Ensuring Family Welfare

The Bharatiya Nagarik Suraksha Sanhita (BNSS) introduces a comprehensive legal framework aimed at safeguarding the rights and well-being of vulnerable individuals within families. Among its many provisions, the Order for Maintenance of Wives, Children, and Parents stands out as a critical measure designed to ensure that dependents receive financial support from those legally obligated to provide for them.

These provisions of the BNSS underscores the responsibility of individuals with sufficient means to maintain their spouses, children, and aging parents, thereby promoting social justice and family welfare.

 What can a Magistrate of the first class do if a person with sufficient means neglects or refuses to maintain his wife, child, father, or mother?

A Magistrate of the first class may order the person to make a monthly allowance for the maintenance of his wife, child, father, or mother if they are unable to maintain themselves.

 Under what conditions can a wife claim maintenance from her husband?

A wife can claim maintenance from her husband if she is unable to maintain herself and her husband has sufficient means but neglects or refuses to maintain her.

 Can a child claim maintenance from their father?

Yes, both legitimate and illegitimate children (whether married or not) can claim maintenance if they are unable to maintain themselves. This includes adult children who are unable to maintain themselves due to physical or mental abnormalities or injuries.

 What happens if a person fails to comply with a maintenance order?

If a person fails to comply with a maintenance order without sufficient cause, the Magistrate may issue a warrant for levying the amount due. The person may be sentenced to imprisonment for up to one month or until payment is made.

 Is a wife entitled to maintenance if she is living in adultery?

No, a wife is not entitled to maintenance if she is living in adultery, if she refuses to live with her husband without sufficient reason, or if they are living separately by mutual consent.

 What can a Magistrate do if a wife refuses to live with her husband, but the husband offers to maintain her?

The Magistrate may consider the grounds for the wife’s refusal and may still order maintenance if there is just ground for her refusal. For example, if the husband has married another woman or keeps a mistress, the wife’s refusal to live with him may be justified.

 Can the maintenance allowance be altered?

Yes, the Magistrate can alter the maintenance allowance if there is proof of a change in the circumstances of the person receiving or paying the maintenance.

 What happens to the maintenance order if a divorced woman remarries?

If a divorced woman remarries, the Magistrate shall cancel the maintenance order from the date of her remarriage.

 How can a maintenance order be enforced?

A copy of the maintenance order is given without payment to the person in whose favor it is made. The order can be enforced by any Magistrate in any place where the person against whom it is made resides, after verifying the identity of the parties and the non-payment of the allowance.

 Where can maintenance proceedings be initiated against a person?

Proceedings can be initiated against any person in any district where:

• The person resides,
• The person or his wife resides,
• The person last resided with his wife or with the mother of the illegitimate child, or
• The person’s father or mother resides.

 How must evidence be taken in such proceedings?

All evidence must be taken in the presence of the person against whom an order for payment of maintenance is proposed, or, if his personal attendance is dispensed with, in the presence of his advocate. The evidence must be recorded in the manner prescribed for summons-cases.

 What can the Magistrate do if the person against whom an order for payment of maintenance is proposed is avoiding service or neglecting to attend court?

If the Magistrate is satisfied that the person is willfully avoiding service or neglecting to attend court, the Magistrate may proceed to hear and determine the case ex parte (in the absence of that person). Any order made in this way may be set aside for good cause shown on an application made within three months from the date of the order. The Magistrate may also impose terms, including payment of costs, as deemed just and proper.

 What powers does the Court have regarding costs when dealing with such applications?

The Court has the power to make such orders as to costs as may be just when dealing with such applications.

 What was held in Bhagwan Dutt v. Kamla Devi, (1975) 2 SCC 386?

The Supreme Court held that the object of these provisions being to prevent vagrancy and destitution, the Magistrate has to find out as to what is required by the wife to maintain a standard of living which is neither luxurious nor penurious but is modestly consistent with the status of the family. The needs and requirements of the wife for such moderate living can be fairly determined, only if her separate income, also, is considered together with the earnings of the husband and his commitments.

