Yes. If you are a wife, child or parent who satisfies the requirements of Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), a maintenance proceeding can be brought before the Family Court, Indore, where that Court has territorial jurisdiction over the matter.
Section 144 BNSS is the present provision corresponding substantially to the earlier Section 125 of the Code of Criminal Procedure, 1973. It provides a summary remedy for maintenance to certain family members who are unable to maintain themselves and where a person having sufficient means has neglected or refused to maintain them.
Why can a Section 144 BNSS case be filed before the Family Court, Indore?
The answer lies in the Family Courts Act, 1984.
Section 7 of the Family Courts Act gives a Family Court jurisdiction over proceedings for maintenance. More importantly, Section 7(2)(a) provides that a Family Court shall also exercise the jurisdiction exercisable by a Magistrate of the First Class under the provisions relating to maintenance of wives, children and parents under the old Chapter IX of the CrPC.
Section 8 further provides for exclusion of the jurisdiction of ordinary Magistrates in areas where a Family Court has been established for matters falling within the Family Court’s jurisdiction.
Therefore, where the Family Court, Indore has jurisdiction over the maintenance proceeding, the fact that Section 144 BNSS is a provision contained in the criminal procedure law does not prevent the matter from being heard by the Family Court.
Who can seek maintenance under Section 144 BNSS?
Section 144 principally provides a remedy to:
- A wife who is unable to maintain herself;
- A divorced wife who has not remarried, subject to the statutory requirements;
- A legitimate or illegitimate child who satisfies the requirements of the provision;
- A father or mother who is unable to maintain himself or herself.
The essential foundation is that the person from whom maintenance is claimed has sufficient means but has neglected or refused to maintain the person entitled to claim maintenance.
For example, a wife residing in Indore may approach the Family Court, Indore if the applicable territorial-jurisdiction requirements are fulfilled and she establishes the necessary facts regarding her marriage, inability to maintain herself, the husband’s means and his neglect or refusal to maintain her.
Can a wife living in Indore file a maintenance case against her husband who lives outside Indore?
This is an important practical question.
Section 145 BNSS contains specific territorial-jurisdiction provisions for proceedings under Section 144. Proceedings may be instituted in a district:
- where the respondent is;
- where he or his wife resides;
- where he last resided with his wife;
- or, in the applicable case, where the father or mother resides.
Consequently, the husband does not necessarily have to be physically residing in Indore for a wife residing in Indore to institute a maintenance proceeding here.
For example, if the husband is presently living in Bhopal, Mumbai, Delhi or another State, but the wife is residing within the territorial jurisdiction of Family Court, Indore, the wife’s residence can be relevant to determining jurisdiction under Section 145 BNSS.
However, jurisdiction should always be examined on the actual facts and the applicable territorial jurisdiction of the Family Court, Indore, rather than merely assuming that a person can file anywhere.
What if the husband and wife last lived together in Indore?
This is another important jurisdictional circumstance.
If the husband and wife last resided together in Indore, Section 145 BNSS expressly recognizes the place where the parties last resided together as one of the places where proceedings may be instituted.
Thus, if matrimonial life was last lived together in Indore and the parties subsequently separated, this fact may provide an important basis for approaching the Family Court, Indore.
Does the wife have to return to her husband’s house to claim maintenance?
No.
A wife does not automatically lose her right to claim maintenance merely because she is living separately from her husband.
However, Section 144 contains specific circumstances in which a wife may not be entitled to maintenance. For example, the statutory provision excludes entitlement where the wife is living in adultery, where she refuses to live with her husband without sufficient reason, or where the parties are living separately by mutual consent.
Therefore, the important question before the Family Court is often why the wife is living separately.
If the wife has a legally and factually sufficient reason for living separately, the husband cannot simply defeat the maintenance claim by saying:
“She is living separately from me.”
The Court will examine the circumstances of the separation.
What if the husband says that he is willing to keep his wife with him?
This is a common defence in maintenance proceedings.
Section 144 itself recognizes that a husband having contracted marriage with another woman or keeping a mistress constitutes a just ground for the wife’s refusal to live with him.
Therefore, the Family Court, Indore may have to examine the factual circumstances behind the wife’s decision to live separately.
Issues such as cruelty, domestic violence, harassment, extra-marital relationship, second marriage, dowry-related allegations, unsafe living conditions, serious matrimonial disputes and other relevant circumstances may become material depending upon the facts of the case.
Can a wife ask for interim maintenance before the Family Court, Indore?
Yes.
