Section 144 BNSS Revisited: Gender Neutrality, Judicial Trends

Abstract

Section 144-147 BNSS provide for speedy, effective and inexpensive remedy against persons who neglect or refuse to maintain their dependant wives, children and parents. These provisions are, in a way, aimed at preventing starvation and vagrancy which lead to the commission of crime, and are expected to be applicable to persons irrespective of the religion to which they belong or to the personal laws applicable to them. According to Supreme Court, these provisions (earlier 125-128 CrPC) are to be treated as measures of social justice and, therefore, need to be construed liberally.

Introduction

Section 144 of Bharatiya Nagarik Suraksha Sanhita 2023 (BNSS), in India is a welfare provision designed to protect individuals who are unable to maintain themselves from destitution. It reflects the state’s commitment to ensuring social justice by obligating certain family members to provide financial support to those who are dependent on them. It establishes a legal framework for the maintenance of neglected wives, children, and parents, irrespective of their religion or personal laws. The provision is civil in nature but is housed within a criminal procedural statute, making its enforcement stricter and more accessible. This section is corresponds to Section 125 of Crpc.

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Maintenance refers to the ongoing efforts, encompassing both financial and physical aspects, that are required to preserve something in its original condition. The ongoing process commonly referred to as evolution, which encompasses the development and progress of human civilization, has undeniably resulted in a profoundly challenging predicament for women in various regions around the world. Irrespective of whether it occurs prior to or following the solemnization of marriage, it remains a prevalent issue that a significant proportion of women in India continue to face challenges in accessing essential healthcare services and receiving sufficient nourishment for their overall well-being. This situation becomes significantly more complex and challenging when a woman makes the decision to end her marriage, whether it is a voluntary choice or due to the influence and pressure exerted by her husband. In her quest for financial support to establish a solid foundation for an independent life, an abandoned lady finds herself seeking assistance. This assistance would enable her to navigate the challenges of life on her own terms, while her husband, on the other hand, focuses on tending to his own material needs. One of the primary factors contributing to this issue is the historically entrenched low social standing of women within the intricate fabric of Indian culture. In today’s society, it is often expected that women should primarily focus on their domestic responsibilities and rely solely on their husbands for financial support. This situation can often leave them with limited alternatives and few opportunities to explore their own potential and independence.

For those who are unable to pay for themselves, spouses, parents, and children may get maintenance under s. 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023, a secular law. “Mohd. Ahmed Khan v Shah Bano and Danial Latifi v Union of India are just two examples of the many cases and laws that have cast doubt on the CrPC’s breadth of coverage. Other examples include the Muslim Women (Protection of Rights on Divorce) Act, 1986, the Hindu Adoption and Maintenance Act, 1956, and the Parsi Marriage and Divorce Act, 1936.” Additionally, the strict implementation of antiquated CrPC laws has been questioned by an increasing number of live in relationships, interfaith weddings, and adoptions. The primary objective of this paper is to comprehensively comprehend and meticulously analyze the most recent judicial trends pertaining to maintenance provisions under the Bharatiya Nagarik Suraksha Sanhita.

This analysis will be conducted by focusing on two crucial parameters. Firstly, it will involve a deep understanding of the concept of live-in relationships within the context of an ever-evolving Indian society. Secondly, it will entail a thorough examination of the intricacies and nuances of Hindu and Muslim personal laws. By delving into these dimensions, this research aims to shed light on the multifaceted aspects of maintenance provisions and their implications in contemporary legal discourse. In this paper, both of these parameters are thoroughly examined and analyzed.

The primary objective of this article is to delve into a comprehensive examination of the extent to which the personal laws of India exhibit a satisfactory level of gender neutrality. Additionally, it aims to explore the various interpretations that courts have bestowed upon these laws in order to ascertain whether they have indeed granted equitable treatment to all genders.

Purpose and Objectives of Section 144 BNSS

The primary aim of Section 144 BNSS is to prevent vagrancy and destitution. It seeks to ensure that dependents, particularly vulnerable individuals such as women, children, and the elderly, have a minimum level of sustenance. The underlying principle is that the welfare of society depends on the family unit’s stability, which this provision seeks to preserve by compelling responsible members to fulfill their obligations.