 What was held in Chaturbhuj v. Sita Bai, (2008) 2 SCC 316?

The Supreme Court held that the object of maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy and destitution of a deserted wife by providing her food, clothing and shelter by a speedy remedy. It is a measure of social justice especially enacted to protect women and children, and falls within the constitutional sweep of Article 15(3), reinforced by Article 39 of the Constitution. Under the law the burden is placed in the first place upon the wife to show that the means of her husband are sufficient.

 What was held in Bhuwan Mohan Singh v. Meena, (2015) 6 SCC 353?

The Supreme Court held that the provisions for maintenance were conceived to ameliorate the agony, anguish, financial suffering of a woman who left her matrimonial home for the reasons provided in the provision so that some suitable arrangements can be made by the court and she can sustain herself and also her children if they are with her. The concept of sustenance does not necessarily mean to lead the life of an animal, feel like an unperson to be thrown away from grace and roam for her basic maintenance somewhere else.

She is entitled in law to lead a life in the similar manner as she would have lived in the house of her husband. That is where the status and strata come into play, and that is where the obligations of the husband, in case of a wife, become a prominent one. In a proceeding of this nature, the husband cannot take subterfuges to deprive her of the benefit of living with dignity.

Regard being had to the solemn pledge at the time of marriage and also in consonance with the statutory law that governs the field, it is the obligation of the husband to see that the wife does not become a destitute, a beggar. A situation is not to be maladroitly created whereunder she is compelled to resign to her fate and think of life “dust unto dust”.

It is totally impermissible. In fact, it is the sacrosanct duty to render the financial support even if the husband is required to earn money with physical labour, if he is able-bodied. There is no escape route unless there is an order from the court that the wife is not entitled to get maintenance from the husband on any legally permissible grounds.

 What was held in Shailja & Anr. v. Khobbanna, (2018) 12 SCC 199?

The Supreme Court held that merely because the wife is capable of earning, it would not be a sufficient ground to reduce the maintenance awarded by the Family Court. The Court has to determine whether the income of the wife is sufficient to enable her to maintain herself, in accordance with the lifestyle of her husband in the matrimonial home as was held in Chaturbhuj v Sita Bai, (2008) 2 SCC 316. Sustenance does not mean and cannot be allowed to mean mere survival as was held in Vipul Lakhanpal v. Smt. Pooja Sharma, 2015 SCC OnLine HP 1252.

 What was held in Sunita Kachwaha v. Anil Kachwaha, (2014) 16 SCC 715?

In this case, the wife had a postgraduate degree, and was employed as a teacher. The husband raised a contention that since the wife had sufficient income, she would not require financial assistance from the husband. The Supreme Court held that merely because the wife was earning some income, it could not be a ground to reject her claim for maintenance.

 What was held in Swapan Kumar Banerjee v. State of W.B., (2020) 19 SCC 342?

The Supreme Court held that a divorced wife, even wife who has been divorced on ground of desertion, is entitled to claim maintenance and also held that a petition for maintenance filed after divorce and remarriage of husband after a year, will make no difference because it is for wife to decide when she wants to file a petition for maintenance.

The provisions related to Order for Maintenance of Wives, Children, and Parents under the BNSS serve as a vital legal instrument in upholding the dignity and security of family members who are dependent on others for their sustenance. By imposing clear obligations on those with sufficient means, the BNSS not only reinforces the importance of familial responsibility but also provides a structured legal recourse for those who are neglected.

These provisions reflect the broader goals of the BNSS in fostering a just and compassionate society, where the rights of every individual are protected and upheld.

Muneeb Rashid Malik is an Advocate practicing before the Hon’ble Supreme Court of India, Hon’ble High Court of Delhi and Hon’ble High Court of Jammu & Kashmir and Ladakh. He is the Legal Advisor to Kashmir Uzma. He tweets @muneebmalikrash.