An old maintenance figure is not permanent and it is not a ceiling. What it is, though, is a starting point that you have to move, and the burden of showing why sits on you. There is no automatic escalation in Indian maintenance law and no indexation built into any of the statutes.
Where the application goes
Which order fixed the amount?
A Magistrate or Family Court order under Section 144 BNSS. Apply under Section 146 BNSS for alteration in the allowance, before the same court, on proof of a change in the circumstances of either person.
An order or decree under Section 24 or 25 of the Hindu Marriage Act. Apply under Section 25(2), which lets the court vary, modify or rescind at the instance of either party where it is satisfied there is a change in circumstances.
A decree or an agreed figure under the Hindu Adoptions and Maintenance Act. Section 25 of that Act allows alteration of an amount fixed by decree or by agreement, before or after the Act, where there is a material change in circumstances.
Monetary relief under Section 20 of the Domestic Violence Act. Apply under Section 25(2) of that Act, which requires the Magistrate to record reasons in writing.
A figure recorded in a settlement or consent decree. Read the terms first. If the settlement was a full and final one-time payment, there is usually nothing to enhance. If it recorded a monthly figure, the variation provision of the statute under which the decree was passed still applies unless the parties clearly contracted otherwise.
The forum point is not optional. In Rajnesh v. Neha the Supreme Court directed that where an order passed in a previous proceeding requires modification or variation, it is to be done in that same proceeding. Filing a fresh maintenance petition in another forum to get a better number invites a set-off argument and a delay you do not need.
What actually persuades a court to enhance
- The payer's current income, proved by his fresh affidavit of assets and liabilities, salary slips, income tax returns and bank statements
- A promotion, a job change, a new business, rental income that did not exist, or property acquired since the order
- The child's changed stage: a move from primary school to a board year, from school to a professional degree, or a diagnosis requiring therapy
- Rent, school fee and medical receipts for the current year set against the same heads at the time of the original order
- A medical condition or loss of earning capacity on your side that has arisen since
- Simple erosion of value, which Rajnesh recognised when it said the court must have regard to spiralling inflation rates and high costs of living
What does not work is a bare assertion that the amount is too low. If the order is eight years old and you file with nothing except a complaint about prices, you will get a small increase or none. The application that succeeds is a comparison: this is what the same list of expenses cost then, this is what it costs now, and this is what he earns now compared with then. Where the child's expenses are the driver, plead and prove them as a separate head, for the reasons set out in the answer on claiming maintenance for a child separately.
Getting his current figures
You are entitled to make him disclose. Rajnesh made the affidavit of assets and liabilities the general rule in all maintenance proceedings including pending ones, with an exemption for economically weaker parties, those below the poverty line and casual labourers. It gave the respondent a maximum of four weeks to reply with it, told courts not to grant more than two opportunities, and permitted the defence to be struck off where the delay is wilful and contumacious. Beyond the affidavit, the judgment expressly points to interrogatories and production of documents under Order XI of the Code of Civil Procedure, examination of the party under Order X, and the burden that falls on a person about facts especially within his own knowledge, now Section 109 of the Bharatiya Sakshya Adhiniyam, 2023. The guide on the assets and liabilities affidavit reproduces what the format asks for.
Two practical points people miss
Ask for the enhanced amount from the date of the variation application, expressly, in the prayer. Rajnesh directed that maintenance in all cases be awarded from the date of filing the application, and the same logic should be pressed for an enhancement, but a prayer that does not ask for it invites an order that starts from the date it is signed. The gap can be two years of money.
And there is no limitation period for applying to vary, but there is one for recovering. The proviso to Section 144(3) BNSS bars a warrant to levy any amount unless the application to recover it is made within a year of the date it fell due. That is why sitting on an under-paid order for four years costs you far more than the delay in filing the enhancement.
What I tell clients
If you are negotiating a settlement now rather than varying an old order, put an escalation clause in it. A simple stepped increase every two or three years, or a link to the child's actual school fee, removes the need for this application entirely. It is the single most useful clause in a matrimonial settlement and it is the one most often left out, because both sides are focused on the number for the first year. The guide on the factors courts weigh for permanent alimony sets out what a court will look at when the figure is revisited.