Section 144 BNSS expressly provides for interim maintenance and expenses of proceedings.
Therefore, a wife who has instituted a maintenance proceeding need not necessarily wait until the final decision of the entire case before seeking financial assistance.
An application for interim maintenance may be made during the pendency of the proceeding, and the Court can consider the financial circumstances of both parties.
The statute further provides that an application for interim maintenance and expenses of proceedings should, as far as possible, be disposed of within sixty days from the date of service of notice of the application.
This does not mean that every application automatically gets decided within exactly 60 days. The expression “as far as possible” recognizes the practical requirements of judicial proceedings.
From which date can maintenance be awarded?
Section 144 BNSS permits the maintenance or interim maintenance to be payable from the date of the order, or, if the Court so directs, from the date of the application for maintenance.
This distinction can be financially significant.
For example, if a wife files a maintenance application in January but the interim maintenance order is passed several months later, the question whether the amount is payable from the date of application or from the date of order can substantially affect the arrears.
The advocate should therefore specifically address this issue while drafting the application and during arguments.
Does the wife have to prove that the husband is earning a very high salary?
Not necessarily.
The central statutory question is whether the husband has sufficient means and has neglected or refused to maintain the claimant.
The Court can consider the husband’s employment, business, profession, property, assets, lifestyle, financial capacity and other reliable evidence while determining his means.
A husband cannot necessarily avoid maintenance merely by stating that his present declared income is low if the surrounding evidence indicates a substantially greater financial capacity.
Similarly, a maintenance claim should be supported by truthful and relevant financial information.
What if the husband claims that he is unemployed?
The mere assertion that the husband is unemployed does not automatically conclude the issue.
The Family Court, Indore can examine the overall financial circumstances of the parties.
Relevant material may include:
- educational qualifications;
- professional qualifications;
- previous employment;
- present business activities;
- property ownership;
- bank transactions where appropriately proved or disclosed;
- vehicles and other assets;
- business interests;
- professional practice;
- lifestyle;
- earning capacity;
- employment history; and
- other reliable evidence concerning financial resources.
The wife should therefore place before the Court whatever legally obtainable and reliable material she possesses regarding the husband’s actual financial capacity.
What if the wife herself is earning?
A working wife is not automatically disqualified from claiming maintenance.
The Court may consider her actual income, financial independence, reasonable needs and the financial circumstances of both parties.
The important question is not simply:
“Does the wife have a job?”
The Court may have to consider whether her income is sufficient for her maintenance and the other circumstances relevant under the law.
Consequently, a husband cannot necessarily defeat a maintenance claim merely by producing evidence that his wife is employed.
At the same time, the wife should make complete and truthful disclosure of her income and financial circumstances.
Can the husband contest a maintenance case before Family Court, Indore?
Yes.
After receiving notice, the husband is entitled to contest the wife’s claim in accordance with the applicable procedure.
He may place before the Court his defence concerning:
- the alleged neglect or refusal;
- the wife’s income;
- his own actual income and financial liabilities;
- the reason for the parties living separately;
- allegations concerning matrimonial conduct;
- previous maintenance orders;
- other pending proceedings;
- payments already made;
- and any other legally relevant defence.
The husband should not ignore the summons merely because he disputes the wife’s claim.
What happens if the husband does not appear before Family Court, Indore?
Section 145 BNSS contains a provision dealing with wilful avoidance of service or attendance.
Where the Court is satisfied that the respondent is wilfully avoiding service or wilfully neglecting to attend, it may proceed to hear and determine the matter ex parte.
The statute also provides a mechanism for seeking setting aside of an ex parte order for good cause, subject to the statutory conditions, including the three-month period mentioned in Section 145(2).
Therefore, a husband who receives a notice from the Family Court, Indore should not simply ignore it.
What documents should a wife generally keep ready?
The precise documents depend upon the facts, but a wife approaching the Family Court, Indore should ordinarily consider keeping documents such as:
- marriage certificate or other proof of marriage;
- identity and address proof;
- details of husband and his present address;
- children’s birth certificates, where relevant;
- school and medical expenses of children;
- evidence concerning the husband’s employment or business;
- information regarding his assets and financial resources;
- bank records or other relevant financial material, where available;
- details of her own income and expenses;
- details of previous maintenance proceedings;
- copies of previous orders;
- evidence concerning domestic violence, cruelty or other relevant matrimonial circumstances, where applicable.
The objective is not to file every document available but to place relevant and legally admissible material supporting the claim.
