Maintenance under Section 125 CrPC and Section 144 BNSS: a complete Delhi guide

Short answer. Section 125 of the Code of Criminal Procedure, 1973, gives a wife, minor children, adult children with disability, and aged parents the right to maintenance from a person of sufficient means who neglects or refuses to maintain them. With the new code — the Bharatiya Nagarik Suraksha Sanhita, 2023 — the same right is now carried forward as Section 144 BNSS for cases filed after its commencement. The substance of the right is essentially the same; the procedural and filing framework tracks the old CrPC scheme closely.

This guide explains the provision in plain terms — who can claim, what must be shown, how quantum is assessed, how a case moves through Delhi's family courts, and what execution looks like if the other side does not pay. It also addresses the transition question clients keep asking: "My case was filed in 2023 under Section 125 CrPC — does BNSS apply now?"

What the provision does

Section 125 CrPC (and now Section 144 BNSS) creates a summary remedy for maintenance. Its purpose is not to adjudicate divorce or decide who is right in the marital dispute; it is to prevent destitution and to ensure that a person with means supports those who have a legal claim to be maintained. The proceeding is criminal in form but welfare-driven in substance. It is usually filed by a wife, a child, or an aged parent, and is heard by the Family Court or, where there is no family court, by the Magistrate designated for this purpose.

Who can claim

• A wife who is unable to maintain herself. The definition of "wife" includes a woman who has been divorced by, or has obtained divorce from, her husband and has not remarried.
• Legitimate or illegitimate minor children — male or female — who are unable to maintain themselves.
• Legitimate or illegitimate adult children, where the child is unable to maintain themselves because of a physical or mental abnormality or injury.
• Aged parents — father or mother — who are unable to maintain themselves.

A wife is not entitled if she is living in adultery, or if without sufficient reason she refuses to live with the husband, or if they are living separately by mutual consent. These limitations are tightly defined and are not established by mere allegation.

What must be shown

The claimant must establish three essentials:

• The respondent is a "person of sufficient means" — that is, the respondent has the capacity (actual or potential) to support the claimant.
• The respondent has neglected or refused to maintain the claimant.
• The claimant is unable to maintain herself/himself.

"Sufficient means" is assessed with regard to real earning capacity, not just declared income. If the respondent is an able-bodied person of working age but claims to have no income, courts will often examine what income he could reasonably be earning. "Unable to maintain oneself" is read in the light of the standard of living during the marriage or the household, not a bare subsistence floor.

Income disclosure: the Rajnesh v. Neha affidavit framework

The Supreme Court's decision in Rajnesh v. Neha transformed maintenance proceedings in India. The Court directed that in every maintenance case — whether under Section 125 CrPC, the Hindu Marriage Act, the Hindu Adoptions and Maintenance Act, the Protection of Women from Domestic Violence Act, or the Special Marriage Act — both parties must file a standardised affidavit of disclosure of assets and liabilities.

The affidavit requires disclosure of:

• Salary, business income, rental income, and other streams — supported by ITRs, Form 16, bank statements, and salary slips.
• Movable and immovable assets — including investments, vehicles, jewellery, and shareholdings.
• Monthly outgoings — rent, utilities, education, medical, and existing loan EMIs.
• Liabilities — loans, guarantees, and credit card debts.
• Dependants and any existing maintenance obligations.

This framework has tightened the assessment of quantum significantly. It is no longer sufficient for a husband to say "I earn ₹50,000 a month" if his ITR, bank statements, and lifestyle tell a different story. Under-disclosure carries serious consequences: courts can draw adverse inferences, direct further enquiry, and in appropriate cases, initiate proceedings for perjury.

Quantum: how much maintenance is awarded

There is no rigid formula. Courts take into account:

• The respondent's income, earning capacity, and assets.
• The claimant's own income, if any, and her or his earning capacity.
• The standard of living during the marriage or household — not just survival needs.
• The claimant's reasonable expenses: accommodation, food, clothing, medical, education for children, transport, and dignity-preserving items.
• The number of dependants and existing obligations.
• The respondent's own reasonable expenses — he is not expected to be left destitute either.

Family courts in Delhi increasingly look closely at the lifestyle evidence — credit card statements, foreign travel, school fees paid for children, purchases, social media — to assess real standard of living when affidavit disclosures appear understated. Maintenance is intended to approximate, so far as reasonable, the life the claimant enjoyed before the marriage broke down, subject to the respondent's capacity.

Interim versus final maintenance

Courts are empowered to grant interim maintenance — that is, a monthly amount pending final disposal of the petition — and litigation expenses. Interim relief is a critical protection because final orders can take a year or more. A properly drafted petition with the Rajnesh affidavit annexed, and a targeted interim application, can usually secure interim maintenance within a few months. Interim maintenance is not a small amount — courts treat it seriously and set it at a level the claimant can actually live on.

Final maintenance is decided after both parties have been heard, evidence has been led, and cross-examination is complete. It may be varied upwards or downwards by a subsequent application if circumstances change materially — for instance, a substantial change in either party's income, remarriage of the claimant wife, or a change in custody of children.

