Maintenance under BNSS | Bharatiya Nagarik Suraksha Sanhita, 2023

The Bharatiya Nagrik Suraksha Sanhita (BNSS) is a legislative framework aiming to streamline the diverse aspects of the law that shall enable the safety of Indian citizens. The legislation comprises several provisions covering public safety, justice and procedural reforms. Maintenance remains one of the most critical aspects of this legislation as it ensures financial sustenance for the dependants especially focusing on women and children, when their case is genuine. Thus, the term maintenance can be understood here to mean financial assistance, and support in other forms that are often understood to be existent in relationships such as those of marriage, family relationships and also parent-child relationships.

Sections 144 to 147 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, outline maintenance responsibilities, enforcement procedures, and the consequences of non-compliance, introducing potentially stricter penalties for defaulters.

Indian law has contained the concept of maintenance for a long time, and the same can also be traced back centuries. The previously applicable Code of Criminal Procedure (CrPC) contained imperative aspects relating to the provisions of maintenance to be granted to dependants who require financial assistance for sustenance. The purpose and objective behind the same is to ensure that individuals, the ones who are vulnerable, do not remain destitute, but are strengthened to support and maintain themselves after the familial breakdown.

The introduction of BNSS has further accentuated maintenance laws by giving them a fresh perspective that has only enhanced their effectiveness. The modern-day realities have also been suited to the context of the laws. The rights of citizens have thereby been catered to and the legislative intent to provide financial assistance has thereby been included.

Maintenance: A Legal Obligation

As per Section 144 of BNSS, which refers to the concept of maintenance, the same can be understood to be an obligation that is imposed on individuals to ensure sustenance along with the financial requirements of the said person or group of persons who are dependent which majorly includes a wife, children and old parents. The legislative intent behind this is the aim to not leave any person behind for suffering because of lack of resources, essentially in cases where family members need the said support and there exists an inherent duty to assist.

The major circumstances whereby the claim for maintenance is entertained and further granted are:

1. Maintenance for wife: The law takes up the duty of ensuring that a wife in case where she undergoes divorce or is living separately for a considerable amount of time, derive sufficient financial support as is required by her. The same is practised to help the wife to maintain the lifestyle that she is accustomed to.

2. Maintenance for Children: Parents must support their children while they are minors. In instances where the parents undergo divorce, or there is a custody battle, the parent who loses the said custody must assist financially in the upbringing, education and healthcare expenses of the child. His a legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, because of any physical or mental abnormality or injury unable to maintain itself

3. Maintenance for Parents: With regards to parents, this category majorly includes those parents who are either destitute or aged. Such parents can demand maintenance from their children provided certain circumstances are fulfilled.

Maintenance in the Bharatiya Nagrik Suraksha Sanhita

The BNSS has further evolved the provision of maintenance by introducing several reforms in the framework that focus primarily on the aspect of expediency and enforcement of the financial obligations involved.

1) Jurisdiction for Proceedings [Section 145 (1)]

Proceedings under Section 144 can be initiated against any person in a district where:

(a) the person is currently located,

(b) the person or their spouse resides, or

(c) the person last resided with their spouse or the mother of their illegitimate child.

2) Evidence in Proceedings [Section 145 (2)]

Evidence in such proceedings must be taken in the presence of the individual against whom the maintenance order is proposed. If personal attendance is excused, the evidence must be recorded in the presence of their pleader. The process follows the procedure for summons cases.

If the Judicial Magistrate determines that the individual is deliberately avoiding service or neglecting to attend court, the case may proceed ex parte.

Any ex parte order can be set aside for valid reasons within three months from the date of the order, subject to terms, including cost payments, as deemed appropriate by the Magistrate.

3) Power to Award Costs [Section 145(3)]

The Court has the discretion to order costs in proceedings under Section 144, as deemed just.

4) Alteration in Maintenance Allowance [Section 146(1)]

If there is proof of a change in circumstances, the Magistrate can alter the maintenance or interim maintenance allowance for any person receiving or paying maintenance under Section 144.

5) Impact of Civil Court Decisions [Section 146(2)]

The Magistrate must cancel or vary an order under Section 144 if a competent Civil Court’s decision warrants such a change.

6) Special Provisions for Divorced Women [Section 146(3)]

For divorced women, the Magistrate shall cancel the maintenance order:

(a) From the date of remarriage, if the woman remarries after divorce.

(b) If the divorced woman has received the entire sum due under customary or personal law:

• From the date of the maintenance order, if the sum was paid before the order.
• From the expiry of the period for which maintenance was already paid, if paid after the order.

(c) From the date of voluntary surrender of maintenance rights after divorce.

7) Adjustment Against Civil Court Decrees [Section 146(3)]

When a Civil Court passes a decree for the recovery of maintenance or dowry, it must account for the amounts already paid or recovered as maintenance or interim maintenance under Section 144.

8) Enforcement of Maintenance Orders [Section 147]

A copy of the maintenance or interim maintenance order, along with expenses of proceedings, must be provided free of cost to the person in whose favour the order is made, their guardian, or the recipient of the maintenance. Such orders can be enforced by any Judicial Magistrate.

Enhancing Maintenance Framework: Timely Disbursement and Stricter Penalties

1. Speedier Disbursement of Maintenance

The long delays accompanied by the disbursement of amounts as granted under maintenance have been a major challenge in India. The awarding and disbursing of money leads to such high delays, that the purpose itself of the provision gets defeated. The lack of financial support is thereby extended due to protracted litigation. BNSS has attempted to eradicate this issue by putting in place a more time-bound framework for maintenance. For instance, the concept of “interim maintenance” aims to assist when the case is not fully decided.

2. Increased Penalties for Non-Payment

BNSS imposes higher and stricter penalties on people who make default in their maintenance obligations. India on average faces a significant number of cases of maintenance payment evasion by individuals who avoid their legal responsibilities. The provisions under BNSS include fines. If a person fails to comply with a maintenance order without sufficient cause, the Magistrate may issue a warrant to recover the unpaid amount as fines. Additionally, the person may face imprisonment for up to one month or until the payment is made. However, a warrant for recovery will not be issued unless an application is filed within one year from the date the amount became due. [Section 144 (3)]

Conclusion

BNSS has thereby aimed to modernize as well as simplify the legal framework that governs maintenance in India. The issues of delay, non-compliance and fairness have been sought to be kept in check. This seems to be promising with regards to providing better protection as well as support to individuals who require financial assistance.

The focus is to implement timely disbursement, gender neutrality and also support that is inclusive in holistic sense. This would further set up an environment that benefits all of its citizens and essentially the groups that are vulnerable in society. Implementation of BNSS in the true sense would, however, decide whether the same can be achieved instead of India’s diverse social realities.

References

[1] Bharatiya Nagarik Suraksha Sanhita, 2023

[2] Code of Criminal Procedure, 1973

[3] Legal Consequences of Non-Payment of Maintenance, Available Here

[4] Concept of ‘maintenance’ under Indian law, Available Here