Can a divorced wife claim maintenance under Section 144 of BNSS?

Yes, a divorced wife can claim maintenance under Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), provided specific conditions are met. Section 144 is designed to safeguard the rights of women, including divorced wives, by ensuring they receive financial support from their ex-husbands if they are unable to maintain themselves. This provision mirrors the spirit of Section 125 of the Criminal Procedure Code, 1973, with some enhancements under BNSS.

Detailed Explanation of Maintenance for Divorced Wife under Section 144 BNSS

1. Entitlement of Divorced Wife to Claim Maintenance

Under Section 144 of BNSS, a divorced wife can claim maintenance if:

• She is unable to maintain herself: The primary condition for a divorced wife to claim maintenance is that she must not have sufficient means or independent income to support her basic living expenses. If she lacks financial independence or the ability to maintain herself after divorce, she can seek maintenance from her ex-husband.
• The husband has sufficient means: The court will assess whether the ex-husband has the financial means to provide maintenance. Even though the couple is no longer married, the law recognizes that a woman should not suffer economically as a result of the divorce.

2. Right to Maintenance Even After Divorce

Even though the marital bond has been legally severed, a divorced wife can still claim maintenance as long as she fulfills the eligibility criteria. The rationale behind this provision is that, post-divorce, if a woman cannot maintain herself, she has the right to seek financial assistance from her former spouse.

However, there are limitations:

• Remarriage of the Divorced Wife: If the divorced wife remarries, her right to claim maintenance from her former husband ceases immediately. The responsibility to provide for her shifts to her new spouse after remarriage.
• Voluntary Waiver: In certain divorce settlements, a wife may voluntarily waive her right to future maintenance in exchange for a one-time lump sum payment or financial settlement. In such cases, she cannot claim maintenance under Section 144 if the agreement has been legally recorded.

3. Conditions for Granting Maintenance to a Divorced Wife

To secure maintenance, a divorced wife must satisfy specific conditions:

• Inability to Maintain Herself: The divorced wife must prove that she lacks sufficient income or resources to support herself. The court considers her current employment status, income, and any other sources of financial support. The intention is to ensure that the woman is not left destitute after the divorce.
• Ex-Husband’s Financial Capacity: The court will examine the ex-husband's financial situation, including his income, assets, and overall means. If the husband has sufficient means but fails to provide support voluntarily, the court can compel him to pay maintenance.
• Neglect or Refusal by Ex-Husband: If the ex-husband neglects or refuses to support his divorced wife despite having sufficient means, the court can intervene to grant maintenance.

4. Quantum (Amount) of Maintenance for Divorced Wife

The amount of maintenance a divorced wife can receive is determined by the court after considering various factors:

• Financial Status of the Ex-Husband: The court considers the husband’s financial standing, including his earnings, property, and other obligations.
• Reasonable Needs of the Wife: The court evaluates the divorced wife’s reasonable needs, such as housing, food, clothing, healthcare, and education (if applicable). The aim is to maintain a standard of living similar to what she enjoyed during the marriage.
• Other Dependents: If the husband has other dependents, such as children or elderly parents, the court may adjust the maintenance amount accordingly. The court strives to balance the financial needs of the wife and the obligations of the husband.

5. Duration of Maintenance

The maintenance awarded to a divorced wife is generally ongoing unless one of the following occurs:

• Remarriage of the Wife: If the divorced wife remarries, her right to maintenance ceases.
• Change in Circumstances: Either party can request a revision of the maintenance amount if their financial situation changes significantly. For example, if the ex-wife starts earning enough to support herself or if the ex-husband’s financial capacity declines, the court may modify the maintenance order.

6. Procedure to Claim Maintenance

To claim maintenance under Section 144 of BNSS, a divorced wife must follow a legal process:

• Filing an Application: The divorced wife must file an application for maintenance before a Judicial Magistrate of First Class or another appropriate court. The application should clearly state her inability to support herself and include details about her ex-husband’s neglect or refusal to provide financial support.
• Court Notice to Ex-Husband: The court will issue a notice to the ex-husband to respond to the wife’s application. He must present evidence of his financial situation and explain why he is not providing support, if applicable.
• Court Proceedings and Evidence: Both the divorced wife and the ex-husband can present evidence regarding their financial status, including income, assets, liabilities, and dependents. Based on the evidence, the court will decide on the quantum of maintenance.
• Order of Maintenance: After hearing both parties, the court will pass an order specifying the amount of maintenance and the frequency of payment (monthly, quarterly, etc.).

7. Enforcement of Maintenance Orders

If the ex-husband fails to comply with the court’s maintenance order, the divorced wife can take legal steps to enforce it. The court can:

• Attach the Husband’s Property: The court can order the attachment of the ex-husband’s property, salary, or bank accounts to recover unpaid maintenance.
• Imprisonment for Non-Compliance: If the husband willfully defaults on maintenance payments, the court may impose imprisonment until he complies with the order.

8. Interim Maintenance

While the case for final maintenance is being adjudicated, the court may grant interim maintenance to provide immediate relief to the divorced wife. This interim order ensures that the wife is not left without financial support while the legal process is ongoing.

9. Modification of Maintenance

The maintenance order can be modified if either party's circumstances change. The court can increase, decrease, or even terminate the maintenance if warranted by new developments, such as the wife securing a well-paying job or the husband facing financial difficulties.

10. FAQs on Maintenance for Divorced Wife under Section 144 BNSS

Q1. Can a divorced wife claim maintenance if she is working? Yes, a divorced wife can claim maintenance even if she is working, provided her income is insufficient to meet her reasonable needs and maintain the standard of living she was accustomed to during the marriage.

Q2. Can a wife claim maintenance after a mutual consent divorce? Yes, a wife can claim maintenance after a mutual consent divorce unless she has explicitly waived her right to maintenance in the divorce settlement.

Q3. Is there a limit to the amount of maintenance a divorced wife can receive? The court decides the amount of maintenance based on the financial status of both parties. There is no fixed limit, but the amount must be reasonable, considering the husband's ability to pay and the wife’s needs.

Q4. Can a wife claim maintenance for children along with her own maintenance? Yes, a divorced wife can claim maintenance for children under Section 144 if they are in her custody. The maintenance for children is in addition to the wife’s own claim.

Q5. Can a divorced wife claim maintenance if the husband is financially struggling? If the husband is genuinely unable to pay due to financial struggles, he can present evidence of his financial situation to the court. The court may reduce the maintenance or adjust it based on his capacity to pay.

Conclusion

Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) provides a divorced wife with the right to claim maintenance if she cannot maintain herself. The law ensures that women are not left financially vulnerable after divorce, and it allows them to seek financial support from their ex-husbands. The court considers several factors, including the wife’s needs, the husband’s financial capacity, and other obligations before deciding on the maintenance amount.

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.

Adcocate J.S. Rohilla (Civil & Criminal Lawyer in Indore)

Contact: 88271 22304

www.jsrohilla.com