the Family Law (Scotland) Act 1985, is built around the “clean break” principle: courts are directed to prefer capital lump sum payments that give each party financial independence over periodic payments that perpetuate financial entanglement between former spouses. Periodic payments are permitted where necessary and are to be made for a defined period, with a default maximum of three years absent compelling circumstances. The clean break principle reflects a policy judgment that long-term dependency between divorced spouses is undesirable and that the law should encourage each party to rebuild financial independence.
India’s maintenance framework, by contrast, contemplates indefinite monthly payments with no presumption in favour of capitalisation and no clear policy preference for clean break outcomes. The result is a system of permanent financial entanglement that is perpetually litigable, susceptible to enforcement failure, and not well-suited to a world in which wives increasingly have earning capacity and cannot be assumed to be permanently economically dependent.
The Canadian approach to “spousal support” under the Divorce Act has been substantially reformed by the Spousal Support Advisory Guidelines (2008, updated 2016), which are not legally binding but are widely followed by courts and facilitate predictable, formula-based calculations of support quantum and duration. The Guidelines take into account the length of the marriage, the roles adopted during marriage, and the post-separation earning capacity of each spouse, producing outcomes that are more consistently calibrated to economic reality than the entirely discretionary Indian approach.
The English approach to financial remedy proceedings under the Matrimonial Causes Act 1973 also permits clean break orders and periodical payments orders, with a strong judicial preference in modern practice for clean break outcomes where the parties’ resources permit. The English courts have an extensive toolkit including property transfer orders, pension sharing orders, and lump sum orders that give them flexibility to achieve financial separation that Indian courts, limited to maintenance orders and the modest Section 27 property adjustment powers, do not have.
Practical and Policy Implications
The practical implications of the current framework fall most heavily on economically vulnerable women, who are the primary beneficiaries of maintenance orders and the primary victims of enforcement failure. A woman who obtains a maintenance order but cannot enforce it is in a formally better but practically identical position to a woman who has no order: she has an entitlement on paper and privation in fact.
The introduction of the BNSS 2023 has not addressed the enforcement problem, because the enforcement mechanisms available to maintenance creditors under the new code are materially identical to those under the CrPC. The opportunity presented by the comprehensive codification exercise should have been taken to introduce more effective enforcement mechanisms, including automated garnishment of salary, automatic attachment of bank accounts on default, and real-time income disclosure requirements for maintenance debtors.
For Muslim women, the post-Mohd. Abdul Samad (2024) position clarifying the concurrent availability of Section 125/144 BNSS and the 1986 Act remedies is legally clear but practically inaccessible for women who lack legal representation and are unaware of the dual-remedy position. Legal awareness and legal aid in maintenance proceedings are structural prerequisites for the secular framework to actually protect the women it is designed to protect.
Suggestions and Reforms
Parliament should amend the BNSS 2023 to introduce an automatic income withholding mechanism for maintenance payments, under which a maintenance order authorises the Magistrate to direct the employer of the maintenance payer to deduct the monthly payment from salary at source and remit it to the maintenance creditor, without any further action required from the creditor each month. This mechanism, used in the United States, Canada, and Australia, dramatically reduces enforcement failure in salary cases.
The Supreme Court’s Rajnesh v. Neha guidelines should be formally incorporated into a Practice Direction issued by the Supreme Court or into an amendment to the Family Courts (Procedure) Rules, giving them binding force rather than persuasive authority.
A Maintenance Advisory Framework, modelled on the Canadian Spousal Support Advisory Guidelines, should be developed by the Law Commission of India in consultation with Family Court judges and practitioners, providing presumptive quantum and duration tables for maintenance awards based on the length of the marriage, the parties’ income, and the economic sacrifices made by the dependent spouse during the marriage. Such a framework would not eliminate judicial discretion but would provide a principled starting point that reduces unpredictability and forum shopping.
Conclusion
The secular maintenance framework under Section 144 BNSS represents one of the most significant and contested achievements of Indian constitutional law: the extension of a minimum floor of financial protection to all women, regardless of their religious community and the personal law applicable to their marriages. The journey from Shah Bano to Danial Latifi to Rajnesh v. Neha and Mohd. Abdul Samad has been long and not without political turbulence, but it has produced a body of law that is, in principle, protective.
The failure of that law in practice, through enforcement gaps, information asymmetries, and procedural delays, is the central challenge of the next phase of maintenance law reform in India. The substantive right is established; the institutional infrastructure to make it effective is not. Building that infrastructure, through automatic enforcement mechanisms, better income disclosure requirements, and principled quantum guidelines, is the work that remains.
