Start with the part people get wrong. The order does not reduce itself when your salary stops. It runs until a court alters it, arrears accumulate month by month in the meantime, and stopping payment on your own turns a straightforward variation application into a defence against execution and possible contempt. Apply first, argue second.
Which provision you apply under
You go back to the court that made the order, in the same proceeding. That is not a formality. In Rajnesh v. Neha the Supreme Court directed in terms that if an order passed in a previous proceeding requires modification or variation, it has to be done in that same proceeding, so a fresh case in a different forum is the wrong move.
| Order you are paying under | Variation provision | Test |
|---|---|---|
| Section 144 BNSS, the old Section 125 CrPC | Section 146 BNSS, alteration in allowance | Proof of a change in the circumstances of the person receiving or paying |
| Section 24 or 25, Hindu Marriage Act, 1955 | Section 25(2), Hindu Marriage Act | The court is satisfied there is a change in the circumstances of either party |
| Decree or agreement under the Hindu Adoptions and Maintenance Act, 1956 | Section 25 of that Act | A material change in circumstances justifying alteration |
| Monetary relief under Section 20, Protection of Women from Domestic Violence Act, 2005 | Section 25(2) of that Act | Change in circumstances requiring alteration, with reasons recorded in writing |
Section 146(2) BNSS adds something useful. Where a competent civil court has decided something that means the maintenance order should be cancelled or varied, the Magistrate is required to cancel or vary it accordingly. So a permanent alimony figure fixed in the matrimonial case is not something you have to litigate all over again in the criminal side.
What a court treats as a change in circumstances
Two sentences from Rajnesh decide most of these applications. The Court said the plea of the husband that he does not possess any source of income does not by itself absolve him of his duty to maintain his wife if he is able bodied and has educational qualifications. It also said the court must have due regard to the standard of living of the husband as well as the spiralling inflation rates and high costs of living. Read together, an unemployed graduate with a work history is treated as a person who can earn, and the figure is set on capacity where declared income is not credible. The same reasoning is what the other side uses when it suspects concealment, and the tools it can reach for are set out in the answer on proving what a spouse actually earns.
The paperwork that decides it
- The termination or relieving letter, on the employer's letterhead, with the date and reason
- Salary slips for the last twelve months and the full and final settlement statement
- Bank statements for every account, showing the salary credit stopping and nothing replacing it
- The last filed income tax return and Form 16, and the current year's position
- EPF withdrawal or transfer record, and any severance or gratuity received
- Evidence of a genuine job search: applications, rejections, recruiter correspondence, dates
- Medical records where illness or injury is the reason, not a general statement of ill health
- An amended or supplementary affidavit of assets and liabilities, which Rajnesh expressly permits when the financial position changes during the proceedings
Timing is what practitioners actually argue about
A job loss dated a fortnight after service of the maintenance notice invites the obvious inference, and courts draw it. A job loss two years into an order, backed by a settlement statement and a bank account that has been running down since, is a different application altogether. If the loss is genuine, file within weeks, not after a year of unpaid arrears, because by then you are defending non-payment rather than seeking a variation.
Ask for two things in the application, not one. A reduction going forward, and a direction on how the accrued arrears are to be paid, usually in instalments. Courts are far more willing to restructure arrears than to wipe them out, and an offer to clear them over twelve months does more for you than a plea of poverty. The proviso to Section 144(3) BNSS cuts the other way as well, because no warrant issues to levy an amount unless the application to recover it is made within one year of the date it fell due, so arrears that have been left alone for years are often not recoverable by that route in any event.
What I tell clients
The application that fails is the one that says the client has no income and stops there. The application that works annexes the settlement statement, the bank account, and a list of dated job applications, and then proposes a reduced figure the client will actually pay from the next month. Offering a number and paying it is worth more than any argument, because it removes the one thing that hardens a court against you, which is the impression that the default was a choice. If the child's component is part of the order, keep paying that in full while the application is pending. Courts notice. Where the figure was fixed on a lifestyle that has genuinely gone, the guide on what both sides get wrong about maintenance is worth reading before you decide what to ask for.