This question is worth more money than almost any other in a maintenance case. Where a case takes three years to reach an interim order, the difference between the two dates is thirty-six months of arrears.
Why the law had to be settled at all
Because the statutes do not agree with each other.
| Provision | What it says about the date |
|---|---|
| Section 144(2) BNSS, the old Section 125(2) CrPC | The allowance is payable from the date of the order, or, if so ordered, from the date of the application. A discretion, and the words "if so ordered" are doing all the work |
| Section 24, Hindu Marriage Act, 1955 | Silent. It speaks of a monthly sum during the proceeding and sets a sixty-day target for disposal, but fixes no starting date |
| Section 25, Hindu Marriage Act, 1955 | Silent. Permanent alimony may be ordered at the time of the decree or at any time afterwards |
| Section 20, Domestic Violence Act, 2005 | Silent on the date. Section 12(5) only asks the Magistrate to endeavour to dispose of the application within sixty days of the first hearing |
Faced with that, Family Courts across the country had taken three different views, and the Supreme Court recorded them: from the date the application was filed, from the date of the order, and from a date the court chose in between. Rajnesh reasoned that the delay in disposal is not within the applicant's control, that a dependant spouse should not be made to starve until the case ends, and that maintenance is neither a favour to the wife nor charity from the husband. The direction from the date of the application follows from that.
What this means in arithmetic
Three things to get into the order itself
Ask for it in the prayer. A prayer that asks only for maintenance leaves the court free to write an order that is silent on the date, and a silent order is read against you when you try to execute it. The prayer should say, in terms, that the amount be made payable from the date of the application.
Ask for the arrears schedule at the same time. An order that says a lump sum is due without saying when it is to be paid is an order you will be back in court about.
And if the order is passed and is genuinely silent or wrongly worded, do not let it go. A clerical or arithmetical mistake or an accidental slip or omission in an order can be corrected under Section 152 of the Code of Civil Procedure by the court that passed it, on its own motion or on an application. Where the omission is more than clerical, the route is an application for clarification or an appeal, and the appeal periods are short.
The set-off nobody warns you about
Arrears from the date of the application are not a windfall. Rajnesh also directed that where successive claims are made under different statutes, the court is to consider an adjustment or set-off of the amount awarded in the earlier proceeding, and that it is mandatory for the applicant to disclose the previous proceeding and the orders in it. So if a Domestic Violence Act order has been running and paid, the sum already received comes off the arrears computed in the maintenance case. Section 146(4) BNSS says the same thing in the other direction, requiring a civil court passing a maintenance decree to take into account what has already been paid or recovered under the Section 144 order.
So annex a copy of every earlier maintenance order between the same parties, and prove from bank statements rather than by assertion what was actually received under each of them. Do the same for voluntary payments made in the meantime, because the payer will produce those if you do not, and an arrears figure that ignores them is an arrears figure the court will not accept. The date stamped on your own application is what the whole computation runs from, so keep the filing copy safe. Where several proceedings are running at once, the answer on cases filed in three different courts deals with how the set-off works across them.
What I tell clients
File early rather than perfectly. Because the clock now starts on the date of filing, a rough application filed this month is worth more than a polished one filed after four months of collecting documents, and the affidavit of disclosure can be supplemented later. The one thing that cannot be recovered is the period before you filed. If the matter is already pending and the interim application has been sitting undecided, the guide on what to do when interim maintenance is not being decided sets out the pressure points, including the sixty-day statutory target and the four-to-six month outer limit Rajnesh set for deciding these applications once the affidavits are on record.