7.4 Maintenance under Section 144 BNSS & Inherent Powers under Section 528

7.4 Maintenance under Section 144 BNSS & Inherent Powers under Section 528

[!NOTE] Social Justice & Inherent Equities: The Bharatiya Nagarik Suraksha Sanhita, 2023 harmonizes punitive criminal justice with social welfare and judicial integrity. Chapter X (Sections 144 to 147 BNSS) operationalizes a secular, summary remedy against vagrancy and destitution, guaranteeing economic dignity to vulnerable family dependants. Simultaneously, Section 528 BNSS acts as the apex supervisory safety valve, preserving the High Court's plenary inherent powers to prevent abuse of the process of any criminal court and secure the ends of justice.

---

1. Maintenance of Wives, Children and Parents (Chapter X Sections 144–147)

Section 144 BNSS (corresponding to Section 125 of CrPC 1973) establishes a quasi-civil, summary, and preventive statutory remedy. As held in Chaturbhuj v. Sita Bai ((2008) 2 SCC 316) and Biman Das v. Gita Das ((2003) 1 Gau LR 289), the object of maintenance proceedings is not to penalize the respondent for past neglect, but to prevent vagrancy, destitution, and homelessness by providing immediate economic sustenance.

Foundational Statutory Ingredients of Section 144(1) BNSS

To sustain an order of maintenance under Section 144 BNSS, four foundational elements must be established:

1. The respondent possesses sufficient means (interpreted broadly to include earning capacity, physical health of an able-bodied man, and tangible assets);
2. The respondent has neglected or refused to maintain the applicant;
3. The applicant belongs to one of the statutorily recognized categories of dependents; AND
4. The applicant is unable to maintain himself or herself.

                  STATUTORY DEPENDENTS UNDER SECTION 144(1) BNSS
                                        │
     ┌─────────────────────┬────────────┴────────────┬─────────────────────┐
     ▼                     ▼                         ▼                     ▼
   Wife               Minor Child              Disabled Adult Child      Father / Mother
  Legitimate wife    Legitimate or            Legitimate/illegitimate   Father or mother
  or divorced wife   illegitimate, married    (not married daughter)    unable to maintain
  until remarriage.  or unmarried.            with mental/physical infirmity. himself/herself.

The Expansive Definition of 'Wife'

• Under Explanation (b) to Section 144(1) BNSS, "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
• In Shabana Bano v. Imran Khan ((2010) 1 SCC 175), the Supreme Court affirmed that a divorced Muslim woman is entitled to claim maintenance under this secular procedural provision for as long as she does not remarry, even after the expiration of the iddat period, transcending personal law barriers.

Interim Maintenance & The 60-Day Mandate [Section 144(1) Third Proviso]

Under the third proviso to Section 144(1) BNSS (formerly second proviso to Section 125(1) CrPC):

• The Magistrate may, during the pendency of the proceeding, order the respondent to pay a monthly allowance for the interim maintenance of the applicant and the expenses of proceeding.
• Mandatory Disposal Ceiling: An application for interim maintenance and expenses of proceeding shall, as far as possible, be disposed of within sixty (60) days from the date of the service of notice of the application to such person.

Quantum Guidelines: Rajnesh v. Neha ((2020) 13 SCC 51)

The BNSS prescribes no ceiling on the monthly allowance awardable by the Magistrate. In Rajnesh v. Neha, the Supreme Court issued comprehensive nationwide guidelines:

1. Affidavit of Assets and Liabilities: Both parties are mandatorily required to submit uniform affidavits disclosing their comprehensive income, assets, liabilities, and standard of living.
2. Standard of Living: The wife is entitled to live with the same degree of comfort and financial security that she enjoyed in her matrimonial home.
3. Date of Enforcement: Maintenance shall be awarded from the date of filing of the application, establishing uniformity across all courts.

---

Statutory Disentitlement of Wife (Section 144(4) & (5) BNSS)

Under Section 144(4) BNSS, a wife is strictly disentitled to receive maintenance or interim maintenance from her husband under three exhaustive statutory conditions:

Under Section 144(5) BNSS, on proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.

