Maintenance is financial support one spouse is ordered to pay the other, and in some cases to children or parents. There is no statutory percentage. Courts fix a figure on the facts, weighing the paying party's income and the claimant's needs, the standard of living during the marriage, and the earning capacity of each. Orders can be interim, during the case, or permanent, at its end.
| Is there a fixed percentage? | No. Any figure quoted as a universal rule — a quarter, a third — is a rough observation from decided cases, not law |
| Four routes | Section 144 BNSS (formerly 125 CrPC); the Protection of Women from Domestic Violence Act 2005; the Hindu Adoptions and Maintenance Act 1956; and maintenance provisions within the marriage statute itself |
| Interim maintenance | Granted during the proceedings, from the date of application |
| Permanent alimony | Granted at the end, as a monthly sum or a one-time settlement |
| Who can claim | A wife; in some provisions a husband unable to maintain himself; minor children; and parents unable to maintain themselves |
| Children | Maintenance for a minor child is the obligation of both parents and does not end with the divorce |
| Enforcement | Recovery as a fine; attachment of salary and property; and in persistent default, imprisonment |
| Can it be changed? | Yes. Any order can be varied on a material change in circumstances |
Four separate routes, and why it matters which one you use
Maintenance in India is not governed by a single law. Four distinct routes exist, with different forums, different speeds and different reach. Choosing badly costs time.
| Route | Forum | Who can claim | Character |
|---|---|---|---|
| Section 144, BNSS (formerly 125 CrPC) | Magistrate | Wife, minor children, parents unable to maintain themselves | Summary and comparatively fast. The most used route |
| Protection of Women from Domestic Violence Act, 2005 | Magistrate | A woman in a domestic relationship | Monetary relief alongside protection and residence orders |
| Hindu Adoptions and Maintenance Act, 1956 | Civil court | Wife, widowed daughter-in-law, children, aged parents | A substantive civil right, slower but wider |
| Within the marriage statute | Family Court | Either spouse | Interim maintenance during the case, permanent alimony at its end |
The provision now in Section 144 of the BNSS — the old Section 125 CrPC — exists to prevent destitution, so it is deliberately summary. It does not require the claimant to prove a matrimonial wrong, and it is heard by a Magistrate rather than a civil court. That is why it is usually the fastest route to money on the table.
How a figure is actually arrived at
There is no formula. In Rajnesh v. Neha the Supreme Court set out the considerations and, importantly, required both parties to file an affidavit of assets and liabilities in every maintenance case. The factors courts weigh:
- The status of the parties and the standard of living during the marriage
- Reasonable needs of the claimant and the children
- Qualifications and employment status of both parties
- Independent income or assets held by the claimant
- Whether the claimant maintains the matrimonial home
- Dependants the paying party is already supporting
- Liabilities of the paying party, such as a genuine home loan
- Length of the marriage
- Medical and educational expenses, especially for children
The fractions you read online
You will see “one-third of net salary” or “25 per cent” quoted as if it were law. It is not. Courts in many cases have arrived at figures in that region, which is where the folklore comes from, but the statute prescribes nothing and judgments depart from it constantly. A marriage of two years with both parties earning well produces a very different outcome from a marriage of twenty years where one party left employment to run the household.
Since Rajnesh v. Neha, both sides file a sworn statement of income, assets and liabilities in a prescribed format. Understating income in that affidavit is not a tactic — it is a sworn false statement, and courts draw adverse inferences from it.
Interim maintenance: money while the case runs
A contested matrimonial case takes years. Interim maintenance exists so that the financially weaker party is not starved into a settlement in the meantime.
It is applied for early, usually along with the main petition, and decided on affidavits rather than full evidence. Because it is summary, courts take a broad view of income rather than waiting for proof to the last rupee.
From which date
Ordinarily from the date of the application, not the date of the order. This matters more than it sounds: where an application takes eighteen months to decide, arrears for that period fall due at once. Rajnesh v. Neha settled this, precisely because delay was being used as a strategy.
Priya files for divorce in Hyderabad in January and applies for interim maintenance the same month. The application is decided in September, with maintenance fixed at a monthly figure. Because the award runs from the date of application, eight months of arrears become payable immediately along with the current month. Had the award run from the date of the order, the eight months of delay would have cost her everything she was owed for that period.
Permanent alimony: monthly or one-time
At the end of the case the court may order permanent alimony — either a monthly sum or a gross one-time payment, and sometimes a transfer of property.
| Monthly maintenance | One-time settlement | |
|---|---|---|
| Can be revised later | Yes, on changed circumstances | No — it is final |
| Risk of default | Continuing | None once paid |
| Enforcement burden | Ongoing, potentially for years | Over at once |
| Ends on remarriage | Generally yes | Not applicable |
| Suits | Where the paying party's income is steady and the claimant needs ongoing support | Where both want a clean break, or where enforcement would be difficult |
Most negotiated settlements choose the lump sum, because the thing both parties want most by that stage is to never see each other in a courtroom again. That is a legitimate reason to prefer it — but understand that finality cuts both ways.
