What is the process for filing a Maintenance in India?

Maintenance laws in India are a crucial mechanism to ensure financial support for dependents who are unable to sustain themselves. Whether it's a wife, child, or parent, these provisions aim to prevent destitution and uphold a reasonable standard of living. This article for the BharatLaw audience provides a detailed overview of the process of filing a maintenance petition in India, incorporating recent judicial pronouncements and the profound impact of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) and significant amendments to the Hindu Marriage Act, 1955 (HMA).

Understanding Maintenance in India: The Evolving Legal Framework

In India, the right to claim maintenance is enshrined in various statutes. While the foundational laws remain, their application has been profoundly refined by significant judicial interpretations and, most recently, by the enactment of the BNSS and major reforms to the HMA, making it a highly nuanced and evolving area of law as of July 2025. The primary laws governing maintenance include:

1. Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS): Section 144

   This new provision replaced Section 125 of the Code of Criminal Procedure, 1973, effective from July 1, 2024. BNSS Section 144 continues to be a secular and widely used provision, applicable to all individuals irrespective of religion. It provides for a summary procedure for obtaining maintenance for:

   • Any person who is unable to maintain himself.

   • His wife, who is unable to maintain herself.

   • His legitimate or illegitimate minor child, whether married or not, who is unable to maintain itself.

   • His legitimate or illegitimate child (not being a married daughter), who has attained majority, where such child is, by reason of any physical or mental abnormality or injury, unable to maintain itself.

   • His father or mother, who is unable to maintain himself or herself.

   This ensures continuity of the summary maintenance provision. Recent Supreme Court pronouncements (even those prior to BNSS coming into force, like Rajnesh v. Neha, will likely continue to guide interpretation under BNSS Section 144) have reaffirmed that this provision is applicable to all women, including divorced Muslim women, and that the Muslim Women (Protection of Rights on Divorce) Act, 1986, does not override this secular law. This ensures that Muslim women have the option to seek remedies under either or both laws. Importantly, BNSS Section 144 introduces strict disposal timelines, aiming for interim orders within 60 days.

2. Hindu Marriage Act, 1955 (HMA): Sections 24 and 25 (with 2025 Reforms) Applicable to Hindus, this Act provides for maintenance pendente lite (interim maintenance during the proceedings) under Section 24 and permanent alimony and maintenance under Section 25. Both husband and wife can claim maintenance under this Act. The 2025 amendments to the HMA have brought significant changes:

   • Divorce Grounds Expansion: "Irretrievable breakdown of marriage" is now a codified ground for divorce if spouses have lived apart for at least one year and reconciliation is impossible. The law also formally allows for "no-fault divorce."

   • Revised Cruelty Definition: The statutory definition of "cruelty" now explicitly includes economic abuse, social isolation, digital harassment (e.g., cyberstalking), and mental/emotional cruelty. Denial of maintenance to a financially dependent spouse can also constitute cruelty.

   • Gender-Neutral Adultery: Adultery is now a gender-neutral ground; either spouse can file for divorce on this basis with equal standing.

   • Reduced Desertion Period: The minimum period for desertion has been reduced from two years to one year.

   • Broader Mental Disorder Ground: "Mental disorder" now covers a wider spectrum, including major psychiatric illnesses and serious personality disorders, making cohabitation unreasonable.

   • Religious Conversion: Conversion by one spouse without consent is explicitly a valid ground.

   • Waiver of Cooling-Off Period: The mandatory six-month "cooling-off" period for mutual consent divorce (Section 13B(2)) can now be waived by the court if the couple has been separated for over a year and all pending matters are settled, reducing delays.

   • Maintenance from Void Marriages: A significant 2025 Supreme Court ruling clarified that permanent alimony under Section 25 HMA can be granted even in cases of void marriages, provided circumstances warrant such relief. This is a vital protection for vulnerable spouses.

3. Hindu Adoptions and Maintenance Act, 1956 (HAMA): Section 18 This Act specifically deals with the maintenance of a Hindu wife, children, and aged parents. A Hindu wife can claim maintenance even while living separately from her husband, provided there are valid reasons such as desertion, cruelty, or the husband having another living wife. As of July 2025, HAMA has not seen fundamental statutory amendments, though new case law continues to clarify its application.

