Maintenance and interim maintenance: the three routes

The three routes, and which one to use

These are three different statutes, three different courts and three different sets of consequences. They are not alternatives you must choose between — they can be pursued at the same time, subject to the adjustment rules further down this page — but they suit different situations, and picking the wrong one costs months.

The first practical question is whether a matrimonial petition already exists. Section 24 of the Hindu Marriage Act only operates inside a pending proceeding under that Act. If no divorce, nullity, judicial separation or restitution petition is on file, Section 24 is not available to you at all — and that is precisely the situation in which Section 125 CrPC, now Section 144 BNSS, is the right tool, because it stands entirely on its own.

What the court actually weighs: the Rajnesh v. Neha criteria

In Rajnesh v. Neha, (2021) 2 SCC 324, the Supreme Court gathered the law on maintenance into a single set of directions binding on every Family Court, District Court and Magistrate’s Court in the country. It began by saying what it would not do: there is no straitjacket formula for fixing the quantum of maintenance. What it gave instead was a list of factors, expressly non-exhaustive, and a purpose — that the dependent spouse is not reduced to destitution or vagrancy because the marriage failed, and that maintenance is not a punishment of the other spouse.

The Court framed the test as a balance between the financial status of the respondent and the standard of living to which the applicant was accustomed in the matrimonial home. The amount must be neither so extravagant as to be oppressive and unbearable for the respondent, nor so meagre that it drives the applicant to penury — the sufficiency of the sum is judged by whether the applicant can maintain themselves with reasonable comfort.

The percentages people quote, and what they are actually worth

Two numbers circulate constantly in discussions of Indian maintenance, and both are routinely misdescribed as rules. Neither is one. It is worth being precise about what each actually is, because negotiating against a misunderstood figure is how people end up agreeing to the wrong number.

The first is twenty-five per cent of the husband’s net salary. That comes from a decision in which the Supreme Court held, on the facts before it, that such a proportion would be just and proper for that wife — and in the same breath reduced the sum awarded, because the husband had remarried and had a child from the second marriage. It is a decision on its own facts that has since been widely cited. It is not statutory, it is neither a ceiling nor a floor, and courts award both more and less.

The second is that a one-time settlement runs to a fifth or a third of the paying spouse’s net worth. No judgment establishes that. It is a description of what negotiated settlements have tended to look like — a negotiating reference point, not an entitlement and not a proposition of law.

Neither figure is a formula, and neither is treated as one anywhere on this site. The maintenance calculator here deliberately applies no percentage of anything to anything: it models your household budget instead, because that is the material a court can actually work with.

From what date maintenance runs, and how arrears are recovered

The Supreme Court settled a question that had divided courts for years: maintenance in all cases is awarded from the date of filing the application, not from the date of the order. That single direction is worth more to an applicant than most of what else is on this page, because maintenance applications routinely take a year or more to decide, and a delaying respondent used to profit from the delay. Now they do not — every month the application is pending is a month of arrears accruing.

It also means the date you file is a decision. If you are going to claim, claim now. A claim filed in March and decided the following June carries fifteen months of arrears; the same claim filed in September carries nine.

The Court also directed how orders are to be enforced. A maintenance order may be enforced under Section 28A of the Hindu Marriage Act, Section 20(6) of the Domestic Violence Act, or Section 128 of the Code of Criminal Procedure — now Section 147 of the BNSS — and may be executed as a money decree of a civil court under the Code of Civil Procedure, including Sections 51, 55, 58 and 60 read with Order XXI.

Overlapping claims: how the courts avoid paying twice

It is lawful to claim maintenance under more than one statute at once, and many people do — a Section 125 application in the Magistrate’s Court, monetary relief under the Domestic Violence Act, and Section 24 in the divorce. The Supreme Court in Rajnesh v. Neha addressed the obvious problem this creates, and its directions are strict.

