The summary maintenance remedy — Section 125 of the CrPC, now Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 — is deliberately generous to claimants: it is a measure of social justice designed to prevent destitution. But the statute itself builds in three disqualifications. Under Section 144(4), a wife is not entitled to maintenance from her husband if she is living in adultery, if she refuses to live with her husband without sufficient reason, or if the spouses are living separately by mutual consent; and under Section 144(5) the Magistrate may cancel an existing order on proof of the same grounds. This explainer examines how each clause operates, the standard of proof respondents must meet, and the exceptions that protect genuine claimants.
The design of the provision
Section 144 BNSS entitles a wife who is unable to maintain herself to a monthly allowance from a husband having sufficient means who neglects or refuses to maintain her. Sub-section (4) then withdraws that entitlement in three defined situations. Because the parent provision is protective, courts construe the disqualifications strictly: the respondent who invokes them carries the burden, and doubt is resolved in favour of the claimant. The corresponding provisions of the old Code — Section 125(1), (4) and (5) CrPC — were in materially the same terms, so the pre-2024 case law continues to guide interpretation.
| Clause | Bar | Practical scope |
|---|---|---|
| First | Wife living in adultery | A continuing adulterous course of life, proved by cogent evidence; isolated past lapses do not qualify |
| Second | Refusal to live with the husband without sufficient reason | Fails wherever the wife shows just cause for separate residence — cruelty, dowry harassment, second marriage, or a genuine apprehension of harm |
| Third | Living separately by mutual consent | A truly consensual arrangement to live apart; not a separation forced by conduct and later dressed as consent |
Clause one: the adultery bar
The statutory phrase is "living in adultery" — a present-continuous expression. The husband must establish an ongoing relationship in the nature of a course of conduct, contemporaneous with the claim. This is a deliberately high bar: the provision does not exist to conduct a morality audit of the wife's past, and courts have consistently refused to let unproved aspersions — the routine ammunition of matrimonial pleadings — defeat a maintenance claim. Evidence typically must be specific: cohabitation with a named person, birth records, or admissions. Practitioners should also note the interaction with matrimonial findings: a decree of divorce on the ground of adultery stands on adjudicated proof, while a bare pleading in a pending petition proves nothing.
Clause two: "sufficient reason" and the statutory explanation
The refusal bar is the most litigated. Its pivot is the phrase "without any sufficient reason": a wife who declines to return to the matrimonial home for good cause loses nothing. The statute supplies one express illustration — if the husband has contracted marriage with another woman or keeps a mistress, that is a just ground for the wife's refusal to live with him. Beyond it, the case law recognises cruelty (physical or mental), persistent dowry demands, humiliation, and a reasonable apprehension of harm as sufficient reasons. Two practice points follow. For husbands, an offer to resume cohabitation must be bona fide; a restitution decree or a bare offer made to defeat maintenance carries little weight if the underlying conduct made the home unsafe. For wives, the reasons for separate residence should be pleaded concretely in the petition itself, since they will be tested in cross-examination.
Clause three: separation by mutual consent
Where spouses genuinely agree to live apart — commonly through a settlement deed — the statute treats the arrangement as inconsistent with a maintenance obligation imposed by a Magistrate. The contested territory lies in what counts as consent. A deed signed under economic pressure, a customary divorce document extracted from an illiterate or dependent wife, or an arrangement that itself provided for maintenance that the husband then stopped paying, will each be scrutinised. Courts also treat purported waivers of the statutory right with suspicion, because the remedy exists as a matter of public policy against destitution, not merely as a private entitlement.
Cancellation under Section 144(5)
The disqualifications are not spent at the order stage. On proof that a wife in whose favour an order stands is living in adultery, refuses without sufficient reason to live with her husband, or that the parties are living separately by mutual consent, the Magistrate shall cancel the order. Cancellation applications are tried on evidence like the original petition, and the burden again rests on the husband. Remarriage of a divorced wife is a separate, express ground for cancellation from the date of remarriage.
This explainer describes the statutory framework in general terms and is not legal advice. Maintenance outcomes are acutely fact-dependent, and interim and final stages are governed by different standards of scrutiny.
Frequently Asked Questions
What does "living in adultery" mean for maintenance purposes?
The expression connotes a continuing course of adulterous conduct at or around the time maintenance is claimed — an ongoing relationship — not an isolated lapse in the past. The burden of proving it lies on the husband, and vague suspicion or bare allegations of character do not meet it.
When is a wife's refusal to live with the husband justified?
Whenever there is "sufficient reason" — cruelty, dowry demands, apprehension of harm, or the husband contracting another marriage or keeping a mistress, which the statute itself declares a just ground for refusal. A wife living separately for sufficient reason retains her claim in full.
Does a separation agreement bar maintenance?
Separation by mutual consent — a genuinely consensual arrangement to live apart — is a statutory bar. But courts distinguish true mutual-consent separation from a settlement in which a wife was driven out or signed under pressure, and a waiver of the statutory right itself is treated with great caution as being against the provision's protective purpose.
Do these disqualifications apply at the interim stage?
Allegations under Section 144(4) are usually matters of evidence. Courts are slow to deny interim maintenance on untested allegations, though a clear admitted position — for example, a registered mutual separation deed — can weigh in even at that stage. Final adjudication follows trial.