Claiming maintenance from abroad when the husband is in India

Matrimonial separations increasingly leave the spouses on different continents. A common pattern is the reverse of the familiar NRI dispute: the wife has moved abroad — for work, study or family support — while the husband continues to live and earn in India. This explainer sets out how such a claimant can institute and prosecute maintenance proceedings before Indian courts under Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (formerly Section 125 CrPC), without repeatedly travelling to India.

The statutory right does not travel out with the claimant

Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) — the successor to Section 125 of the Code of Criminal Procedure, 1973 — obliges a person having sufficient means to maintain his wife, children and parents who are unable to maintain themselves. Nothing in the provision requires the claimant to reside in India. The test is neglect or refusal to maintain, coupled with the claimant’s inability to maintain herself; where those ingredients exist, the Magistrate (in Delhi, the Family Court) may order a monthly allowance at such rate as the court thinks fit.

A wife who has moved abroad therefore retains the full benefit of the provision against a husband living and earning in India. What changes is not the right but the logistics: how the petition is presented, how she participates in hearings, and how her financial position is proved from overseas.

Territorial jurisdiction under Section 145 BNSS

Section 145 BNSS (formerly Section 126 CrPC) fixes where the proceedings may be taken. Broadly, the petition may be instituted in the district where the respondent is, where he or his wife resides, or where he last resided with his wife. When the claimant lives abroad, the limb that refers to her own residence is of little use, but the other limbs remain fully available. In practice, the petition is filed either where the husband presently resides or carries on his affairs, or where the parties last resided together as husband and wife — often the matrimonial home in Delhi.

This is a claimant-friendly scheme by design. The respondent cannot object that the wife is outside India; the statute looks to his location and the last shared residence, both of which are within the Indian court’s reach.

Filing through a power-of-attorney holder

The petition itself is ordinarily drafted on the wife’s instructions and presented through a duly constituted attorney — typically a parent or sibling in India holding a specific power of attorney. The Code of Civil Procedure, 1908 recognises appearances and acts by recognised agents, including persons holding powers of attorney, and family court practice in Delhi accommodates such filings as a matter of course. A power of attorney executed abroad should be attested before the Indian consulate or notarised in the foreign country and, where required, adjudicated on stamp duty after it is received in India.

Appearing and deposing by video conferencing

Section 530 BNSS now expressly permits trials, inquiries and proceedings to be held in electronic mode, by use of electronic communication or audio-video electronic means. Independently, the High Courts — including the Delhi High Court — have framed video conferencing rules governing remote appearance, identification of the deponent, and the conduct of examination. A claimant abroad can accordingly seek leave to be examined through video conferencing from a notified or approved location, avoiding repeated international travel. Interim maintenance applications are, in any event, decided largely on affidavits and documents, where personal presence is rarely decisive.

The affidavit of income and assets, currency and quantum

Family courts in Delhi insist on detailed affidavits of income, assets, expenditure and liabilities from both parties before fixing interim or final maintenance. A claimant abroad must disclose her foreign earnings, visa or work status, rent and living costs, and any support she receives, with supporting documents such as salary slips, tax filings and bank statements from the foreign jurisdiction. Candour matters: suppression of foreign income can damage the claim, while honest disclosure of high living costs abroad legitimately informs quantum.

The order itself is passed in Indian rupees, since the paying party earns in India. Courts weigh the respondent’s income and standard of living against the claimant’s shortfall after accounting for her own earnings. Exchange-rate movements are a practical reality the claimant bears; where circumstances change materially, Section 146 BNSS (formerly Section 127 CrPC) permits alteration of the allowance.

Execution: the easier half of the case

Where the respondent is in India, enforcement is markedly simpler than in the reverse NRI scenario. Under Section 144(3) BNSS, arrears may be recovered by issuing a warrant for levying the amount in the manner provided for fines, and continued default can invite imprisonment of up to one month for each month’s unpaid allowance. The respondent’s salary, bank accounts and immovable property in India are all within the executing court’s reach. An application for execution of arrears should ordinarily be made within one year of the amount falling due, as the proviso to the provision contemplates.

Parallel reliefs under the HMA and the DV Act

Section 144 BNSS is not the only route. If divorce or other proceedings under the Hindu Marriage Act, 1955 are pending, the wife may seek maintenance pendente lite and litigation expenses under Section 24 HMA, and permanent alimony under Section 25 HMA at the stage of decree. Separately, the Protection of Women from Domestic Violence Act, 2005 permits an aggrieved woman to claim monetary relief under Section 20 — including maintenance — alongside residence and protection orders, and these too can be pursued through an attorney-holder with remote participation. Courts take note of amounts awarded in parallel proceedings so that maintenance is adjusted, not duplicated.