---

Alteration & Enforcement of Maintenance Orders (Sections 146 & 147 BNSS)

Alteration in Allowance (Section 146 BNSS / CrPC 127)

On proof of a change in the circumstances of any person receiving or ordered to pay a monthly allowance under Section 144, the Magistrate may make such alteration in the allowance as he thinks fit. Furthermore, where any civil court decree resolves marital status or maintenance, or where a divorced woman has received statutory or customary dues, the Magistrate shall cancel or vary the order accordingly.

Enforcement of Maintenance Order (Section 147 BNSS / CrPC 128 & Section 144(3))

• Levy of Fine / Distress Warrant [Section 144(3) BNSS]: If the person ordered fails without sufficient cause to comply with the order, the Magistrate may, for every breach, issue a warrant for levying the amount due in the manner provided for levying fines.
• Imprisonment for Default: The Magistrate may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one (1) month or until payment if sooner made (Shahada Khatoon v. Amjad Ali, (1999) 5 SCC 672).
• Strict Statutory Limitation Period [Section 144(3) First Proviso / Section 147]:

  "Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due."

---

2. Inherent Powers of the High Court under Section 528 BNSS (CrPC 482)

Section 528 BNSS (corresponding identically to Section 482 of CrPC 1973) preserves the inherent constitutional authority of the High Court:

"Nothing in this Sanhita shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Sanhita, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."

Exclusivity to High Courts

In Bindeshwari Prasad Singh v. Kali Singh ((1977) 1 SCC 57) and Adalat Prasad v. Rooplal Jindal ((2004) 7 SCC 338), the Supreme Court ruled that subordinate criminal courts (Judicial Magistrates and Sessions Judges) possess no inherent powers whatsoever. Magistrates are creatures of statute whose powers are strictly circumscribed by the four corners of the Sanhita. Only High Courts possess inherent powers.

The Three Statutory Pillars of Section 528 BNSS

Inherent powers can be invoked exclusively for three statutory purposes:

1. To give effect to any order under the Sanhita;
2. To prevent abuse of the process of any Court; or
3. Otherwise to secure the ends of justice.

---

Quashing of Proceedings: The Bhajan Lal Principles

In the landmark judgment of State of Haryana v. Bhajan Lal (1992 Supp (1) SCC 335), the Supreme Court articulated seven illustrative categories where the High Court should exercise its extraordinary inherent powers to quash an FIR or criminal complaint:

1. Where the allegations in the FIR or complaint, even if taken at face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused.
2. Where the allegations do not disclose a cognizable offence justifying police investigation under Section 175 BNSS.
3. Where the uncontroverted allegations and evidence collected do not disclose the commission of any offence.
4. Where the offences alleged are non-cognizable and investigated by police without a Magisterial order under Section 174(2) BNSS.
5. Where the allegations are so absurd and inherently improbable that no prudent person could ever reach a just conclusion that there is sufficient ground for proceeding.
6. Where there is an express legal bar engrafted in any provision of the Code or applicable Act (e.g., limitation under Section 514 BNSS or bar of cognizance under Section 215 BNSS).
7. Where a criminal proceeding is manifestly attended with mala fides or maliciously instituted with an ulterior motive for wreaking vengeance on the accused.

Compromise Quashing in Non-Compoundable Offences

In Gian Singh v. State of Punjab ((2012) 10 SCC 303) and State of M.P. v. Laxmi Narayan ((2019) 5 SCC 688), the Supreme Court harmonized Section 528 inherent powers with the statutory compounding table under Section 359 BNSS (CrPC 320):

• Permitted: The High Court may quash non-compoundable proceedings arising out of commercial, financial, mercantile, partnership, or matrimonial disputes where the wrong is essentially private and personal, and parties have amicably resolved their differences.
• Strictly Prohibited: The High Court cannot quash heinous and serious offences affecting society at large (such as murder under Section 101 BNS, rape under Section 64 BNS, dacoity, POCSO offences, or corruption) on the basis of a compromise between the accused and the victim.

[!CAUTION] Judicial Restraint under Neeharika Infrastructure: In Neeharika Infrastructure Pvt Ltd v. State of Maharashtra ((2021) 19 SCC 401), a 3-Judge Bench held that the High Court should not thwart investigations at the threshold. Blanket orders of "no coercive steps" or stay of investigation should not be granted routinely without examining the Bhajan Lal criteria.

---

Practical Exam Traps & Maharashtra Subordinate Judiciary Tips