Most writing on maintenance concerns quantum — how much, from when, on what proof of income. Less discussed is the threshold question the respondent's side raises in a substantial share of contested cases: is the claimant disentitled altogether? Section 144(4) of the Bharatiya Nagarik Suraksha Sanhita, 2023, carrying forward Section 125(4) of the CrPC, sets out three statutory disqualifications — living in adultery, refusing without sufficient reason to live with the husband, and living separately by mutual consent — and Section 144(5) allows cancellation of an existing order on proof of the same grounds. This explainer examines how Delhi courts approach each limb.
The statutory text and its structure
Section 144(1) BNSS obliges a person having sufficient means to maintain a wife unable to maintain herself, children and parents. Sub-section (4) then provides that no wife shall be entitled to receive an allowance for maintenance or interim maintenance if she is living in adultery, or if without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent. Sub-section (5) empowers the Magistrate to cancel an order already made on proof of any of these grounds. The provisions replicate Section 125(4) and (5) of the CrPC, so five decades of jurisprudence carries forward intact.
| Limb | What must be proved | Who proves it |
|---|---|---|
| Living in adultery | A continued adulterous course of life at or about the relevant time — not a solitary act, not suspicion | Husband, by cogent evidence |
| Refusal to live with husband | Refusal without sufficient reason; cruelty, expulsion, second marriage or a mistress are statutory or recognised sufficient reasons | Husband proves refusal; wife shows her reason |
| Separation by mutual consent | A genuine consensual arrangement to live apart, ordinarily with settled terms | Husband |
Limb one: "living in adultery"
The present continuous tense does real work. Courts consistently hold that the disqualification targets a persisting state of affairs — a quasi-permanent liaison — because the provision is a measure of social justice and disqualifications from it are strictly construed. Evidence typically pressed includes cohabitation with another man, children born of that relationship, or admissions; what fails is bare assertion, anonymous letters, or the fact that the wife has male acquaintances. An important procedural point: the issue can be raised at the interim maintenance stage, but Magistrates ordinarily decline to conduct a trial-within-a-trial there, leaving the disqualification for final adjudication on evidence.
Limb two: refusal without sufficient reason
This limb interlocks with the restitution-of-conjugal-rights dynamic. A husband who offers to maintain his wife on condition that she lives with him may see the Magistrate test the genuineness of the offer and the reasonableness of her refusal. The proviso settles one recurring scenario: if the husband has contracted marriage with another woman or keeps a mistress, that is a just ground for the wife to refuse to live with him — and maintenance follows notwithstanding the refusal. Beyond the proviso, sufficiency of reason is a fact-sensitive inquiry; findings in cruelty litigation between the parties, though not binding, are frequently persuasive.
Limb three: mutual consent separation
The paradigm case is a separation agreement with mutual release of claims, or the interregnum of a mutual consent divorce where terms have been settled and partly acted upon. Two cautions apply. First, consent must be genuine and subsisting: an arrangement the wife was compelled to accept, or which the husband has breached, does not bar her claim. Second, where a settlement fixed a lump sum or periodic payment, the question becomes one of enforcement or of altered circumstances under Section 146 BNSS rather than fresh disqualification analysis.
Cancellation under Section 144(5)
- Cancellation is prospective; it does not wipe out arrears accrued under a valid order.
- The application must prove a present disqualifying state — post-order adultery, an unjustified refusal to return despite a genuine offer, or a consensual separation arrangement.
- Remarriage of a divorced wife engages the separate machinery of Section 146, alongside the alteration-of-circumstances ground.
- An order obtained by suppressing a disqualifying fact can be challenged, but the route is the statute, not collateral defiance — non-payment pending challenge invites warrants under Section 144(3).
Practice note: For claimants, the drafting answer to anticipated Section 144(4) defences is candour: state the reason for separate residence specifically and early. For respondents, the disqualifications are pleaded far more often than they are proved; an unfocused adultery plea without evidence tends to damage the very case it was meant to serve. The productive contest, in most Delhi courtrooms, remains means, needs and concealment of income — not disqualification.
Frequently Asked Questions
Does a single allegation of adultery defeat a maintenance claim?
No. The statutory phrase is "living in adultery", which courts have long read as a continued adulterous course of conduct, not an isolated lapse or a bare suspicion. The burden lies on the husband, and the standard requires cogent evidence; unsubstantiated aspersions can in fact strengthen the wife's case on cruelty.
What is a "sufficient reason" for a wife to live separately?
Cruelty, dowry demands, expulsion from the matrimonial home, or the husband contracting another marriage or keeping a mistress — the statute itself, in the proviso appended to the enforcement sub-section (Section 144(3) BNSS, mirroring Section 125(3) CrPC), expressly treats the latter as just ground for refusal to live with him. Sufficiency is assessed from the standpoint of a reasonable person in the wife's position.
Does separation by mutual consent always bar maintenance?
The bar applies where the parties are living apart pursuant to a genuine mutual arrangement, typically with settled terms. Courts examine whether consent was real and whether the arrangement addressed maintenance; a separation forced on the wife and later described as consensual does not qualify.
Do these disqualifications apply to child maintenance?
No. The disqualifications in Section 144(4) concern the wife's claim. A child's entitlement to maintenance from the father stands on its own footing and is unaffected by disputes between the parents, including findings on the mother's conduct.