Criminal Revision is filed under Section 438/442 of the Bhartiya Nagarik Suraksha Sanhita 2023 (hereinafter referred as “B.N.S.S”) (erstwhile Section 397/401 of Criminal Procedure Code 1973), against final orders, and in such revision, the legality, propriety and the correctness of the order is challenged. Orders under Section 144 of B.N.S.S (erstwhile Section 125 of the CrPC) are challenged before the High Court by filing a Criminal Revision.
Chapter X of the B.N.S.S. provides for order for maintenance of wives, children, and parents. Section 144 provides for order for maintenance of wives, children and parents. Section 145 provides for the procedure respecting the proceedings under Section 144 of B.N.S.S. Section 146 provides for Alteration in Allowance on proof of a change in the circumstances of a person. Section 147 provides for enforcement of orders of maintenance.
The basic purpose of the maintenance proceedings is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. Hence, the dominant purpose behind the benevolent provisions under Section 144 BNSS/ Section 125 CrPC is that the wife, children, and parents should not be left in a helpless state of distress, destitution, starvation.
It is pertinent to mention here that the Sections 125 of CrPC and Section 144 B.N.S.S are identically worded and therefore, no legal position is the same as it was before.
ESSENTIALS OF SECTION 144 of B.N.S.S
Section 144 of B.N.S.S / Section 125 CrPC provide that there are only 4 specific kinds of people who can avail the remedy:
- Wife
- Legitimate or illegitimate child, whether married or not
- Legitimate or illegitimate child who has attained majority (not a married daughter) only if such child is by reason of physical or mental abnormality or injury unable to maintain itself
- Father or mother
The conditions for wife, child who is not major, and father or mother are that they must be unable to maintain themselves. However, in the case of Child who has attained majority, married daughter is completely excluded from this, and such major child can only seek maintenance if they are unable to maintain themselves by reason of physical or mental abnormality or injury.
It is further important to note here that any person who may have obtained a divorce or has been divorced by her husband, and has not remarried shall also be considered as Wife.
Essentials of Section 144 of BNSS (erstwhile Section 125 CrPC)
Section 144 BNSS/ Section 125 CrPC has certain essentials which are being stated below:
- Person from whom maintenance is claimed that sufficient means to maintain the person claiming maintenance
- Neglect or refusal to Maintain must be shown
- Person claiming maintenance must be unable to maintain herself
- Wife to not live in adultery
- Just ground to exist for wife for refusal to live with her husband
- Not to live separately by mutual consent
Factors for determination of Quantum of Maintenance –
The Hon’ble Apex Court in the landmark judgment of Rajnesh Vs. Neha laid down criteria for determining quantum of maintenance.
- status of the parties;
- reasonable needs of the wife and dependant children;
- whether the applicant is educated and professionally qualified;
- whether the applicant has any independent source of income;
- whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home;
- whether the applicant was employed prior to her marriage;
- whether she was working during the subsistence of the marriage;
- whether the wife was required to sacrifice her employment opportunities for nurturing the family, child rearing, and looking after adult members of the family;
- reasonable costs of litigation for a non-working wife
Other additional factors are –
- Age and employment of the parties
- Right to residence
- Where wife is earning some income
- Maintenance of minor children
- Serious Disability or ill-health
Grounds that can be taken in Revision Proceedings to challenge the maintenance order
Revision Proceedings are instituted under Section 438/442 of BNSS to highlight the illegality, impropriety, and incorrectness of the order.
A revision is maintainable against the order of maintenance as well as interim maintenance. It has been held that the order of interim maintenance is not an interlocutory order and hence, a revision is maintainable. However, some High Courts have held to the contrary, and therefore, an analysis must be done before challenging interim maintenance before the High Court by means of revision petition.
A revision is maintainable if the maintenance order is bad in law, and any of the ingredients of Section 144 BNSS/125 CrPC are not satisfied and the learned magistrate has overlooked the same.
Furthermore, it is settled law that the finding of magistrate on disputed questions of fact recorded after full consideration of evidence should not be disturbed by revisional court in absence of any error of law.
It is important that all grounds for illegality in the order must be taken and therefore, the grounds must be well-researched and pleaded properly for the relief under this petition. Moreover, pressing the right grounds is very important as per the facts and circumstances of the case.