The Tripartite Maintenance Dilemma: Navigating Section 125 CrPC (Sec 144 BNSS), Section 24 HMA & Section 20/22 PWDVA Simultaneously

06 - The Tripartite Maintenance Dilemma: Navigating Section 125 CrPC (Sec 144 BNSS), Section 24 HMA & Section 20/22 PWDVA Simultaneously

Published by: Sumanjari & Co. Advocates

Section 1: Executive Overview & Practical Reality

One of the most vexatious and strategically intricate aspects of Indian family law practice is the phenomenon of simultaneous, multi-forum maintenance litigation. In contemporary matrimonial warfare across Uttar Pradesh and Northern India, a husband rarely faces a single maintenance claim. Instead, an aggrieved spouse almost invariably initiates three parallel claims across three distinct judicial forums: an application under Section 125 of the Code of Criminal Procedure, 1973 (CrPC) / Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) before the Family Court; an interim maintenance application under Section 24 of the Hindu Marriage Act, 1955 (HMA) within substantive divorce or restitution proceedings; and a monetary relief petition under Section 20 and 22 of the Protection of Women from Domestic Violence Act, 2005 (PWDVA) before the Judicial Magistrate.

The practical reality in District Courts is chaotic. Different judges possess varying judicial temperaments, distinct evidentiary speeds, and differing standards for determining interim sustenance. Unscrupulous litigants leverage this fragmented jurisdiction to suppress prior proceedings, conceal earlier interim awards, and secure overlapping, cumulative maintenance orders that frequently exceed the husband's total monthly net earnings. A husband earning Rs. 80,000/- per month may suddenly find himself saddled with an order of Rs. 30,000/- under Section 125 CrPC, another Rs. 25,000/- under Section 24 HMA, and an additional Rs. 25,000/- under the DV Act, facing civil imprisonment and salary attachment in multiple execution courts simultaneously.

Navigating this tripartite dilemma requires mastery over the harmonizing jurisprudence formulated by the Supreme Court of India in the watershed precedent of Rajnesh v. Neha (2021) 2 SCC 324. Litigants and defense counsel must execute a synchronized defense strategy rooted in mandatory statutory disclosures, immediate judicial set-off applications, and invoking the doctrine of adjustment to ensure that multiple proceedings do not culminate in extortionate double jeopardy.

Section 2: Statutory & Legislative Architecture

Understanding the tripartite maintenance matrix requires analyzing the distinct philosophy, jurisdiction, and procedural mechanism of each governing statute:

• Section 144 BNSS, 2023 (formerly Section 125 CrPC, 1973): A summary, secular, and quasi-criminal remedy designed to prevent vagrancy and destitution. Under Section 144(1) BNSS, any person having sufficient means who neglects or refuses to maintain his wife (unable to maintain herself), legitimate or illegitimate minor children, or infirm parents may be ordered by a Magistrate / Family Court Judge to pay a monthly allowance. The third proviso to Section 144(1) mandates the disposal of interim applications within sixty days of service of notice. Crucially, Section 144(4) BNSS creates an absolute statutory bar: no wife shall be entitled to receive maintenance if she is living in adultery, or without sufficient reason refuses to live with her husband, or if they are living separately by mutual consent.
• Section 24 of the Hindu Marriage Act, 1955 (HMA): A purely civil, gender-neutral matrimonial remedy pendente lite. Either the wife or the husband may apply under Section 24 if they establish that they have no independent income sufficient for their support and the necessary expenses of the proceeding. The quantum under Section 24 is tethered to litigation expenses and temporary sustenance during the pendency of the main petition (divorce, restitution, or judicial separation).
• Sections 20, 22 & 23 of the PWDVA, 2005: A civil-remedial code within a magistrate's criminal jurisdiction. Section 20 empowers the Magistrate to direct the respondent to pay monetary relief to meet expenses incurred and losses suffered as a result of domestic violence, including maintenance for the aggrieved woman and her children. Section 22 provides for compensation for emotional distress, and Section 23 empowers the passing of ex-parte interim orders.
• The Harmonization Rule under Rajnesh v. Neha: The Supreme Court authoritatively resolved statutory conflict by holding that while applications across multiple statutes are legally maintainable, the applicant is under an absolute legal duty to disclose all previous proceedings and orders. The court passing a subsequent order is legally bound to adjust and set off amounts awarded in previous proceedings.