Key Provisions Under Section 144 BNSS

Section 144 can be analyzed through its sub-sections, which outline the eligibility for maintenance, the procedure, and the extent of the relief granted:

1. Eligibility for Maintenance:
   o Wife: A wife who is unable to maintain herself can claim maintenance. However, the term ‘wife’ includes a legally wedded wife and excludes women in adulterous relationships or those who have remarried.
   o Children: Legitimate or illegitimate minor children (male or female) and adult children unable to maintain themselves due to physical or mental incapacity can claim maintenance.
   Parents: Elderly or infirm parents, biological or adoptive, who are unable to sustain themselves can claim maintenance from their children.

2. Quantum of Maintenance: The court determines the maintenance amount based on the claimant’s needs, the respondent’s financial capability, and the standard of living that the claimant is accustomed to.

3. Enforcement of Orders: If the respondent fails to comply with the maintenance order, the court can enforce it through methods such as attachment of property or imprisonment for up to one month or until the payment is made.

4. Modification and Cancellation: Maintenance orders can be altered or canceled upon proving a material change in circumstances, such as the claimant becoming self-sufficient or remarriage of the wife.

Judicial Interpretations and Landmark Cases

The judiciary has played a critical role in interpreting and expanding the scope of Section 125 to adapt to changing social realities.

1. Mohd. Ahmed Khan v. Shah Bano Begum (1985): This landmark judgment highlighted the applicability of Section 125 across religions. The Supreme Court held that the provision is a secular remedy for destitution and not subject to personal laws, emphasizing the overarching principle of social justice.

2. Danial Latifi v. Union of India (2001): In this case, the Court clarified that Muslim women are entitled to maintenance under Section 125 even after the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986, provided they cannot sustain themselves after receiving the mahr (dower).

3. Chaturbhuj v. Sitabai (2008): The Supreme Court reiterated that a wife who is unable to maintain herself is entitled to maintenance, irrespective of whether she has some income or not. It underscored that ‘inability to maintain oneself’ does not require complete destitution.

4. K. Sivaram v. K. Mangalamba (2022): The Court held that maintenance under Section 125 is not punitive but a measure of social justice aimed at protecting dependents.

Procedural Aspects of Filing for Maintenance

The procedure for filing a claim under Section 125 CrPC (now Section 144 BNSS) is straightforward and user-friendly to make it accessible to individuals in need:

1. Filing an Application: The aggrieved person must file an application in the jurisdictional magistrate’s court where they reside or where the respondent resides or works.

2. Evidence and Burden of Proof: The claimant must prove dependency and the inability to maintain themselves. The respondent, on the other hand, must prove their financial inability or other defenses.

3. Interim Maintenance: Courts often grant interim maintenance during the pendency of the proceedings to prevent hardship.

4. Final Order: Based on the evidence and arguments, the magistrate passes a final order specifying the quantum and frequency of maintenance payments.

Critical Analysis of Section 144 BNSS

While Section 144 BNSS serves as a vital instrument for ensuring social welfare, it has its limitations and challenges:

1. Inadequate Quantum of Maintenance: The maintenance amount often fails to reflect the actual cost of living, particularly in urban areas where expenses are high.

2. Delayed Justice: The procedural delays in adjudicating maintenance claims can exacerbate the hardships faced by dependents.

3. Gender Bias: While the provision is gender-neutral concerning parents and children, it does not recognize men as potential claimants, reinforcing traditional gender roles.

4. Enforcement Issues: Non-compliance with maintenance orders remains a persistent issue, as enforcement mechanisms are often cumbersome and ineffective.

Suggestions for Reform

To enhance the efficacy of Section 144 BNSS, the following reforms can be considered:

1. Standardized Guidelines for Maintenance: Establishing clear guidelines for calculating maintenance amounts can ensure uniformity and adequacy.

2. Expedited Proceedings: Fast-tracking maintenance cases through dedicated family courts can reduce delays and improve access to justice.

3. Expanding Eligibility: Recognizing men as potential claimants in cases of dependency or disability can make the provision more inclusive.

