Matrimonial and criminal proceedings often travel together: the same household that produces a maintenance application under Section 144 of the BNSS may also produce an FIR that puts the husband in judicial custody. When that happens, two apparently irreconcilable propositions collide — a person in custody usually earns nothing, and a wife and children without support cannot be told to wait for the criminal trial. This explainer sets out how the maintenance forum actually deals with an incarcerated respondent, at the interim stage, at the final stage, and at enforcement.
Two principles that frame everything
The first principle is that maintenance under Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 — the successor to Section 125 CrPC — is a measure of social justice: it exists to prevent destitution, and the dependants’ need does not diminish because the earner is in custody. The second is that the statute reaches a person who, “having sufficient means, neglects or refuses to maintain” — so the respondent’s means remain the touchstone. Incarceration is relevant precisely because, and only to the extent that, it affects means. The analysis is factual, not categorical.
Earning capacity versus present earnings
Courts distinguish between a respondent whose only asset was his monthly wage — for whom custody may genuinely reduce capacity to near zero — and a respondent with property, business interests, rental streams or family wealth that continue regardless. The affidavit of assets and liabilities, which both parties must file in maintenance proceedings, is where this battle is fought:
Pre-custody income record. Salary slips, ITRs and bank statements from before the arrest establish the baseline capacity to which the respondent will presumptively return on release.
Non-wage assets. Land, shops, vehicles deployed commercially, deposits and investments generate means that custody does not interrupt. These sustain an award even during incarceration.
The custody period itself. Genuine incapacity during a long custody, for a wage-dependent respondent, is a legitimate factor — typically addressed by moderating the interim figure or by structuring arrears rather than by denying maintenance outright.
Managing the proceeding while the respondent is inside
A conviction or acquittal in the criminal case between the parties does not by itself decide maintenance. The maintenance forum applies its own standard to its own question — neglect and means — though findings of fact from the criminal trial can be relevant material.
The strategic picture for both sides
For the applicant wife, the core discipline is to litigate the means, not the man: build the record of assets and pre-custody income, and resist the framing that jail equals inability. For the respondent, credibility is the asset that matters most — a candid affidavit, a timely alteration application for the custody window, and token compliance where any capacity exists will earn a moderated order; concealment followed by pleas of poverty will earn an adverse inference and an award assessed on imputed income. Maintenance courts see the incarcerated respondent regularly; what they reward, on either side of the aisle, is documentation over drama.
This article is for general information only and is not legal advice or a solicitation.
Frequently Asked Questions
Does imprisonment automatically suspend a maintenance order?
No. An existing order continues to operate and arrears accrue unless the respondent obtains an alteration. The route is an application under Section 146 of the BNSS pleading the changed circumstance; courts may reduce or suspend prospectively for the custody period, but silence and non-payment simply build an enforceable arrear.
Can maintenance be awarded against a man who is in custody and earning nothing?
It can. Maintenance is assessed on means and earning capacity, not only current wages, and courts examine assets, rental income, agricultural land, business interests and family resources that survive incarceration. A respondent with property but no salary is not a man without means.
What should the wife’s side do when the respondent is jailed mid-proceedings?
Ensure service through the jail superintendent so proceedings are not derailed, press the interim application on the record of assets and pre-custody income, and document the family’s needs independently. Custody explains the respondent’s absence; it does not answer the application.
Can arrears accrued during custody be enforced after release?
Yes. Arrears are recoverable, and the enforcement machinery — including warrants for levying amounts due — applies. The respondent’s protection lies in seeking timely alteration for the custody period, not in ignoring the order; sentences for default and liability for arrears are distinct questions.