An order of maintenance under Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (formerly Section 125 CrPC) speaks as on the date it is passed. Incomes rise and fall, needs change, parties remarry or reconcile. Section 146 BNSS (formerly Section 127 CrPC) is the statutory valve that keeps the order aligned with reality: it permits alteration of the monthly allowance, and in defined situations, cancellation of the order altogether.
The scheme in outline
Section 144 BNSS (formerly Section 125 CrPC) provides a summary, secular remedy: a Magistrate — in Delhi, in practice the Family Court — orders a person with sufficient means to pay a monthly allowance for the maintenance of a wife, children or parents unable to maintain themselves. Section 146 BNSS then does two distinct things. Sub-section (1) permits alteration of the allowance on proof of a change in the circumstances of either party, and cancellation in specified situations connected mainly with divorce. Sub-section (2) obliges the court to cancel or vary its order in consequence of a decision of a competent civil court. The remedy is thus deliberately flexible: the order follows the parties through life rather than fixing their rights once and for all.
Alteration on change of circumstances
The core ground is a change in the circumstances of the person receiving or the person paying the allowance. The change may justify an increase or a decrease. Typical changes courts act upon include:
- A significant rise or fall in the income of the paying spouse — promotion, new employment, business growth, or conversely retrenchment, retirement or genuine business losses.
- Growing needs of children as they advance in school and higher education, or medical needs of the claimant that did not exist earlier.
- The claimant securing gainful employment or an independent income after the original order.
- Fresh legal liabilities of the payer, such as maintenance ordered for other dependants, weighed against the principle that voluntary liabilities do not dilute the statutory duty.
- Sustained inflation that has eroded the real value of the original allowance.
Two cautions apply. The change must be proved, not merely asserted — the applicant carries the burden. And the section is not a device to re-argue the original order: what could have been urged then, on the same facts, is not a change in circumstances now. Alteration ordinarily operates prospectively, from the date the court specifies.
Cancellation connected with divorce
Section 146 recognises that the entitlement of a divorced wife can come to an end in defined ways. The court cancels the order where, after the date of divorce:
| Ground | Effect |
|---|---|
| The divorced wife has remarried | The order is cancelled as from the date of her remarriage. |
| She has received, whether before or after the order, the whole of the sum payable on divorce under the customary or personal law applicable to the parties | The order is cancelled — from the date the sum was paid where it was paid after the order, and otherwise from the date of the maintenance order itself, subject to the terms of the provision. |
| She has voluntarily surrendered her right to maintenance after divorce | The order is cancelled from the date of surrender. |
None of these operates automatically. The payer must move the court, prove the ground, and obtain an order of cancellation. Until then, the original order remains executable.
Grounds imported from Section 144(4) and (5)
Section 144 itself disentitles a wife in three situations, and sub-section (5) empowers the Magistrate to cancel an order already made on proof of any of them:
Living in adultery
A wife living in adultery is not entitled to the allowance, and an existing order may be cancelled on proof of it. The disentitlement contemplates a continuing course of conduct, which must be established by evidence.
Refusal to live with the husband
A wife who refuses to live with her husband without sufficient reason is disentitled. The statute itself recognises that a husband contracting another marriage or keeping a mistress is just ground for the wife to refuse to live with him.
Separation by mutual consent
Where the spouses are living separately by mutual consent, the summary remedy is not available, and an existing order can be cancelled on that proof.
Effect of civil court decisions — Section 146(2)
The summary jurisdiction yields to the considered adjudication of the civil side. Where a competent civil court — including a Family Court deciding maintenance or matrimonial rights under personal law — has pronounced on the rights of the parties, Section 146(2) requires the Magistrate to cancel or vary the summary order in consequence of that decision. The provision also contemplates that where maintenance has been recovered under the summary order for a period covered by a civil decree, the civil court takes those payments into account, so that the payer does not pay twice over for the same period.
Procedure and proof
The application is filed before the court that passed the maintenance order or before the Family Court now exercising that jurisdiction, with notice to the other side. The applicant pleads the specific change or ground, and leads evidence: salary slips, income tax returns, bank statements, proof of remarriage, the deed or receipt evidencing payment of sums due on divorce, or material establishing the conduct alleged. The respondent may rebut, and the court decides on the balance of the material, recording how circumstances have changed since the original order. Interim arrangements can continue while the application is pending, and the resulting order may increase, reduce, or cancel the allowance, or leave it untouched.
Enforcement of maintenance orders, the fixing of quantum, interim maintenance and the maintenance of parents are dealt with in separate explainers on this website; this article is confined to alteration and cancellation under Section 146 BNSS.
Frequently Asked Questions
Can the wife apply to increase maintenance already granted?
Yes. Section 146 BNSS works both ways. On proof of a change in circumstances — such as a rise in the earnings of the husband, growing needs of children, or inflation eroding the original figure — the Magistrate or Family Court may increase the allowance. Enhancement applications by the wife or children are as maintainable as reduction applications by the husband.
Does remarriage of the wife end maintenance automatically?
Remarriage after divorce is a statutory ground for cancellation, but the order does not lapse on its own. The husband must apply under Section 146 BNSS, and the court cancels the order from the date of remarriage. Maintenance for the children is unaffected by the remarriage of the mother and continues on its own footing.
What if a civil court has already decided maintenance between the parties?
Section 146(2) BNSS requires the Magistrate to cancel or vary the summary order in consequence of any decision of a competent civil court. Where a civil or Family Court decree settles the rights of the parties, the summary order is brought in line with it, and amounts paid can be directed to be set off against the decree.
Which court hears the alteration application?
The application is moved before the court that passed, or now has jurisdiction over, the maintenance order — in Delhi, ordinarily the Family Court of the district. The applicant must plead and prove the change in circumstances; the order operates prospectively from the date the court directs.