Quick answer
Yes. Under Section 144 of the B.N.S.S. (old Section 125 CrPC), a Magistrate of the first class may order a person with sufficient means who neglects or refuses to maintain his wife, unable to maintain herself, to pay a monthly allowance. The Explanation to Section 144(1) says "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. The order can be cancelled if she remarries or in the other situations listed in Section 146(3).
The law
Section 144 B.N.S.S. covers four groups of dependants: a wife unable to maintain herself; a legitimate or illegitimate child, married or not, unable to maintain itself; a child (other than a married daughter) who has attained majority and is unable to maintain itself because of physical or mental abnormality or injury; and a father or mother unable to maintain himself or herself. The remedy is quick and summary, and it is not a punishment for a crime; it aims to prevent destitution.
Essential points
- Sufficient means and neglect or refusal: both must be proved against the person who is to pay.
- Interim maintenance: the Magistrate may order interim maintenance and expenses while the case is pending; such an application should, as far as possible, be decided within 60 days of service of notice.
- From when: payable from the date of the order or, if so ordered, from the date of the application (Section 144(2)).
- Bars that do not reach a divorced wife: Section 144(4) denies maintenance to a wife who is living in adultery, refuses without sufficient reason to live with her husband, or lives separately by mutual consent. In Vanamala v. H.M. Ranganatha Bhatta (1995), the Supreme Court held that the same bars in Section 125(4) CrPC do not apply to a divorced woman, even one divorced by mutual consent, because after divorce there is no marriage to which they can attach.
- Divorced wife (Section 146(3)): the order is cancelled if she remarries; if she has received the whole sum payable on divorce under the customary or personal law applicable to the parties; or if she voluntarily surrendered her maintenance rights after divorce.
- Enforcement: unpaid amounts can be levied like a fine, with imprisonment of up to one month for each month's default if still unpaid; recovery must be sought within one year of the amount falling due (Section 144(3)).
Old law and new law
| Topic | CrPC, 1973 (old) | B.N.S.S. |
|---|---|---|
| Order for maintenance | Section 125 | Section 144 |
| Procedure | Section 126 | Section 145 |
| Alteration and cancellation | Section 127 | Section 146 |
| Enforcement | Section 128 | Section 147 |
Leading cases
Rajnesh v. Neha, AIR 2021 SC 569, Supreme Court of India, decided 4 November 2020 (Indu Malhotra and R. Subhash Reddy, JJ.). Using Article 142, the Court directed that both parties file an Affidavit of Disclosure of Assets and Liabilities in all maintenance proceedings; that an applicant disclose earlier maintenance proceedings and that courts consider adjustment or set-off of amounts already awarded under other laws; and that maintenance be awarded from the date of the application.
Mohd. Abdul Samad v. State of Telangana, 2024 INSC 506, Supreme Court of India, decided 10 July 2024 (B.V. Nagarathna and Augustine George Masih, JJ.). Section 125 CrPC applies to all married women and to divorced women, including Muslim women divorced under Muslim law, who may use Section 125 CrPC, the Muslim Women (Protection of Rights on Divorce) Act, 1986, or both. As Section 144 B.N.S.S. reproduces Section 125 CrPC, the same reasoning should guide it. See also Mohd. Ahmed Khan v. Shah Bano Begum.
Renu was divorced two years ago, has not remarried and has no income. Her former husband earns well but pays nothing. Renu can apply under Section 144 B.N.S.S. to a Magistrate in the district where she lives, ask for interim maintenance, and file the disclosure affidavit required by Rajnesh v. Neha. If she later remarries, the order will be cancelled from the date of remarriage.
Exam point
Section 144 B.N.S.S. (old Section 125 CrPC) is the maintenance provision; its Explanation treats a divorced woman who has not remarried as a "wife". Do not confuse it with old Section 144 CrPC, which is now Section 163 B.N.S.S.
