Maintenance is among the most frequently litigated subjects before the Family Courts of Delhi, and among the least well understood by those approaching them for the first time. The claim can be made under more than one statute, the procedure differs from one to another, and the outcome turns heavily on documents assembled long before the first hearing. What follows is an account of how such a proceeding actually moves.
Choosing the provision
The first decision is which statute to invoke, and it is not a formality. Each route has its own character.
| Provision | Who may claim | Character of the proceeding |
|---|---|---|
| Section 144 BNSS, 2023 (formerly Section 125 CrPC) | Wife, minor children, adult children unable to maintain themselves by reason of injury or infirmity, and parents | Summary, available irrespective of religion, before the Family Court exercising this jurisdiction |
| Section 24, Hindu Marriage Act, 1955 | Either spouse, during the pendency of matrimonial proceedings | Interim maintenance and expenses of the proceeding, ancillary to the main petition |
| Section 18, Hindu Adoptions and Maintenance Act, 1956 | Hindu wife, on the grounds specified | Civil suit, tried on evidence, wider in scope |
| Section 20, Protection of Women from Domestic Violence Act, 2005 | Aggrieved person as defined by that Act | Monetary relief, before the Magistrate, alongside other reliefs under the Act |
These remedies are not mutually exclusive, though a court will take into account amounts already awarded or paid under another proceeding so that there is no duplication. Where matrimonial proceedings are already pending, Section 24 is often the swiftest route to an interim figure. Where no such proceeding exists, the summary jurisdiction is generally the appropriate starting point.
The stages of the proceeding
1. Filing
The petition or application is filed before the Family Court having territorial jurisdiction, accompanied by the affidavit of assets, income and expenditure, and the supporting documents.
2. Notice and appearance
Notice issues to the respondent, who enters appearance and is likewise required to file his affidavit of assets, income and expenditure.
3. Interim maintenance
An application for interim maintenance is generally taken up early. It is decided on affidavits and documents, without trial, and a figure is fixed to run during the pendency of the proceeding.
4. Reply and rejoinder
The respondent files his reply to the main application; the petitioner files a rejoinder where necessary.
5. Evidence
The petitioner leads evidence by affidavit and is cross-examined. The respondent then leads his evidence and is cross-examined.
6. Arguments and final order
The court fixes the quantum, the date from which it runs, and the mode and date of payment each month.
7. Execution or enforcement
Where the order is not complied with, recovery is pursued through the enforcement machinery provided by the relevant statute.
The affidavit of assets, income and expenditure
This document does more work than any other in a maintenance proceeding. It requires each party to disclose income from all sources, assets held, liabilities and monthly expenditure, and it is filed on oath. Courts across the country now require it as a matter of course at the threshold.
Two errors recur. The first is a disclosure that is technically true but materially incomplete — a declared salary that omits allowances, rental income, agricultural income or business receipts. The second is an expenditure statement that does not sit with the assets declared, where a person claiming a modest income accounts for expenses that plainly exceed it. Where the disclosure is found unreliable, the court is entitled to look past declared income to earning capacity, and to assess maintenance on that basis. A carefully prepared affidavit protects the party filing it; a careless one becomes the strongest material in the hands of the other side.
Documents worth assembling early
Income tax returns and Form 16 for the preceding three years, together with Form 26AS where available.
Bank statements for all accounts for at least the preceding year, and credit card statements, which frequently reveal a standard of living that the declared income does not explain.
Salary slips, appointment letters and, in the case of the self-employed, the balance sheet, GST returns and details of the business.
Documents of title or possession relating to immovable property, and details of vehicles, investments and insurance.
Evidence of the standard of living during cohabitation — photographs, travel records, school fee receipts, records of the matrimonial home — which bears directly on quantum.
Where children are involved, school fee structures, records of medical expenditure and details of any special needs.
How quantum is approached
There is no formula. Courts weigh the status of the parties, the reasonable needs of the claimant, the income and earning capacity of the respondent, his own liabilities and dependants, the number of persons he must maintain, and the standard of living to which the claimant was accustomed during cohabitation. The object is that the claimant should be able to live in a manner reasonably comparable to that standard, not merely to subsist.
Where the claimant is herself earning, that is relevant but not determinative. The question is whether her income is sufficient to maintain the standard of living in question, not simply whether she has any income at all. Similarly, a respondent's assertion of unemployment is examined against his qualifications, his history of earning and his assets, since earning capacity rather than present idleness is the touchstone.
The date from which maintenance runs
This is frequently overlooked and frequently consequential. The court may direct that maintenance run from the date of the application or from the date of the order, and it must give reasons. Where a proceeding has lasted four or five years, the difference between those two dates can be substantial. The prayer clause should ask specifically for maintenance from the date of the application, and the pleading should set out why — for instance, the period for which the claimant has been without support, or delays in the proceeding not attributable to her.
Enforcement
An order that is not obeyed is worth little, and the enforcement provisions are therefore part of the plan from the outset. Under the summary jurisdiction, arrears may be recovered in the manner provided for the levy of fines, and the court has power to direct imprisonment for each month's default in appropriate cases, though this is a mode of enforcement and not a discharge of the liability. Orders under the matrimonial statutes are enforced as decrees. In practice, orders that specify the mode of payment — direct bank transfer to a nominated account, by a fixed date each month — are markedly easier to enforce than orders which leave the mode open, and it is worth asking for that specificity when the order is being framed.
A note on timelines
Interim maintenance is generally decided within a few months of filing, though this varies with the court's docket and the conduct of the parties. Final adjudication takes considerably longer, since it requires evidence and cross-examination on both sides. Realistic expectations at the outset make for better decisions along the way — particularly the decision whether to press for an early interim order and let the final adjudication take its course, or to seek an expedited trial.
This note is a general description of procedure and is not advice on any particular case. The appropriate course in a given matter depends on its own facts, the relationship between the parties, and the proceedings already pending between them.
Frequently Asked Questions
Under which law should a claim for maintenance be brought?
It depends on the relationship, the relief sought and the strategy. Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023, corresponding to Section 125 CrPC, is available irrespective of religion and is summary in character. A Hindu wife may claim under Section 24 of the Hindu Marriage Act, 1955, during matrimonial proceedings, or under Section 18 of the Hindu Adoptions and Maintenance Act, 1956. Section 20 of the Protection of Women from Domestic Violence Act, 2005, provides monetary relief. More than one may be available at once.
Does maintenance run from the date of the application or the date of the order?
The court has the power to award maintenance from either date and must record reasons for its choice. Which date is chosen makes a substantial practical difference where proceedings have run for several years, and the point should be specifically addressed in the pleadings and in argument rather than left to inference.
What if the paying spouse conceals income?
Both parties are required to file an affidavit of assets, income and expenditure at the outset. Where the disclosure is incomplete or manifestly false, the court may draw an adverse inference and assess earning capacity rather than declared income. Documents such as bank statements, income tax returns, credit card statements, property records and details of the standard of living during cohabitation are relevant.
Can an existing maintenance order be changed later?
Yes. Where there is a change in circumstances, an application for alteration may be made — under Section 127 CrPC, now Section 146 BNSS, for orders under the summary jurisdiction, and under the corresponding provisions of the matrimonial statutes. The application must be supported by evidence of the changed circumstances, not merely by assertion.