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Home › High Court — Maintenance
Calcutta High Court · 12 October 2026 · CRR 1465 of 2018

No Income Finding, No Final Figure: Maintenance Order Set Aside and Remanded

In revision, Justice Chaitali Chatterjee Das holds that a court fixing maintenance under Section 125 CrPC must determine the husband's actual income even when he stays away from the proceedings — and that the claimant wife must still prove her inability to maintain herself.

Maintenance under Section 125 of the Code of Criminal Procedure — now Section 144 of the BNSS — is a measure of social justice, but the quantum must rest on findings, not assumptions. In Partha Sarathi Guha v. Supriya Guha (CRR 1465 of 2018, 2026:CHC-AS:1813, decided on 12 October 2026), the Calcutta High Court set aside a Family Court order of Rs. 25,000 per month because it was passed without determining the husband's actual income, remanded the application for a fresh trial on affidavits of assets and liabilities, and fixed interim maintenance of Rs. 10,000 per month in the meantime.

A marriage of months, litigation of decades

The parties married in August 2007 under circumstances that generated dispute almost immediately: the wife left the matrimonial home around January 2008, each side blaming the other. The husband\'s restitution suit was withdrawn; his divorce suit was dismissed for default; the wife\'s Section 125 application came only in 2014. In March 2018, the Family Court ordered Rs. 25,000 per month with Rs. 20,000 in litigation costs — an order the husband, asserting a salary of about Rs. 45,000 and pointing to the wife\'s qualifications and property, challenged in revision. The revision took eight years to decide, during which the husband was arrested over arrears and paid part of them.

The two findings a maintenance court cannot skip

The claimant\'s inability

Section 125 protects a wife "unable to maintain herself". That inability must be pleaded and proved — education, work history, income, assets and health all bear on it. The High Court faulted the record for treating entitlement as self-evident, and noted the long, unexplained delay in claiming maintenance at all.

The respondent\'s income

Quantum must be anchored in a finding of what the husband actually earns. His failure to appear or cross-examine permits adverse inferences under Section 114(g) of the Evidence Act, but inference is not exemption: the court must still gather material — affidavits, salary records, standard-of-living evidence — and determine income before fixing a figure.

The Rajnesh v. Neha architecture

Since Rajnesh v. Neha (2020), every maintenance proceeding is supposed to run on sworn affidavits of assets and liabilities from both sides, updated where circumstances change, with quantum reasoned against the disclosed material. Kiran Jyot Maini v. Aneesh Pramod Patel (2024) carried the framework forward with directions on enforcement. The remand order here is in effect a direction to run the proceeding the way those judgments require: fresh affidavits, evidence from both parties, and a time-bound trial without adjournments. The interim figure of Rs. 10,000 per month preserves the wife\'s subsistence while the record is built.

Lessons for both sides of a maintenance case

If you act for the claimantIf you act for the respondent
Plead and prove inability to maintain — do not rest on the marital status aloneAppear and contest; absence invites adverse inference even though it does not excuse the court from finding income
Explain any delay in approaching the courtFile a complete, honest affidavit of assets; understatement discovered later destroys credibility
Bring standard-of-living and income evidence of the respondentDocument actual income — salary slips, tax returns, bank statements
Seek interim maintenance early with supporting affidavitPay interim orders promptly; arrears can lead to arrest and colour the final hearing

The provision today

From 1 July 2024, applications of this kind are filed under Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023, which reproduces Section 125 CrPC with the same classes of claimants — wives, children and parents — and the same remedial purpose. Pending proceedings instituted under the old Code continue under it, which is why this revision was decided under Section 125. The substantive law the judgment applies — proof of inability, determination of income, the affidavit regime — is identical under both provisions.

The revision was allowed in part: the final order of Rs. 25,000 was set aside, but the husband\'s liability was not extinguished — the matter returns to the Magistrate for a fresh, evidence-based determination with interim maintenance of Rs. 10,000 per month running meanwhile.

Frequently Asked Questions

Why was the maintenance order set aside?

The Family Court fixed Rs. 25,000 per month without determining what the husband actually earned. The High Court held that a husband's absence or failure to cross-examine does not relieve the court of its duty to assess income on material; maintenance proceedings are not, in the Court's words, a tool of punishment to the husband. The order was therefore unsustainable on quantum.

Does the wife have to prove anything in a Section 125 case?

Yes. The provision protects a wife who is unable to maintain herself. The High Court reiterated that the claimant must establish that inability — her qualifications, earning capacity, income and assets are all relevant — even in an uncontested proceeding. The Court also noted the unexplained delay of several years in filing the claim as a factor calling for explanation.

What happens on remand?

Both parties must file affidavits of assets and liabilities in line with Rajnesh v. Neha, adduce evidence, and the Magistrate must complete the trial without unnecessary adjournments. Pending the fresh decision, the husband must pay Rs. 10,000 per month by the 7th of each month; amounts already paid are adjustable against the final determination.

Does this ruling apply in Delhi?

The decision is of the Calcutta High Court, but it applies principles the Supreme Court laid down in Rajnesh v. Neha and Kiran Jyot Maini — the affidavit-of-assets regime and the duty to determine income — which bind maintenance courts across India, including the Family Courts of Delhi dealing with petitions under Section 144 BNSS.

Note: This article is general information about the law and is not legal advice. It does not create an advocate-client relationship. The position stated is as at 15 October 2026 and may have changed since. Readers should verify any provision or decision referred to against the official text and seek advice on their own circumstances.