4. Muslim Women (Protection of Rights on Divorce) Act, 1986, and The Muslim Women (Protection of Rights on Marriage) Act, 2019 The 1986 Act governs maintenance for divorced Muslim women, typically covering the iddat period. However, as clarified by Supreme Court judgments (e.g., July 2024), Muslim women can also seek maintenance beyond the iddat period under BNSS Section 144 (previously CrPC Section 125). The 2019 Act, which criminalises triple talaq, also provides for a subsistence allowance for a divorced Muslim woman and her dependent children, allowing her to seek relief under either Section 5 of this Act or BNSS Section 144.

5. Parsi Marriage and Divorce Act, 1936, and Indian Divorce Act, 1869 These Acts govern maintenance for Parsis and Christians, respectively.

6. Special Marriage Act, 1954 This Act, applicable to inter-religious marriages and civil marriages, also contains provisions for interim and permanent maintenance. As of July 2025, the SMA has not seen fundamental statutory amendments.

7. Protection of Women from Domestic Violence Act, 2005 (DV Act) While not exclusively a maintenance law, the DV Act provides for "monetary relief" as a form of compensation for the expenses incurred and losses suffered by an aggrieved person due to domestic violence, which can specifically include maintenance for the aggrieved person and their children. This offers an additional avenue for seeking financial support.

Who Can Claim Maintenance?

The eligibility criteria vary slightly based on the specific law invoked, but generally, the following individuals can claim maintenance:

• Wife: A wife (including a divorced wife who has not remarried and is unable to maintain herself) can claim maintenance from her husband.

• Children: Legitimate or illegitimate minor children can claim maintenance from their parents. In some cases, major children who are unable to maintain themselves due to physical or mental abnormality or injury may also claim maintenance.

• Parents: Parents who are unable to maintain themselves can claim maintenance from their children.

Crucially, for a maintenance claim to be successful, the claimant must generally demonstrate an inability to maintain themselves, and the person from whom maintenance is sought must have sufficient means to provide such support.

The Process of Filing a Maintenance Petition: A Step-by-Step Guide

Filing a maintenance petition involves several crucial steps. While the exact procedure might vary slightly depending on the court and the specific law under which the petition is filed, the general outline, heavily influenced by the Rajnesh v. Neha (2020) Supreme Court guidelines, remains consistent:

Step 1: Choosing the Right Forum

The first critical step is to identify the appropriate court.

• Family Courts: These courts are specifically established to deal with matrimonial disputes, including maintenance. They aim for a more informal and conciliatory approach. They have jurisdiction over petitions under the HMA, HAMA, the Special Marriage Act, and the DV Act.

• Judicial Magistrate First Class (JMFC) / Metropolitan Magistrate: For petitions under BNSS Section 144, the application can be filed before a Judicial Magistrate First Class or Metropolitan Magistrate.

• Civil Courts: In some specific cases, particularly those not falling squarely under Family Court jurisdiction or linked to other civil suits, a civil court with competent jurisdiction may be approached.

The jurisdiction for filing can be:

• Where the respondent (person from whom maintenance is sought) resides.

• Where the applicant (person seeking maintenance) resides.

• Where the parties last resided together as a couple.

Step 2: Drafting the Petition and Mandatory Financial Disclosure

This is a crucial step and typically requires the assistance of a lawyer. The petition must be meticulously drafted and should include:

• Identification of Parties: Full names, addresses, and relationship of the applicant and the respondent.

• Jurisdiction: A clear statement establishing the court's jurisdiction.

• Marriage Details (if applicable): Date and place of marriage, details of children (if any).

• Grounds for Maintenance: Detailed reasons why maintenance is being sought. This could include desertion, cruelty, neglect, inability to maintain oneself, and the respondent's refusal to provide support despite having sufficient means.

• Mandatory Financial Disclosures (as per Rajnesh v. Neha): This is a critical aspect. Both the applicant and the respondent are now mandated to file a comprehensive Affidavit of Disclosure of Assets and Liabilities in a standardized format prescribed by the Supreme Court. This affidavit must include:

  • Details of income from all sources (salary, business, rent, investments, etc.).

  • Details of movable and immovable properties.

  • Bank account details, investments, and other financial instruments.