Can a husband claim maintenance?
This is asked constantly and answered wrongly in both directions. The answer depends entirely on which provision is being invoked.
| Route | Who may claim |
|---|---|
| Hindu Marriage Act — maintenance pendente lite and permanent alimony | Either spouse. The provisions are worded neutrally, so a husband may claim where he shows he has no independent income sufficient for his support |
| Criminal procedure — maintenance of wives, children and parents | A wife, children and parents. A husband cannot claim here |
| Hindu Adoptions and Maintenance Act | A wife against her husband, in the circumstances the Act specifies |
| Domestic Violence Act — monetary relief | An aggrieved woman |
| Special Marriage Act | Worded so that either spouse may apply, on the same basis as the Hindu Marriage Act |
So the accurate position is this: a husband can claim under the matrimonial statute, and such claims have succeeded. But they are uncommon, and the threshold is real — he must show he lacks independent income sufficient for his support, and courts assess earning capacity rather than only current earnings. An able-bodied, employable husband will not succeed merely because his wife earns more.
The cases that have gone this way typically involve a genuine inability to earn — long-term illness or disability, or a husband who gave up employment to care for the household or a dependant while the wife's career advanced. The principle courts apply is the same one that underlies a wife's claim: the provision exists so that neither spouse is left destitute by the proceedings.
Is maintenance taxable?
The distinction that matters is between a one-time payment and a recurring one, and it turns on the character of the receipt rather than on any provision that names alimony.
| Form of payment | Treatment generally applied |
|---|---|
| Lump sum, one-time settlement | Treated as a capital receipt, and generally not taxable as income in the recipient's hands |
| Monthly or periodic maintenance | Treated as a revenue receipt, and generally taxable as income in the recipient's hands |
| For the payer | Not deductible — there is no provision allowing a deduction for maintenance paid |
| Immovable property transferred as part of a settlement | Raises separate questions of stamp duty and capital gains, and needs specific advice before the deed is executed |
The same economic outcome — say ₹60 lakh — structured as a lump sum, as monthly payments over ten years, or as a property transfer, produces three quite different results after tax and stamp duty. Parties routinely negotiate the number hard and then leave the structure to whoever drafts the deed, which is the wrong way round.
“How to avoid paying maintenance” — what actually happens
This is a high-volume search and deserves a straight answer rather than a lecture.
What does not work, because courts see it constantly
- Resigning, or suddenly showing a reduced income. Courts assess earning capacity, not only present earnings. An unexplained drop in income around the time proceedings begin is read for what it is, and the figure gets fixed on capacity instead.
- Not disclosing income or assets. Both parties are required to file an affidavit of assets and liabilities in every maintenance case. Concealment that surfaces later damages the party's credibility on every other issue in the case — custody included.
- Transferring assets to relatives. Transfers made while proceedings are contemplated are open to challenge, and the attempt itself becomes a fact the court weighs against the transferor.
- Simply not paying. Maintenance orders are enforceable, arrears accumulate, and enforcement includes attachment of salary and property and coercive process against a defaulter.
- Moving cities or changing jobs quietly. It delays enforcement; it does not extinguish the order, and arrears continue to run while the delay lasts.
What legitimately affects the figure
- Documented genuine liabilities — dependent parents, a real home loan, continuing medical obligations
- Evidence of the claimant's own income, qualifications and employment
- A negotiated one-time settlement, which closes the exposure and gives both sides certainty
- A genuine change of circumstances after the order, which is a ground to apply for variation
A party with a real inability to pay is far better served by disclosing fully and arguing the figure than by minimising — because the second route costs them the court's confidence, and the court's view of their credibility is what sets the number.
Maintenance for children
A child's right to maintenance is independent of whatever the parents agree between themselves. It is owed by both parents, in proportion to their means, and it does not end with the divorce.
- A minor child is entitled to maintenance from both parents
- An unmarried daughter unable to maintain herself has been held entitled to maintenance beyond majority in several cases
- A child with a disability that prevents self-support is entitled to continuing maintenance
- Educational expenses — fees, books, transport — are routinely ordered in addition to a base monthly figure
A clause in a mutual consent settlement saying that no maintenance is payable for the child does not bind the child. The right belongs to the child, and a guardian can apply for it later notwithstanding what the parents agreed. Drafting a settlement as though it extinguishes that right is a common and expensive error.
When maintenance is not paid
An order that is ignored is not the end of the matter. The enforcement machinery is real and reasonably effective.
- Execution application Filed before the same court that passed the order, setting out the arrears.
- Recovery as a fine The court may issue a warrant for levying the amount in the manner provided for fines.
