Maintenance After Divorce: What the Law Actually Guarantees Under Section 144 BNSS & Section 25 HMA

In Indian matrimonial disputes, few issues generate more contention, anxiety, and procedural complexity than financial maintenance and permanent alimony. Spouses entering or defending matrimonial litigation frequently operate under significant misconceptions: one side may believe maintenance is an automatic windfall guaranteeing half the other spouse’s income, while the other assumes that voluntarily resigning from employment or transferring assets to relatives will eliminate legal responsibility.

Under Indian jurisprudence, maintenance is not a punitive sanction against one spouse, nor is it an unconditional annuity. It is an affirmative statutory mechanism designed to prevent vagrancy, safeguard dependent children, and ensure that both parties maintain a standard of living reasonably commensurate with the lifestyle enjoyed during the subsistence of the marriage.

Below is a comprehensive legal analysis of maintenance laws, calculation methodologies, and statutory defenses prepared by the litigation chambers of Advocate Ajay Malik.

The Statutory Routes to Maintenance in India

Depending on the nature of the marital union, personal laws, and whether the claim is interim or permanent, maintenance can be sought under three primary statutory frameworks:

1. Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (Formerly Section 125 CrPC)

Section 144 of the BNSS provides a secular, summary remedy accessible to any dependent wife (including a divorced woman who has not remarried), minor children, physically or mentally disabled adult children, and aged parents. The primary legislative objective is social welfare and the prevention of destitution. Because it operates through criminal courts (Judicial Magistrates and Metropolitan Magistrates), compliance is secured through coercive recovery warrants and civil imprisonment for willful default.

To examine the official legislative text of statutory enactments, consult the India Code Central Legislation Portal.

2. Sections 24 and 25 of the Hindu Marriage Act, 1955

Section 24 HMA (Maintenance Pendente Lite & Litigation Expenses): Allows either spouse (husband or wife) who lacks independent income sufficient for their support to claim interim monthly maintenance and court expenses while the main divorce or restitution petition is pending.

Section 25 HMA (Permanent Alimony & Maintenance): Empowers the Family Court at the time of passing the final decree of divorce or nullity to award a gross sum or periodic monthly allowance for the applicant’s lifetime or until remarriage.

For related insights on matrimonial agreements, refer to our legal guide on What Happens When a Spouse Renegeth on Mutual Consent Divorce.

3. Sections 20 and 22 of the Protection of Women from Domestic Violence Act, 2005 (PWDVA)

Provides an additional, emergency civil avenue for an aggrieved woman living in a shared household to obtain monetary relief, medical expenses, and loss of earnings caused by acts of domestic abuse.

Watch the Video Breakdown: Maintenance & Alimony Law Explained

Watch Advocate Ajay Malik break down the courtroom calculations, income disclosure mandates, and trial defenses in this detailed video:

The Watershed Standard: Rajnesh v. Neha (Supreme Court Guidelines)

Prior to 2020, maintenance proceedings were frequently paralyzed by inaccurate financial claims and concealed incomes. In the milestone judgment of Rajnesh v. Neha (2020), followed by Aditi alias Mita v. Jitesh Sharma (2023), the Supreme Court of India transformed matrimonial trial procedure by mandating an exhaustive Affidavit of Assets and Liabilities to be filed by both parties at the initial stage.

Under this binding protocol, both spouses must formally disclose on oath:

Income tax returns (ITRs) for the preceding 3 years, along with balance sheets and audit reports.

Bank account statements for the past 3 years across all individual, joint, and corporate accounts.

Immovable assets, ancestral properties, commercial holdings, and rental revenues.

Investments in mutual funds, stocks, fixed deposits, cryptocurrencies, and jewelry.

Detailed lifestyle expenditures, club memberships, domestic and overseas travel records, school fees of children, and vehicle ownership.

Filing a false affidavit or deliberately concealing revenue streams exposes the defaulting party to immediate prosecution for perjury under Section 195 CrPC / Section 215 BNSS, alongside adverse judicial inferences regarding their true financial capacity.

Does an Educated or Earning Spouse Have a Right to Maintenance?

A recurring courtroom dispute concerns whether an educated or professionally qualified spouse is entitled to maintenance if they are capable of earning.