Section 3: Landmark Judicial Precedents

The governing principles regulating multiple maintenance claims have been settled through authoritative decisions of the Supreme Court of India and the Allahabad High Court:

• Rajnesh v. Neha & Anr. (2021) 2 SCC 324 (Supreme Court of India - 2-Judge Bench): The magnum opus on Indian maintenance jurisprudence. Justice Indu Malhotra formulated comprehensive national directions: (i) Mandatory filing of an exhaustive Affidavit of Assets and Liabilities by both parties in all maintenance proceedings; (ii) Overlapping maintenance must be explicitly declared, and the court passing a subsequent maintenance order must mandatorily take into account and adjust the amount awarded in previous proceedings; (iii) Maintenance must be awarded from the date of the application, not the date of order; (iv) Clear criteria established for determining quantum, including status of parties, reasonable needs, earning capacity, and independent assets.
• Sangeeta Balkrishna Teltumbde v. Balkrishna Dattatrya Teltumbde (2002) SCC OnLine Bom 1261: Established that while the wife can institute multiple maintenance claims, she cannot execute multiple orders to enjoy aggregate cumulative recovery. The husband is entitled to adjustment of the sum paid in one court against the liability imposed in another.
• Kavita Prasad v. Ram Ashray Prasad (2017) SCC OnLine Del 11520: Reaffirmed that deliberate suppression of pre-existing maintenance orders or financial earnings amounts to playing fraud on the court, dis-entitling the claimant to discretionary interim relief and exposing them to perjury proceedings under Section 340 CrPC (Section 379 BNSS).
• Rakesh Malhotra v. Krishna Malhotra (2020) SCC OnLine SC 239: Clarified that an order under Section 125 CrPC is a summary measure and does not extinguish or bar the jurisdiction of the civil court under personal laws; however, judicial comity mandates set-off to prevent double recovery.
• Chaturbhuj v. Sita Bai (2008) 2 SCC 316 (Supreme Court of India): Held that the test under Section 125 CrPC is whether the wife is in a position to maintain herself in the manner she was accustomed to in the matrimonial home; "unable to maintain herself" does not mean living in absolute destitution, but financial independence of the wife must be rigorously weighed.

Section 4: Stage-by-Stage Litigation Roadmap

When confronted with simultaneous maintenance claims, defense counsel must execute the following structured protocol:

Section 5: Tactical Offenses, Defenses & Critical Pitfalls to Avoid

Core Tactical Defenses

• The Mandatory Set-Off Plea: In every court where a maintenance claim is pending, make an explicit, certified averment in the preliminary objections: "The Respondent is currently paying Rs. X per month pursuant to order dated [Date] passed in Case No. [Number] by [Court]. In terms of the law declared by the Supreme Court in Rajnesh v. Neha, any award passed herein must be directed to be adjusted and credited against the said pre-existing order." This legally restricts the subsequent court from awarding cumulative amounts.
• The Mandatory Salary Deduction Distinction: Courts frequently look at "gross CTC" rather than net liquid income. Litigants must clearly separate statutory non-discretionary deductions (Provident Fund, Income Tax, Professional Tax, Health Insurance) from voluntary deductions (car loans, voluntary savings schemes). Courts determine quantum exclusively on net disposable income (Kalyan Dey Chowdhury v. Rita Dey Chowdhury).
• Invoking the Section 144(4) BNSS Bar: Where evidence (CCTV, audio transcripts, WhatsApp chats) proves that the wife voluntarily walked out of the matrimonial home without reasonable cause or refuses cohabitation without justification, assert the absolute statutory bar under Section 144(4) BNSS (Section 125(4) CrPC).