Can a child also claim maintenance under Section 144 BNSS before Family Court, Indore?
Yes, subject to the requirements of Section 144.
The provision covers legitimate and illegitimate children in the circumstances specified by the statute. The child’s age, ability to maintain himself or herself and the particular statutory conditions have to be examined.
Where a maintenance claim concerns minor children, the Court will also consider their reasonable requirements and the financial capacity of the parent from whom maintenance is sought.
Can parents claim maintenance?
Section 144 BNSS also provides a maintenance remedy to a father or mother who is unable to maintain himself or herself, subject to the statutory requirements.
However, parents’ maintenance claims can involve questions of jurisdiction and the appropriate statutory remedy depending upon the circumstances. Therefore, a parent should obtain case-specific legal advice rather than assuming that every claim must necessarily be filed before the Family Court, Indore.
Can maintenance under Section 144 BNSS and other maintenance remedies exist simultaneously?
Potentially, yes.
A spouse may have remedies under different laws, depending upon the circumstances—for example, proceedings under matrimonial law, the Protection of Women from Domestic Violence Act, 2005, or other applicable legislation.
However, the existence of multiple proceedings does not mean that a claimant is entitled to receive duplicate monetary recovery for the same period without adjustment.
Previous maintenance orders and amounts received are therefore important and should be disclosed to the Court.
What happens if the maintenance amount later becomes insufficient?
Section 146 BNSS provides for alteration of the maintenance allowance upon proof of a change in circumstances.
For example, circumstances may materially change because:
- the husband’s income has substantially increased;
- the wife’s financial circumstances have changed;
- the needs of a child have increased;
- educational expenses have increased;
- medical expenses have arisen;
- the payer’s financial circumstances have materially deteriorated; or
- another legally relevant change has occurred.
The Court can consider an appropriate application for alteration on the basis of the facts and evidence.
What if the husband stops paying the maintenance ordered by Family Court, Indore?
A maintenance order is not merely advisory.
Section 147 BNSS provides for enforcement of an order of maintenance. Therefore, if a person fails to comply with a maintenance order, the person in whose favour the order was passed can take appropriate steps for enforcement/recovery in accordance with the statutory procedure.
This is particularly important in cases where an interim maintenance order has been passed but monthly payments are not being made regularly.
The claimant should maintain a proper calculation of:
- amount ordered;
- amount payable each month;
- payments actually received;
- unpaid months; and
- total arrears.
This makes an enforcement application considerably clearer.
Practical advice for a person approaching Family Court, Indore
If you are considering filing a Section 144 BNSS maintenance case before the Family Court, Indore, do not treat the matter simply as a formality of filing an application.
Before filing, an advocate should ordinarily examine:
- Where the wife/claimant presently resides
- Where the husband/respondent resides
- Where the parties last resided together
- Whether Family Court, Indore has territorial jurisdiction on the particular facts
- Whether there are previous maintenance proceedings
- Whether any maintenance has already been awarded under another statute
- The actual financial position of both parties
- The claimant’s reasonable monthly requirements
- The respondent’s earning capacity and available resources
- The circumstances in which the parties started living separately
- Whether interim maintenance should be claimed
- Whether litigation expenses should also be claimed
- What documents and financial evidence are available
- Whether there are children and their separate expenses
- Whether any previous order requires enforcement or modification
Conclusion
Therefore, yes, a maintenance case under Section 144 BNSS can be pursued before the Family Court, Indore where the Family Court has jurisdiction over the proceeding. The Family Courts Act expressly gives Family Courts jurisdiction over maintenance proceedings and the jurisdiction formerly exercisable by a Magistrate in proceedings concerning maintenance of wives, children and parents.
For a wife residing in Indore, the fact that her husband is living outside Indore does not by itself prevent her from approaching the Family Court, because Section 145 BNSS specifically recognizes the place where the wife resides as one of the relevant jurisdictional places.
However, territorial jurisdiction should be determined from the actual facts of the case, particularly the residence of the parties and the place where they last resided together.
If you are appearing before the Family Court, Indore, it is also important to distinguish between filing the Section 144 proceeding, obtaining interim maintenance, proving income and financial capacity, and enforcing the final/interim maintenance order. Each stage requires a somewhat different approach and supporting material.
Disclaimer: This information is intended for general guidance only and does not constitute legal advice. Please consult with a qualified lawyer for personalized advice specific to your situation.
Advocate J.S. Rohilla (Civil & Criminal Lawyer in Indore)
Contact: 88271 22304