  • Details of liabilities, loans, and expenditures.

  • Income Tax Returns (ITRs) and assessment orders.

  • Any other relevant financial documents. This aims to ensure transparency, prevent suppression of income, and streamline the process of determining maintenance.

• Amount of Maintenance Sought: The specific amount of monthly or lump-sum maintenance being claimed, along with a justification for the same, considering the standard of living during the marriage and the needs of the applicant.

• Interim Maintenance Plea: A prayer for interim maintenance (pendente lite) to cover immediate expenses during the pendency of the main petition. The Rajnesh v. Neha judgment explicitly states that maintenance, including interim maintenance, must be awarded from the date of filing the application, not from the date of the order, to prevent hardship due to legal delays.

• Supporting Documents: A list of documents to be filed along with the petition, such as:

  • Marriage certificate (if applicable)

  • Birth certificates of children (if applicable)

  • Evidence of the respondent's income and assets (salary slips, bank statements, property documents, ITRs, etc., if available).

  • Evidence of the standard of living during the marriage (photographs, bills, etc.).

  • Any other relevant documents proving neglect or inability to maintain.

Step 3: Filing the Petition

Once drafted and reviewed, the petition is filed with the appropriate court along with the necessary court fees (if any) and supporting documents. Ensure all copies are properly attested. The mandatory Affidavit of Disclosure must also be filed simultaneously or within a short period as directed by the court. Digital reforms introduced in 2025 allow for e-filing of divorce petitions and video conference hearings, making justice more accessible and efficient.

Step 4: Serving Notice to the Respondent

After the petition is filed, the court will issue a notice (summons) to the respondent, informing them of the petition and the date of the first hearing. The notice must be properly served on the respondent. If the respondent avoids service, the court may allow substituted service (e.g., via newspaper advertisement) or even proceed ex-parte in certain circumstances.

Step 5: Appearance and Reply by the Respondent with Financial Disclosure

On receiving the notice, the respondent is required to appear before the court on the specified date, usually through their lawyer. The respondent will then file a written statement or reply ("Written Statement" or "Reply Affidavit"), contesting the claims made in the petition. Crucially, the respondent must also file their Affidavit of Disclosure of Assets and Liabilities within the stipulated time, typically a maximum of four weeks, as per Rajnesh v. Neha. They may raise defenses such as the applicant's ability to maintain themselves, the absence of neglect, or valid reasons for separate living.

Step 6: Interim Maintenance Hearing

Often, a separate application for interim maintenance is filed along with the main petition. The court prioritizes hearing this application to provide immediate financial relief. Both sides present their arguments and financial affidavits. The court, after considering the prima facie case, the financial needs of the applicant, and the respondent's capacity (based on the disclosures), may pass an order for interim maintenance. This amount is now consistently awarded from the date of filing the application. BNSS Section 144 introduces a strict timeline for interim orders, aiming for disposal within 60 days.

Step 7: Evidence and Cross-Examination

After the initial pleadings and financial disclosures, the court will set dates for the recording of evidence. Both parties will lead their evidence through affidavits or by examining witnesses. They will also have the opportunity to cross-examine the witnesses presented by the opposing party. This stage is crucial for proving the claims and counter-claims, especially regarding financial means and the reasons for seeking/denying maintenance. The detailed financial affidavits serve as crucial evidence during this phase.

Step 8: Arguments

Once the evidence is closed, both parties' lawyers will present their final arguments to the court, summarizing their case, referring to the evidence led (including the financial disclosures), and citing relevant legal precedents.

Step 9: Court Order/Judgment

After hearing the arguments and considering all the evidence on record, the court will pass its order or judgment. This judgment will determine whether maintenance is to be granted, the amount of maintenance (permanent or otherwise), and from what date it is payable. The court considers various factors while determining the quantum of maintenance, as emphasized in Rajnesh v. Neha and recent Supreme Court rulings (June & July 2025):

• The status and position of the parties.

• The reasonable needs and wants of the claimant.

• The income and other property of both parties (as revealed in the affidavits). The Delhi High Court (2025) reiterated that maintenance is calculated on the basis of actual earning capacity and not on voluntary deductions like loans/insurance taken to minimize disposable income.

• The number of dependents.