Critical Pitfalls to Avoid

• Suppressing Parallel Awards: Concealing that another court has awarded maintenance is viewed as fraud upon the court. Litigants who conceal awards face immediate rejection of defenses and potential perjury prosecution.
• Voluntary Resignation to Defeat Maintenance: Resigning from employment or claiming sudden unemployment after marital breakdown triggers the judicial doctrine of "imputed earning capacity." Courts will assess maintenance based on educational qualifications and past professional earning history (citing Jitesh Sharma v. Pooja Sharma).
• Defaulting on Interim Maintenance During Trial: Defaulting on interim maintenance orders leads to immediate striking off of defense in matrimonial cases (Rajnesh v. Neha). Always deposit admitted/adjusted amounts under protest and challenge excessive quantum via High Court revision.

Section 6: Ready-to-Use Court Drafting Template

Below is an unabridged, ready-to-use legal drafting model of an Application for Adjustment and Set-Off of Overlapping Maintenance Orders under the Guidelines of Rajnesh v. Neha filed before the Family Court in Section 125 CrPC / Section 144 BNSS proceedings:

IN THE COURT OF THE PRINCIPAL JUDGE, FAMILY COURT

LUCKNOW, UTTAR PRADESH

CASE NO. 342 OF 2026

(Under Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023)

IN THE MATTER OF:

Smt. Neha Srivastava ... Applicant / Wife

Versus

Shri Abhishek Srivastava ... Respondent / Husband

APPLICATION ON BEHALF OF THE RESPONDENT UNDER SECTION 144 OF BNSS, 2023 READ WITH SECTION 151 OF CPC AND THE BINDING DIRECTIVES OF THE HON'BLE SUPREME COURT IN RAJNESH V. NEHA PRAYING FOR ADJUSTMENT AND SET-OFF OF PRIOR MAINTENANCE AWARDS

MOST RESPECTFULLY SHEWETH:

1. That the Applicant has instituted the present proceeding under Section 144 of BNSS, 2023 claiming monthly maintenance of Rs. 45,000/- per month from the Respondent.

2. That the Respondent has entered appearance and filed his comprehensive Affidavit of Assets and Liabilities in strict compliance with the format formulated by the Hon'ble Supreme Court of India in Rajnesh v. Neha (2021) 2 SCC 324.

3. That the Respondent respectfully brings to the judicial notice of this Hon'ble Court that the Applicant has instituted parallel proceedings against the Respondent in two other competent forums:

(a) Proceedings under PWDVA, 2005: Misc. Criminal Case No. 112/2026 pending before the Additional Chief Judicial Magistrate-V, Lucknow, wherein vide order dated 14th March 2026, the learned Magistrate was pleased to grant an interim monetary relief of Rs. 15,000/- per month under Section 20 PWDVA. A certified copy of the said order is annexed herewith as Annexure R-1.

(b) Proceedings under Section 24 of Hindu Marriage Act, 1955: Misc. Application No. 28/2026 in Matrimonial Suit No. 514/2025 (Abhishek Srivastava v. Neha Srivastava) pending before Additional Principal Judge-II, Family Court, Lucknow, wherein vide order dated 22nd May 2026, an interim maintenance of Rs. 12,000/- per month was awarded. A certified copy of the said order is annexed herewith as Annexure R-2.

4. That the Respondent is faithfully and scrupulously complying with both the aforesaid judicial directions, depositing a total cumulative sum of Rs. 27,000/- (Rupees Twenty-Seven Thousand) per month directly into the bank account of the Applicant. The certified bank transaction receipts evidencing payment up to the current month are collectively annexed as Annexure R-3.

5. That the net take-home salary of the Respondent, after statutory deductions of Income Tax and mandatory Provident Fund, is Rs. 72,400/- per month, as evidenced by his salary slips and Form 16 (Annexure R-4). If the Applicant's claim in the present proceeding is granted without adjustment, the total maintenance liability will exceed 95% of the Respondent's net disposable income, rendering his survival impossible.

