The most useful thing to understand about child maintenance is that it is independent. Section 144(4) BNSS lists the situations in which a wife is not entitled to an allowance, which are living in adultery, refusing without sufficient reason to live with her husband, and living separately by mutual consent. None of that touches clauses (b) and (c) of Section 144(1), which are the children's clauses. A father's obligation to his child does not depend on his view of the mother.
The four routes, and what each one covers
| Provision | Who it covers | Forum |
|---|---|---|
| Section 144(1)(b) BNSS | A legitimate or illegitimate child, whether married or not, unable to maintain itself. In practice this is the minor child's clause, because clause (c) deals separately with a child who has attained majority. A proviso lets the Magistrate order the father to maintain a married female child until she attains majority where her husband is not possessed of sufficient means | Magistrate, or the Family Court where one exists |
| Section 144(1)(c) BNSS | A child who has attained majority, not being a married daughter, who is unable to maintain itself by reason of any physical or mental abnormality or injury | Same |
| Section 26, Hindu Marriage Act, 1955 | Custody, maintenance and education of minor children, by interim order or in the decree, in any proceeding under the Act. The court may afterwards revoke, suspend or vary what it ordered. A proviso asks that the application be disposed of within sixty days of service | The court hearing the matrimonial case |
| Section 20, Hindu Adoptions and Maintenance Act, 1956 | A Hindu is bound during his or her lifetime to maintain legitimate or illegitimate children. Section 20(3) extends the obligation to an unmarried daughter who cannot maintain herself from her own earnings or property | Civil court, and the Family Court where one exists |
| Section 20(1)(d), Domestic Violence Act, 2005 | Maintenance for the aggrieved person and her children, expressly in addition to or under an order of maintenance under the general maintenance provision | Magistrate |
Two points from that table are worth pulling out. Under the Hindu Adoptions and Maintenance Act the obligation is on a Hindu, not on a husband, so it binds a mother as much as a father where the facts require it. And the age cut-off is not the same in every route. The BNSS route ends at majority unless the disability clause applies, while Section 20(3) of the 1956 Act carries on for an unmarried daughter who cannot maintain herself. For a child going into a long professional course after eighteen, the choice of provision matters.
How to quantify it so the number is not guessed
The Affidavit of Disclosure of Assets and Liabilities directed in Rajnesh v. Neha has a whole section devoted to children. It asks for the number and ages of the children, who has custody, and the expenditure on them broken up into food, clothing and medical expenses, education and general expenses, and expenses of any extra educational, vocational or professional course, specialised training or special skills programme. It asks whether any loan or instalment plan has been taken for educational expenses, and whether any third party is contributing. It also asks about trust funds or investments created by a spouse or grandparents in favour of the children, which the Court said would be taken into account in deciding final child support.
- School or college fee receipts for the last three years, including admission and development fees
- Transport, uniform, books and stationery bills
- Coaching, tuition and any entrance-examination course fees
- Medical records, prescriptions, therapy invoices, and health insurance premiums
- Extra-curricular and sports fees where the child was already enrolled before the separation
- The rent for the home the child lives in, apportioned, because a child's share of housing is part of the child's maintenance
- Any education loan taken and the EMI on it
- Proof of what the father contributed voluntarily, and when it stopped
Two things worth asking for at the same time
Rajnesh directed that provision for reasonable expenses of the marriage of children be made when determining permanent alimony where custody is with the wife, taking into account the financial position of the husband and the customs of the family. That is a head of claim most petitions never plead.
The second is direct payment. Where fees are the largest component, ask that the school or college fee be paid by the father directly to the institution against the receipt, with the balance paid to you. It removes a recurring fight, it is easy for a court to order, and it is much easier to prove a default when the institution's records show it.
What I tell clients
Plead the child's claim as the child's, through you as guardian, and give it its own paragraph, its own arithmetic and its own annexures. The temptation is to lump everything into one number because it looks larger. It is a false economy, because a lumped figure is harder to enhance later, harder to enforce in part, and easier for the other side to attack as a claim dressed up for the wife. On the date these amounts run from, see the answer on maintenance from the date of the application, and the guide on who pays child support, how much and until what age works through the age question in more detail.