Filing in Delhi: jurisdiction and forum

A maintenance petition in Delhi can ordinarily be filed where:

• The respondent resides, or
• The claimant resides, or
• The respondent last resided with the claimant (or the mother of the child in the case of a child's claim).

Delhi has several family courts: Saket (for South and South-East Delhi), Patiala House (for the New Delhi district), Dwarka (for South-West Delhi), Karkardooma (for East Delhi), and Rohini (for North-West Delhi). Forum selection is made at the drafting stage based on where the parties reside and where they last cohabited.

What happens after filing

The procedure in Delhi family courts typically moves through these stages:

• Filing and notice. The petition is filed along with the income affidavit, the interim application, and supporting documents. The court issues notice to the respondent.
• Appearance and response. The respondent appears and files a reply along with his own Rajnesh affidavit and supporting financials.
• Interim maintenance hearing. The court considers both affidavits and material on record and passes an interim order — often within a few dates of appearance.
• Evidence stage. The petitioner leads evidence first, followed by the respondent, with cross-examination at each stage.
• Final arguments and order. The court passes a final order fixing the amount of monthly maintenance and addressing arrears, if any.

Execution: what if the respondent does not pay

A maintenance order is an order of a criminal court and has its own robust execution mechanism. If monthly amounts are not paid, the claimant can move an execution application. The court can:

• Issue a warrant for the levy of the amount in the manner provided for fines.
• Sentence the respondent to imprisonment for a term that can extend up to one month — for each month of default — until payment is made.
• Attach and sell movable property, direct attachment of salary in the hands of the employer, or direct the employer or the bank to remit amounts.

In practice, attachment of salary at source and direct bank remittance are often the most effective. For self-employed respondents whose income is less visible, attachment of specific assets, vehicles, and bank accounts — with a proper evidentiary base — is the typical route.

BNSS transition: what about cases filed before July 2024?

This is the question that has been generating the most anxiety in ongoing matters. The general principle, reflected in the savings provisions of the new codes, is that proceedings instituted before the commencement of the BNSS continue under the CrPC as if the new code had not come into force. New matters filed after the commencement date are filed under the BNSS.

In practical terms:

• If your maintenance petition was filed under Section 125 CrPC in 2022, 2023, or early 2024, it continues under that section and under CrPC procedure. Orders already passed remain orders under Section 125 CrPC, fully enforceable.
• If you file a fresh maintenance petition today, it is filed under Section 144 BNSS, and BNSS procedure applies.
• The substantive right to maintenance is essentially unchanged. Section 144 BNSS carries forward the scheme of Section 125 CrPC, including the categories of claimants and the three core conditions.

For practical search purposes — and because these matters frequently cross-refer to each other — think of the two provisions as substantively the same right, just with different statutory labels depending on when the case began.

Common strategic questions

Can a working wife claim maintenance?

Yes. The fact that a wife has some income of her own does not automatically disentitle her to maintenance. The court will look at whether her income is sufficient to maintain her at the standard of living she enjoyed in the marriage. If there is a significant gap between her income and the marital standard of living, maintenance can still be awarded — calibrated to close that gap.

Can maintenance be claimed while a divorce case is pending?

Yes — and this is the most common scenario. Maintenance under Section 125 CrPC (or 144 BNSS) runs in parallel with any divorce or other matrimonial proceeding. Separately, Section 24 of the Hindu Marriage Act allows maintenance pendente lite and litigation expenses from the matrimonial court itself. Claimants often invoke both.

Is maintenance under Section 125 / Section 144 BNSS the same as "alimony"?

The word "alimony" is commonly used but has no precise statutory definition in Indian law. It loosely covers any payment by one spouse to the other arising out of marital breakdown — whether as monthly maintenance, permanent alimony on divorce under Section 25 HMA, or a lump-sum settlement. Section 125 CrPC / Section 144 BNSS is one — very important — source of that obligation, but not the only one.

What if the husband conceals income or shifts assets to family members?

This is addressed at two levels. First, in the Rajnesh affidavit framework itself, false or incomplete disclosure exposes the respondent to adverse inferences and, in serious cases, prosecution. Second, evidence of concealment — unexplained lifestyle, unreported business interests, benami holdings — can be placed on record to persuade the court to assess quantum on the basis of real rather than declared income. Courts have increasingly been willing to impute higher earnings where disclosure is demonstrably incomplete.

Practical preparation before filing

• Gather bank statements (yours and, where lawfully accessible, joint accounts) for the last 2–3 years.
• Keep evidence of standard of living during the marriage — photographs, foreign travel records, vehicle registrations, club memberships, children's school fee receipts.
• Retain copies of your own ITRs and Form 16s (if employed).
• Note the specific instances of neglect or refusal to maintain: dates, WhatsApp messages, emails, and witness support where available.
• If children are involved, prepare a separate tabulation of their monthly expenses — school, coaching, medical, clothing, hobbies.