6. That in Rajnesh v. Neha (2021) 2 SCC 324 (at Paragraphs 56–62), the Hon'ble Supreme Court has explicitly laid down the governing law regarding overlapping maintenance as under:

"It is well settled that while there is no bar to seeking maintenance under multiple statutes, the court must adjust the maintenance awarded in one proceeding while determining maintenance in a subsequent proceeding. The applicant must disclose all prior proceedings and orders. The court passing the subsequent order shall take into account the maintenance awarded in the previous proceeding, and make an adjustment to that effect, so that the husband is not burdened with overlapping and multiple orders of maintenance."

7. That in view of the settled law, the Respondent is entitled to complete adjustment and credit of the sum of Rs. 27,000/- per month already being paid by him under the orders of the ACJM Court and the Civil Family Court.

PRAYER:

It is therefore most respectfully prayed that this Hon'ble Court may graciously be pleased to:

(a) Take on record the certified copies of the prior maintenance orders and bank payment receipts (Annexures R-1 to R-3);

(b) Direct that any interim or final maintenance determined in the present proceeding under Section 144 BNSS shall be strictly subject to complete set-off and adjustment against the sums of Rs. 15,000/- per month paid under PWDVA and Rs. 12,000/- per month paid under Section 24 HMA;

(c) Pass such other and further orders as this Hon'ble Court may deem fit and proper in the interest of justice.

RESPONDENT (ABHISHEK SRIVASTAVA)

Through Legal Counsel:

SUMANJARI & CO. ADVOCATES

Chambers: Chamber No. D-311, Block D, Allahabad High Court, Lucknow Bench

Dated: [Current Date]

Place: Lucknow, Uttar Pradesh

Section 7: Practical FAQs

Q1: If a wife receives interim maintenance under Section 24 HMA, can she also execute an order under Section 125 CrPC / Section 144 BNSS for the full amount?

Answer: No. Under the Supreme Court's binding ruling in Rajnesh v. Neha, the principle of adjustment applies strictly. If Court A (under Section 24 HMA) awards Rs. 15,000/- per month, and Court B (under Section 125 CrPC / Section 144 BNSS) awards Rs. 20,000/- per month, the husband is required to pay a total of Rs. 20,000/- per month, and not Rs. 35,000/-. The payment of Rs. 15,000/- will be credited towards both orders, leaving a balance liability of only Rs. 5,000/- in Court B. If the wife attempts to execute both orders simultaneously without disclosing payments, the husband can file an objection under Section 47 CPC / Section 144(3) BNSS producing payment receipts.

Q2: What should a husband do if a Magistrate refuses to grant set-off and insists on independent payment under the DV Act?

Answer: If a Judicial Magistrate refuses to grant adjustment of prior maintenance orders passed under Section 125 CrPC or Section 24 HMA, such refusal constitutes an illegal exercise of jurisdiction in direct violation of the Supreme Court's mandate in Rajnesh v. Neha. The husband should immediately file a Criminal Appeal under Section 29 of the PWDVA before the Sessions Judge, or a petition under Article 227 of the Constitution of India / Section 528 BNSS before the Allahabad High Court (Lucknow Bench), which will stay the non-adjusted portion of the order.

Q3: Does the award of maintenance under Section 144 BNSS automatically terminate upon the dissolution of marriage by divorce?

Answer: No. Under Explanation (b) to Section 144(1) BNSS (identical to Section 125(1) CrPC), the definition of "wife" expressly includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. Therefore, an order of maintenance under Section 144 BNSS continues in full force and effect even after the grant of a divorce decree, unless the wife remarries, or the husband establishes that she has acquired independent means sufficient for her sustenance, or permanent alimony has been fully settled.

Q4: How does the court treat maintenance claims when both spouses have instituted cross-petitions for divorce?

Answer: When cross-petitions are pending, interim maintenance under Section 24 HMA is determined by evaluating the financial equilibrium of both spouses on the basis of their respective Affidavits of Assets and Liabilities. Section 24 is gender-neutral; if the husband is incapacitated or suffering from severe medical disability and the wife is gainfully employed with substantial means, the husband can legally claim maintenance pendente lite from the wife (Rani Sethi v. Sunil Sethi).

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