Settled rulings by the Delhi High Court and the Supreme Court establish the following balance:

Capability to Earn vs. Actual Earning: A spouse cannot be denied maintenance merely because they possess an educational degree (e.g., MBA, LLB, MBBS). If a spouse left the workforce to care for children or manage the domestic household, the court evaluates their actual current earnings rather than theoretical capability.

Prohibition Against Voluntary Idleness: Conversely, courts will not permit a qualified, healthy spouse to deliberately sit idle as an instrument of economic punishment against their partner. In decisions such as Damanpreet Kaur v. Indmeet Juneja, the Delhi High Court affirmed that Section 24 HMA is not designed to create an army of idle individuals awaiting financial doles when they are capable of securing employment.

Standard of Living Parity: If the earning spouse enjoys a significantly higher commercial status, the court may award supplementary maintenance to bridge the lifestyle disparity, ensuring the other spouse lives with dignity consistent with the matrimonial standard.

For related statutory defense frameworks regarding commercial disputes and financial notices, read our legal guide on How to Reply to a Cheque Bounce Legal Notice.

Statutory Grounds for Denying or Cancelling Maintenance

The law does not impose unconditional liability. Under Section 144(4) and 144(5) of the BNSS, as well as Section 25(3) of the Hindu Marriage Act, maintenance orders can be refused, reduced, or cancelled on specific legal grounds:

Living in Adultery: If clear, credible evidence establishes that the recipient spouse is living in an ongoing adulterous relationship.

Refusal to Cohabit Without Valid Reason: If a spouse abandons the matrimonial home without justifiable cause (such as proven cruelty or domestic violence) and refuses bona fide offers of cohabitation.

Remarriage: Permanent alimony under Section 25 HMA terminates upon the remarriage of the recipient spouse.

Substantial Change in Circumstances: Under Section 146 BNSS (formerly Section 127 CrPC), a material change in financial fortune—such as job loss, critical illness, or a dramatic increase in the claimant’s independent earnings—warrants a judicial modification of the awarded sum.

Child Maintenance: An Inviolable Judicial Obligation

A fundamental principle of Indian family law is that matrimonial friction between parents cannot prejudice the rights of children.

The father bears an absolute legal and moral obligation to provide maintenance, healthcare, and educational funding for his minor children commensurate with his financial status. This duty continues regardless of whether the mother is employed, earns a higher income, or if the divorce was contested. For daughters, this obligation extends until their marriage or until they attain financial independence.

Frequently Asked Questions (FAQs) Under Indian Maintenance Law

What percentage of a spouse’s salary is typically awarded as maintenance?

Indian law does not prescribe a rigid percentage formula. However, following the Supreme Court judgment in Kalyan Dey Chowdhury v. Rita Dey Chowdhury, courts often consider 25% of the paying spouse’s net disposable income as a benchmark for the dependent spouse, adjusting based on child custody, dependents, and loan liabilities.

Can a husband claim maintenance from his wife under Indian law?

Yes. Under Sections 24 and 25 of the Hindu Marriage Act, 1955, either spouse—husband or wife—can claim maintenance pendente lite and permanent alimony if they prove they lack independent income and are physically, medically, or circumstantially incapable of supporting themselves.

How quickly does a Family Court decide interim maintenance applications?

Under the third proviso to Section 144(1) BNSS, courts are directed to dispose of interim maintenance applications, as far as possible, within 60 days from the date of service of notice. In practice, delays occur due to non-filing of asset disclosure affidavits, which is why compliance under Rajnesh v. Neha is strictly enforced.

What happens if a person refuses to pay court-ordered maintenance?

If a party defaults on maintenance, the court can issue bailable and non-bailable warrants, order the attachment of bank accounts, salary garnishment, or seize immovable properties. Furthermore, under Section 144(3) BNSS, the court can sentence the defaulter to imprisonment for up to one month for each month of unpaid default.

Matrimonial Litigation Defense Across Delhi NCR Courts

Navigating maintenance litigation requires forensic analysis of balance sheets, transparent compliance with asset disclosure affidavits, and focused cross-examination before the Family Courts.

The Chambers of Advocate Ajay Malik provides trial advocacy, financial discovery, and appellate representation before the Supreme Court of India, the Delhi High Court, and all District Courts across Delhi NCR, including: