If you have been served with a maintenance petition, you may be wondering what defences against a maintenance claim the law actually allows. Let me reassure you at the outset. Maintenance law is designed to prevent destitution, not to punish anyone or provide an unfair windfall. While the duty to maintain a dependent wife, children, and parents is serious and courts enforce it firmly, the law also recognises genuine defences. These range from challenging the claimant's entitlement to contesting the amount demanded. With the right evidence and a well-prepared reply, you can ensure that any order passed against you is fair and proportionate.

Let me begin with the legal framework. Section 125 of the Code of Criminal Procedure, 1973 was the provision for maintenance of wives, children, and parents for decades. Since 1 July 2024, it has been replaced by Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). The language and structure are almost identical, so the extensive case law developed under Section 125 continues to apply. Section 145 of the BNSS (formerly Section 126 CrPC) deals with procedure, Section 146 (formerly Section 127) with alteration of allowance, and Section 147 (formerly Section 128) with enforcement.

The purpose of this provision must be understood before discussing defences. In Captain Ramesh Chander Kaushal v. Veena Kaushal (1978), the Supreme Court described Section 125 as a measure of social justice, enacted to protect women and children and falling within the constitutional sweep of Article 15(3), reinforced by Article 39. Courts therefore interpret it generously in favour of dependants. Your defences must be grounded in clear facts and evidence, not general denials.

Under Section 144(1) of the BNSS, if any person having sufficient means neglects or refuses to maintain certain dependants, the Magistrate can order a monthly allowance. The dependants are his wife who is unable to maintain herself, his minor children, legitimate or illegitimate, whether married or not, his major children (other than a married daughter) who are unable to maintain themselves due to physical or mental abnormality or injury, and his father or mother who are unable to maintain themselves. Each element of this provision creates a potential line of defence.

The first defence is that the claimant is able to maintain herself. A wife is entitled to maintenance under Section 144 only if she is "unable to maintain herself." If she has an independent income sufficient to maintain herself at the standard she enjoyed in the matrimonial home, the claim may fail or the amount may be reduced. Evidence such as salary slips, income tax returns, business records, or bank statements showing her earnings can be decisive.

Courts approach this defence with care, however. In Sunita Kachwaha v. Anil Kachwaha (2014), the Supreme Court held that the mere fact that a wife has some income does not defeat her claim, if that income is insufficient to maintain her at the standard she was accustomed to. In Shailja v. Khobbanna (2018), the Court held that being "capable of earning" is different from "actually earning." So you must show actual, sufficient income, not merely that she is educated or could find a job.

The second defence concerns your own means. Section 144 applies only to a person "having sufficient means." If you genuinely lack income, are unemployed due to illness or disability, or have heavy legitimate liabilities, this can affect both liability and the amount. You must place full and honest evidence of your finances before the court, including salary, assets, loans, and other dependants.

This defence has clear limits, though. In Chaturbhuj v. Sita Bai (2008) and Shamima Farooqui v. Shahid Khan (2015), the Supreme Court held that an able-bodied husband is presumed capable of earning and cannot escape his obligation by claiming he has no job. In Anju Garg v. Deepak Kumar Garg (2022), the Court said that an able-bodied husband must earn, even through physical labour, to maintain his wife and children. Courts also look closely at attempts to hide income, such as resigning from a job or transferring assets to relatives.

To prevent concealment by either side, the Supreme Court in Rajnesh v. Neha (2020) made it mandatory for both parties in maintenance proceedings to file affidavits disclosing their assets and liabilities in a prescribed format. False statements in this affidavit can lead to prosecution for perjury and contempt. This judgment also laid down factors for deciding the amount, such as the status of the parties, reasonable needs, the claimant's income, the respondent's income and liabilities, and the cost of living.

The third defence is that the marriage itself is not legally valid. Section 144 protects a "wife," and in Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav (1988), the Supreme Court held that a woman whose marriage is void because the husband had a living spouse at the time cannot claim maintenance as a "wife" under this provision. If you can show, with documentary evidence, that the claimant was already married when she married you, this can be a complete defence.

Courts apply this defence cautiously, however. In Dwarika Prasad Satpathy v. Bidyut Prava Dixit (1999), the Supreme Court held that the standard of proof of marriage in maintenance proceedings is not as strict as in a bigamy prosecution. In Chanmuniya v. Virendra Kumar Singh Kushwaha (2011), the Court favoured a broad interpretation of "wife" where a man and woman had lived together for a long time as husband and wife. In Badshah v. Urmila Badshah Godse (2014), the Court held that a man who concealed his first marriage cannot use that concealment to deny maintenance to the second wife.

The fourth defence is that the wife is living in adultery. Under Section 144(4) of the BNSS (formerly Section 125(4) CrPC), a wife is not entitled to maintenance if she is living in adultery. Courts interpret "living in adultery" as a continuous course of adulterous conduct, not an isolated lapse or a single incident. Mere suspicion, rumours, or private conversations are not enough. You need clear and reliable evidence of an ongoing relationship.

Note that adultery being decriminalised in Joseph Shine v. Union of India (2018) does not affect this defence. Adultery is no longer a crime, but it remains relevant in maintenance and divorce proceedings. Under Section 144(5), if a maintenance order has already been passed, it can be cancelled on proof that the wife is living in adultery.

The fifth defence is that the wife refuses, without sufficient reason, to live with you. Under Section 144(4), a wife who refuses to live with her husband without sufficient reason is not entitled to maintenance. This defence often arises where the husband has made a genuine, good-faith offer to take her back, and she refuses without valid cause. Evidence of your offer, such as letters, messages, or a petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955, can support this defence.

The law sets important limits on this defence. Under the proviso to Section 144(3), if a husband offers to maintain his wife on condition that she lives with him, and she refuses, the Magistrate may consider her grounds for refusal. If the husband has married another woman or keeps a mistress, that is considered just ground for her refusal. If there is evidence of cruelty, dowry demands, or domestic violence, courts will also treat her refusal as justified. An offer made only to defeat the maintenance claim, without real intention, will not succeed.

The sixth defence is separation by mutual consent. Under Section 144(4), a wife is not entitled to maintenance if she and her husband are living separately by mutual consent. This requires a genuine mutual agreement to live apart, usually supported by documents or clear evidence. Under Section 144(5), an existing order can be cancelled on proof of such mutual consent. Courts examine whether the consent was real and voluntary, rather than forced by circumstances.

Defences specific to divorced wives also exist. Under the Explanation to Section 144(1), "wife" includes a woman who has been divorced and has not remarried. So divorce by itself does not end the right to maintenance. However, under Section 146(3)(a) of the BNSS (formerly Section 127(3) CrPC), an order in favour of a divorced woman is cancelled if she remarries. Under Section 146(3)(c), it may also be cancelled if she has voluntarily surrendered her rights to maintenance after divorce, such as through a full and final settlement.

Muslim husbands sometimes believe that divorced Muslim wives cannot claim under Section 125. That is not correct. In Mohd. Ahmed Khan v. Shah Bano Begum (1985) and Danial Latifi v. Union of India (2001), the Supreme Court upheld the right of divorced Muslim women to fair maintenance. In Mohd. Abdul Samad v. State of Telangana (2024), the Court held that the Muslim Women (Protection of Rights on Divorce) Act, 1986 does not exclude the remedy under Section 125 CrPC. So the religion of the parties is not, by itself, a defence.

Navigating these defences requires careful evidence, and a weak or exaggerated defence can backfire badly. To understand which defences genuinely apply to your facts, you can seek guidance through the team at Aapka Legal Advice, who can review your marriage records, income documents, and the petition filed against you. If your maintenance dispute is linked to cruelty, dowry, or other criminal allegations, experienced Top Criminal Lawyers in India | Aapka Legal Advice can handle both fronts together. You may also seek an opinion from our panel of retired judges, who bring years of experience from the family and criminal courts and work alongside our criminal lawyers to shape a balanced strategy.

Now let us look at defences relating to children. A father is liable to maintain his minor children, whether legitimate or illegitimate. If you dispute paternity, remember that under Section 116 of the Bharatiya Sakshya Adhiniyam, 2023 (formerly Section 112 of the Evidence Act), a child born during a valid marriage is conclusively presumed to be legitimate, unless the husband proves he had no access to the wife at the relevant time. This presumption is very strong.

DNA testing is possible but not routine. In Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik (2014), the Supreme Court held that where a DNA test was conducted and established that the husband was not the father, the scientific evidence would prevail. However, in Aparna Ajinkya Firodia v. Ajinkya Arun Firodia (2023), the Court held that DNA tests should not be ordered as a matter of course, because they affect the child's rights to dignity and privacy. You must show a strong prima facie case before a court will order such a test.

Major children are entitled under Section 144 only if they are unable to maintain themselves because of physical or mental abnormality or injury. A healthy major son is generally not entitled under this provision. In Abhilasha v. Prakash (2020), the Supreme Court held that an unmarried major daughter without any abnormality cannot claim maintenance under Section 125 CrPC, though she may claim under Section 20(3) of the Hindu Adoptions and Maintenance Act, 1956. So the child's age and condition can form a defence under this provision.

Parents' claims also have defences. A child is liable to maintain a father or mother who is unable to maintain themselves. If the parent has sufficient income, property, or pension, the claim may fail. Where there are several children, courts generally expect all children with means to share the responsibility, so one child can argue that siblings must also contribute. Parents may also claim under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.

Even where entitlement is established, you can contest the amount, which is often the most practical defence. Under Rajnesh v. Neha, the court must consider the reasonable needs of the claimant, the income of both parties, the standard of living, the respondent's liabilities, and other dependants. In Kalyan Dey Chowdhury v. Rita Dey Chowdhury Nee Nandy (2017), the Supreme Court indicated that twenty-five percent of the husband's net salary may be a just and proper amount, though this is only a guideline.

Overlapping orders can also be raised as a defence on quantum. A wife may claim maintenance under Section 144 of the BNSS, the Protection of Women from Domestic Violence Act, 2005, the Hindu Marriage Act, and the Hindu Adoptions and Maintenance Act. In Rajnesh v. Neha, the Supreme Court held that while these remedies can be pursued together, the court must take into account maintenance already awarded in other proceedings and adjust the amount accordingly. This prevents double recovery.

Jurisdiction can be another technical defence. Under Section 145(1) of the BNSS (formerly Section 126(1) CrPC), proceedings may be filed where the respondent is, where he or the wife resides, or where he last resided with the wife or with the mother of the illegitimate child. If the petition is filed in a court without jurisdiction, you can raise an objection at the earliest stage. However, courts interpret jurisdiction liberally in favour of the claimant, so this defence succeeds only in clear cases.

Procedure and timing matter as well. Under Rajnesh v. Neha, maintenance is generally payable from the date of the application, not the date of the order. Under the proviso to Section 144(3), arrears can be recovered only if an application is made within one year from the date they became due. Under Section 145, proceedings must take place in your presence, but the Magistrate can proceed ex parte if you wilfully avoid service or neglect to attend.

A crucial practical warning: do not ignore interim maintenance orders while contesting the case. Under Section 144(3) of the BNSS, if a person fails without sufficient cause to comply with a maintenance order, the Magistrate can issue a warrant to recover the amount and can sentence the person to imprisonment of up to one month for each month's default. Failing to pay can seriously weaken your defence and your credibility before the court. Pay as ordered, and challenge the order through proper legal channels.

If an order is passed against you, there are remedies. If the order was passed by a Family Court, a revision lies to the High Court under Section 19(4) of the Family Courts Act, 1984. If it was passed by a Magistrate, a revision lies to the Sessions Court or High Court under Sections 438 and 442 of the BNSS (formerly Sections 397 and 401 CrPC). The High Court can also exercise its inherent powers under Section 528 of the BNSS (formerly Section 482 CrPC) in exceptional cases of abuse of process.

Changed circumstances allow you to seek alteration later. Under Section 146(1) of the BNSS, if there is a change in the circumstances of either party, such as a loss of job, a substantial increase in the wife's income, or a change in the child's needs, the Magistrate can increase, reduce, or cancel the allowance. Under Section 146(2), the order can also be modified in light of a decision by a competent civil court. Keep evidence of any such change ready.

If the claimant files a false affidavit or fabricates evidence, further recourse may be available. Under Rajnesh v. Neha, false statements in the asset and liability affidavit can lead to prosecution for perjury. Fabricating false evidence is punishable under Section 229 of the Bharatiya Nyaya Sanhita, 2023, and prosecution usually requires a complaint by the court under Section 215 read with Section 379 of the BNSS. Such steps should be considered carefully and only on clear evidence, because maintenance courts strongly discourage retaliatory litigation.

Let me summarise the key defences. You can show that the wife is able to maintain herself, that you genuinely lack sufficient means, that the marriage is not legally valid, that she is living in adultery, that she refuses to live with you without sufficient reason, or that you are living separately by mutual consent. For divorced wives, remarriage or voluntary surrender of rights is a defence. For children and parents, age, condition, paternity, and the claimant's own means matter. In every case, you can contest the quantum based on Rajnesh v. Neha.

In conclusion, the law provides genuine defences against a maintenance claim, but they must be raised honestly and supported by solid evidence. Courts treat maintenance as a social justice measure under Article 15(3), so exaggerated or unsupported defences often fail. File a truthful affidavit of assets, comply with interim orders, and focus your defence on the points that genuinely apply to your facts. With careful preparation and sound legal advice, defences against a maintenance claim can ensure that any order is fair, and well-founded defences against a maintenance claim can protect you from an unjust or excessive burden.