• The standard of living to which the claimant was accustomed. Maintenance should preserve the dependent spouse’s lifestyle stability, not merely subsistence.

• The conduct of the parties.

• The claimant's ability to earn or self-sufficiency, but also noting that if a wife is educated and qualified, she should strive to be self-reliant, while acknowledging the need for sufficient maintenance until she can do so.

• Inflation rates and high costs of living. In a July 2025 Supreme Court case, a 5% increase in permanent alimony every two years was ordered, setting a precedent for periodic increases.

Step 10: Execution of the Order

If the maintenance order is passed in favor of the applicant, and the respondent fails to comply, the applicant can file an execution petition to enforce the order. The court can then issue warrants for attachment of property or even civil imprisonment of the defaulter in certain cases.

Key Considerations and Recent Developments

• BNSS Section 144: The implementation of the BNSS in July 2024, replacing CrPC Section 125, signifies a significant legislative update. While the core intent and scope of the maintenance provision remain largely similar, it introduces strict disposal timelines (e.g., 60 days for interim orders).

• Major Hindu Marriage Act Reforms (2025): The HMA has been significantly amended to include irretrievable breakdown and no-fault divorce as grounds, expand the definition of cruelty (including economic and digital abuse), make adultery gender-neutral, reduce the desertion period, and broaden mental disorder grounds. The waiver of the cooling-off period for mutual consent divorce is also a key procedural reform.

• Mandatory Financial Disclosure (Rajnesh v. Neha): This remains the most significant procedural change. The Supreme Court's standardized format for affidavits of assets and liabilities is compulsory for both parties, aiming to expedite decisions and reduce litigation.

• Maintenance from Date of Application: As per Rajnesh v. Neha, interim and permanent maintenance, unless otherwise directed for specific reasons, is to be awarded from the date the application for maintenance was filed.

• Adjustment of Maintenance under Different Statutes: If a party seeks maintenance under multiple statutes (e.g., BNSS Section 144, HMA 24/25, DV Act), the court will take into account the amount awarded in one proceeding to avoid duplication and ensure a just outcome. It is mandatory for the applicant to disclose all previous maintenance proceedings. Courts have clarified that parties cannot receive double benefits for the same period.

• Earning Capacity vs. Actual Earning: The Delhi High Court (2025) has emphasized that maintenance is calculated based on actual earning capacity, not on voluntary deductions.

• Lifestyle Preservation and Periodic Increases in Alimony: Recent Supreme Court decisions (June & July 2025) reinforced that maintenance should preserve the dependent spouse’s lifestyle stability, not merely subsistence. A 5% increase in permanent alimony every two years has been ordered in a notable July 2025 case, indicating a trend towards accounting for inflation and rising costs.

• Procedural and Access Reforms: Courts now actively encourage or require mediation before adversarial proceedings. The introduction of e-filing and video conference hearings allows for more accessible and efficient justice.

• Validity of Hindu Marriage: In May 2024, the Supreme Court reaffirmed that no Hindu marriage is valid without a proper traditional ceremony (e.g., saptapadi)—mere registration/statutory declaration is insufficient. This has consequences for those in live-in or informal relationships claiming matrimonial rights without performing stated rites.

• Maintenance for Void Marriages: A 2025 Supreme Court ruling clarified that permanent alimony under Section 25 HMA can be granted even in cases of void marriages, provided circumstances warrant such relief, protecting financially vulnerable parties.

• Recognition of Live-In Relationships: While High Courts continue to clarify, and Parliament has debated, legal clarifications on maintenance rights for long-term live-ins, as of July 2025, no major statutory change has passed.

• Bigamy and Polygamy: The statutory bar on second marriages during the subsistence of a first valid marriage remains under Section 11 HMA.

Conclusion

The replacement of the Code of Criminal Procedure, 1973, with the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) and the significant 2025 amendments to the Hindu Marriage Act, 1955, are fundamental legislative and judicial updates in Indian family and criminal law. While the core principles of maintenance and procedural safeguards (like mandatory financial disclosures and maintenance from the date of application) remain central, legal practitioners and litigants must now refer to the updated provisions. These ongoing evolutions in law underscore the need for vigilance and expert legal counsel to navigate the complexities and ensure that rights to financial support are effectively upheld in India.