- Attachment of salary An order to the employer to deduct the maintenance at source and remit it. This is the single most effective remedy where the paying party is salaried.
- Attachment and sale of property Where there is no regular salary but there are assets.
- Imprisonment for default In persistent default, a sentence of imprisonment may be imposed for each month's default. It is coercive, not punitive — and serving it does not discharge the arrears.
Apply for execution as soon as a pattern of default is clear. Courts are far more receptive to an application covering three months of default than one covering three years, and limitation arguments start to appear in long-delayed claims.
Working out what a realistic maintenance figure looks like?
Case Viability reads the facts — incomes, the length of the marriage, dependants, standard of living — and sets out what the law provides and which precedents a court would look at.
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Frequently asked questions
Is alimony always one-third of the husband's salary?
No. There is no statutory fraction. Courts have in many cases arrived at figures in the region of a quarter to a third of net income, and that observation has hardened into internet folklore — but it is not a rule, and it is routinely departed from in both directions depending on the facts.
Can a husband claim maintenance from his wife?
Under some provisions, yes. The Hindu Marriage Act's maintenance provisions are worded neutrally and permit either spouse to claim where they have no independent income sufficient for support. The provision under the Bharatiya Nagarik Suraksha Sanhita, however, is framed in favour of a wife, children and parents.
Does maintenance stop if the wife remarries?
Maintenance to a former wife generally ceases on her remarriage, and the paying party can apply to have the order cancelled. Maintenance payable for a child does not stop — that obligation is owed to the child, not to the other parent.
Can a working wife claim maintenance?
Yes, employment does not disqualify a claim. The question is whether her income is sufficient to maintain the standard of living she was accustomed to during the marriage. Where the disparity in incomes is large, courts have granted maintenance to an earning wife; where incomes are comparable, they frequently have not.
From which date is maintenance payable?
The Supreme Court in Rajnesh v. Neha laid down that maintenance should ordinarily be awarded from the date of the application, not the date of the order, so that delay in disposal does not prejudice the claimant. Arrears from that date are therefore commonly ordered.
What if the paying party hides their income?
Rajnesh v. Neha requires both parties to file an affidavit of assets and liabilities in every maintenance proceeding. Courts can and do draw adverse inferences from concealment, and can order production of tax returns, bank statements and employer records.
Can maintenance orders be changed later?
Yes, on a material change of circumstances — a substantial change in either party's income, the claimant's remarriage, a change in the children's needs. Either party may apply for enhancement or reduction.
What happens if maintenance is not paid?
The order is enforceable. Recovery can be as a fine, by attachment of salary directly from the employer, by attachment and sale of property, and in persistent default by a sentence of imprisonment. Imprisonment does not wipe out the arrears — they remain payable.
Can I claim under more than one law at once?
You may file under more than one provision, but you cannot recover twice for the same period. Rajnesh v. Neha requires a party to disclose any earlier or pending maintenance proceeding, and courts adjust an award to account for what is already being received.
Is a one-time settlement better than monthly maintenance?
It depends on what you value. A lump sum ends the relationship and removes the risk of default and the burden of enforcement, but it is final — it cannot be revisited if circumstances change. Monthly maintenance preserves that flexibility but requires ongoing enforcement. Most negotiated settlements use a lump sum for this reason.
Do parents have a right to maintenance from children?
Yes. The maintenance provision in the Bharatiya Nagarik Suraksha Sanhita covers parents unable to maintain themselves, and the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 provides a separate and faster tribunal route.
Is alimony taxable in India?
A one-time lump sum is generally treated as a capital receipt and not taxable as income in the recipient's hands. Monthly or periodic maintenance is generally treated as a revenue receipt and taxable. The payer gets no deduction either way. Where immovable property is transferred as part of a settlement, stamp duty and capital gains need specific advice before the deed is executed.
Can a husband get alimony?
Under the Hindu Marriage Act and the Special Marriage Act, yes — those provisions are worded neutrally and a husband may claim where he shows he has no independent income sufficient for his support. He cannot claim under the criminal procedure maintenance provision, the Hindu Adoptions and Maintenance Act or the Domestic Violence Act. Such claims are uncommon and courts assess earning capacity, so an able-bodied employable husband will not succeed merely because his wife earns more.
Is alimony mandatory in India?
No. It is not automatic on divorce. It is awarded where a claim is made and the court finds it justified on the factors it weighs. A claimant with independent income sufficient for their own support may be awarded nothing.
Can maintenance be increased or reduced later?
Yes. Maintenance orders are not final the way a decree is. Either party may apply for variation on a genuine change of circumstances — a change in income, remarriage, a new dependant, a change in the children's needs. The applicant has to prove the change.
Does giving up a career during the marriage affect the amount?
Yes, and it is one of the factors courts expressly weigh. Where a spouse gave up employment or education for the marriage or the household, that is treated as relevant both to their reduced earning capacity and to the standard of living the marriage established.