Three things follow. Where a successive claim is made under a different statute, the court considers an adjustment or set-off of the amount awarded in the earlier proceeding while deciding whether any further sum should be awarded. It is mandatory for the applicant to disclose the earlier proceeding and the orders passed in it when making the subsequent claim. And where an existing order needs to be modified or varied, that has to be done in the same proceeding that passed it — not by a fresh application elsewhere.

The practical consequence is that overlapping orders are not cumulative. A respondent paying ₹30,000 under a Domestic Violence Act order does not then pay a further ₹30,000 under Section 24; the second court adjusts. Concealing the first order does not produce a windfall — it produces a false statement on record, which is the worst possible position to be in when the whole question is who is being truthful about money.

The affidavit of disclosure: mandatory, and the fastest thing you control

Rajnesh v. Neha directs that the Affidavit of Disclosure of Assets and Liabilities annexed to the judgment be filed by both parties in all maintenance proceedings, including proceedings already pending, throughout the country. Three formats were prescribed: Enclosure I for non-agrarian deponents, Enclosure II for agrarian deponents, and Enclosure III for the State of Meghalaya.

The procedural directions attached to it are the ones that decide how fast your application moves. The respondent has a maximum of four weeks to file a reply with their affidavit, and courts were directed not to grant more than two adjournments for it. Where the respondent delays wilfully, the court may strike off their defence. And if the affidavit is not filed, the court may decide the maintenance application on the basis of the applicant’s affidavit alone.

Read that last sentence again from the applicant’s side. Filing a complete, documented affidavit of your own is not merely a formality — it is the document the court may end up deciding on. From the respondent’s side, the same directions mean that stalling is the one strategy guaranteed to make the outcome worse.

• Both parties file. It is not a document the claimant alone produces.
• Attach what each part asks for: salary slips, Form 16, income tax returns for the year before the marriage, the year before separation and the current year, and bank statements for the last three years.
• Where a declaration is disputed, either party may seek interrogatories and the production of documents under Order XI of the Code of Civil Procedure.
• A false statement can attract proceedings for perjury under Section 340 of the Code of Criminal Procedure and for contempt of court.
• Parties below the poverty line, in the economically weaker section, or working as casual labourers are exempt from the requirement.

When the claimant is earning: what the courts have actually held

This is the most contested point in most maintenance hearings, and the law on it is more settled than the argument suggests. The short position is that earning some income does not bar a claim; the question is whether that income is sufficient to maintain the applicant in accordance with the standard of living of the matrimonial home.

The Supreme Court has held that merely being capable of earning is not a sufficient ground to reduce maintenance awarded by a Family Court — what has to be determined is whether the applicant’s actual income is enough to maintain herself in accordance with her husband’s lifestyle in the matrimonial home. It has also held that a wife having some income is not by itself a ground to reject her claim, and that sustenance does not mean, and cannot be allowed to mean, mere survival.

The mirror principle applies to the payer. An able-bodied husband is presumed capable of earning enough to maintain his wife and children, and cannot simply assert that he is unable to. The onus is on him to establish with material that there are sufficient grounds showing he cannot discharge his obligations for reasons beyond his control. Where he does not disclose his exact income, the court may draw an adverse inference — and courts have said openly that some guesswork is not ruled out when the true sources are not disclosed.

After the decree: permanent alimony under Section 25

Section 24 stops when the proceeding ends. What follows a decree is Section 25 — permanent alimony and maintenance — which the court may order at the time of passing the decree or at any time afterwards, on the application of either party. It may be a gross sum or a monthly or periodical sum, and the court may secure it by a charge on the respondent’s immovable property.

Two sub-sections matter for anyone agreeing a settlement. Section 25(2) allows either party to apply for variation, modification or rescission if there is a change in circumstances. Section 25(3) allows the court to vary, modify or rescind an order where the party in whose favour it was made has remarried or, in the case of a wife, has not remained chaste, or in the case of a husband, has had sexual intercourse with any woman outside wedlock.

That is why the structure of a settlement matters so much. A one-time lump sum, paid and acknowledged in full and final settlement, closes the subject. A periodic figure stays open to variation on both sides for as long as it runs.