4. Effective Enforcement Mechanisms: Introducing measures such as garnishing wages directly from the respondent’s salary can enhance compliance.

Comparative Analysis with Other Jurisdictions

Several countries have similar provisions for maintenance but differ in their approach and implementation:

1. United States: The concept of “spousal support” or “child support” under U.S. family law includes structured guidelines for calculating amounts and robust enforcement mechanisms, including garnishment of wages.

2. United Kingdom: The UK system allows courts to issue maintenance orders as part of divorce or separation proceedings, with mechanisms to adjust payments based on changing circumstances.

3. Canada: Canadian family law emphasizes equitable distribution of financial responsibilities, with spousal support determined through a formula considering income, needs, and the standard of living.

The Emergence of Live-In Relationships and Section 144, BNSS

On September 25, 2019, the Indian Supreme Court, in a resolute manner, made a strong assertion regarding the utmost importance of maintenance as a welfare provision under the Criminal Procedure Code, 1973. One fine day, a woman accompanied by her adorable young son decided to pay a visit to the esteemed Family Court. Their purpose for being there was to officially file a petition under section 125 of the CrPC, which dealt with the matter of Pratima Devi & Anr. versus Anand Prakash. In response to the ex parte decision of the Family Court, the spouse took legal action by filing a criminal revision case with the esteemed High Court.

As a result, the court intervened and put a halt to the monthly payment of Rs. 20,000, which was previously ordered by the Family Court. The underlying reasoning behind this particular course of action was regrettably not adequately documented. According to the highest court in the land, it has been established that a husband or father bears a significant responsibility to ensure the financial well-being and support of his family. In general, it is not customary for a higher court to grant a stay on an order of this nature, unless there are truly exceptional circumstances that warrant such action.

In accordance with societal norms and expectations, it is the responsibility of individuals who find themselves in a position where they are incapable of independently meeting their own needs, such as the spouse of a husband and any dependent offspring, whether they are born within the bounds of marriage or not, to fulfill this obligation. In the event that a first-class Magistrate, after careful consideration and evaluation, determines that an individual possesses sufficient financial resources to adequately provide for their family, yet consciously decides not to fulfill this responsibility, it is within the purview of the court to issue an order mandating the payment of a specified sum on a monthly basis.

This monetary contribution is intended to ensure the provision of support to one’s spouse, children, parents, or grandparents, as stipulated under Section 125 of the Criminal Procedure Code. This particular system is utilized solely in situations where it has been clearly demonstrated that the husband has displayed negligence or a lack of willingness. The term wife refers to a female individual who has undergone a legal separation from her spouse and has refrained from entering into another marital union, as clearly elucidated in the explanatory clause (b) of the aforementioned section.

These lines emphasize the requirement for a woman to have entered into the sacred institution of marriage in order to be considered eligible for financial support and assistance. Under section 125 of the Criminal Procedure Code, 1973, may a woman who is in a live-in relationship be considered a wife for the purpose of claiming maintenance? If that’s the case, how long does a live-in relationship need to last before the courts may issue a maintenance order? Would there be a plethora of abuse and lawsuits if live-in partners were granted maintenance? This section of the study report will deal with these inquiries.

Conclusion

Section 144 BNSS embodies a crucial legal and social tool to address the issue of destitution within families. By mandating the financial responsibility of certain family members, it ensures that vulnerable individuals are not left without support. However, its limitations highlight the need for reforms to make it more inclusive, efficient, and reflective of contemporary socio-economic realities. The judiciary’s progressive interpretations have strengthened the provision’s effectiveness, but continuous legislative and administrative efforts are essential to realize its full potential as a measure of social justice.

References

• R.V. Kelkar’s, Lectures on Criminal Procedure, Based on Bharatiya Nagarik Suraksha Sanhita, EBC Publication, 7th edn. 2025.
• C. k. Takwani, Criminal Procedure, In accordance with The Bharatiya Nagarik Suraksha Sanhita, Lexis Nexis, 6th edn. 2025.
• Anita Nareshkumar Jadav, Legislative Provisions of Maintenance for Wife and Husband in India- Critical Analysis 1(1) Sarv’alokum: Law and Society- Multidisciplinary National Peer- Reviewed Journal (2024).