There is no fixed percentage of a husband's salary payable as maintenance in India, a working woman is not disqualified from claiming it, and either spouse can apply under the Hindu Marriage Act, 1955. Almost every conversation about divorce in India eventually lands on one anxious question: how much money changes hands, and who decides? Almost every one of those conversations starts from a wrong assumption, usually something a relative, a WhatsApp forward, or a film planted years ago.
Part of the maintenance and alimony practice at S Jain & Attorneys, Bangalore.
Maintenance, loosely called alimony, is one of the most misunderstood areas of Indian family law. Both husbands and wives walk into it carrying myths that can cost them dearly. Here is what the law actually says, stripped of the folklore, together with the framework the Supreme Court laid down in Rajnesh v. Neha (Supreme Court, 4 November 2020), which now governs how almost every maintenance application in the country is run.
Myth 1: Maintenance is a fixed percentage of the husband's salary
This is the most stubborn myth of all, the belief that a wife automatically gets 25 percent, or one third, of the husband's income. There is no such statutory formula anywhere in Indian law. Courts have used rough benchmarks as a starting point in individual cases, and in Kalyan Dey Chowdhury v. Rita Dey Chowdhury the Supreme Court treated roughly 25 percent of the husband's net salary as a just and proper figure on the facts before it. That is a judicial reference point on particular facts, not a rule of arithmetic, and it is routinely misquoted as though it were a tariff.
What a court actually weighs, following the criteria set out in Rajnesh v. Neha, includes the status and position of the parties, the reasonable needs of the claimant, the claimant's educational and professional qualifications, whether the claimant has independent income and whether it is sufficient, the standard of living in the matrimonial home, whether the claimant gave up employment for family responsibilities, the age and employability of both spouses, the duration of the marriage, the respondent's liabilities and other dependants, reasonable educational expenses of the children, and any serious medical condition needing ongoing care. The court's own instruction to itself is that maintenance should be neither extravagant nor meagre, but should permit reasonable comfort.
Key takeaway. Maintenance is need based and discretionary, not a slot machine payout. Two households with identical salaries can see very different orders because the liabilities, the dependants, the length of the marriage and the standard of living differ. Anyone who quotes you a percentage without asking about both sides' finances is guessing.
What a court actually weighs when it fixes a figure, following the criteria in Rajnesh v. Neha.
Status and reasonable needs
The court weighs the status and position of the parties, the reasonable needs of the claimant, and the standard of living in the matrimonial home.
Income and employability
Educational and professional qualifications, whether the claimant has independent income and whether it is sufficient, and the age and employability of both spouses.
Career break and duration
Whether the claimant gave up employment for family responsibilities, and the duration of the marriage, are both among the criteria the court weighs.
The payer's obligations
The respondent's liabilities and other dependants, reasonable educational expenses of the children, and any serious medical condition needing ongoing care.
Myth 2: A working woman can never claim maintenance
Many husbands assume that the moment a wife earns her own salary, her right to maintenance evaporates. That is not how it works. Employment reduces, but does not automatically extinguish, a maintenance claim.
The guiding principle is that maintenance should help a spouse maintain a standard of living broadly comparable to the one enjoyed during the marriage, not push her into a sharply lower one because she has a job. Where the wife earns far less than the husband, or her income cannot sustain the lifestyle the couple shared, or she took a career break for the household and is now re entering the workforce at a discount, a court can still award maintenance to bridge the gap. Her income is one factor among many.
The mirror image is equally wrong. A wife who is capable of earning and has deliberately chosen not to, in a case with no children to care for and no health constraint, will find the court assessing her on earning capacity rather than on the zero figure in her affidavit.
Myth 3: Only wives can claim, husbands never can
Maintenance law is largely framed to protect the financially weaker spouse, and historically that has overwhelmingly been the wife. But the framework is not entirely one sided. Section 24 of the Hindu Marriage Act, 1955 (maintenance pendente lite and expenses of proceedings) and Section 25 (permanent alimony and maintenance) are both worded so that either spouse may apply. The Special Marriage Act, 1954 mirrors this in Section 36 (alimony pendente lite) and Section 37 (permanent alimony and maintenance).
In practice such orders are rare and the bar is high. Courts do not look kindly on an able bodied spouse seeking to live off the other, and a husband applying under Section 24 will normally have to show a genuine incapacity to earn, not merely a lower income. But the legal door is not bolted shut. The criminal law route under Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 and the Protection of Women from Domestic Violence Act, 2005 remain available only to women.
Myth 4: There is only one kind of maintenance
People talk about maintenance as if it is a single thing. It is not. A spouse may have more than one parallel remedy, and the right choice depends on the facts, the community, the urgency and whether there is a divorce petition on file at all.
| Route | Who can claim | Forum | What it gives | Speed in practice |
|---|---|---|---|---|
| Section 144, Bharatiya Nagarik Suraksha Sanhita, 2023 (replaced Section 125 of the Code of Criminal Procedure, 1973) | Wife including a divorced wife who has not remarried, minor children, a major child unable to maintain itself by reason of physical or mental abnormality, and parents. Religion neutral | Magistrate, or the Family Court exercising that jurisdiction | Monthly allowance plus interim maintenance | Designed to be the quickest; interim applications to be disposed of as far as possible within sixty days of service of notice |
| Sections 24 and 25, Hindu Marriage Act, 1955 | Either spouse, where a matrimonial petition is pending or being decided | Family Court or District Court hearing the matrimonial case | Interim maintenance and litigation expenses; permanent alimony as a lump sum or periodical payment | Interim relief early in the case; permanent alimony at decree stage |
| Sections 18 and 20, Hindu Adoptions and Maintenance Act, 1956 | Hindu wife, children, aged or infirm parents, unmarried daughter unable to maintain herself | Civil court, by suit | Maintenance including food, clothing, residence, education and medical treatment; for an unmarried daughter also the reasonable expenses of her marriage | Slowest, because it is a regular civil suit, but it survives independently of any divorce case |
| Section 20, Protection of Women from Domestic Violence Act, 2005 | An aggrieved woman in a domestic relationship | Magistrate, on an application under Section 12 | Monetary relief, plus residence orders under Section 19 and interim or ex parte orders under Section 23 | Often the fastest practical route where violence or exclusion from the home is alleged |
| Sections 36 and 37, Special Marriage Act, 1954 | Either spouse married or registered under that Act | District Court or Family Court | Alimony pendente lite and permanent alimony | Tracks the matrimonial case |
| Muslim Women (Protection of Rights on Divorce) Act, 1986, and Section 144 BNSS | Divorced Muslim woman | Magistrate | Reasonable and fair provision and maintenance under the 1986 Act; the secular remedy also remains open | Varies |
On the last row, the position was put beyond argument in Mohd. Abdul Samad v. State of Telangana (Supreme Court, 10 July 2024), where the court held that a divorced Muslim woman may seek maintenance under Section 125 of the Code of Criminal Procedure, now Section 144 of the BNSS, in addition to her remedies under the 1986 Act, and that maintenance is a right and not charity.
These remedies can overlap, and courts adjust so that nobody is paid twice for the same period. Mapping the right forum early is something to do with an advocate handling family and divorce matters, because the choice affects both the speed of relief and what the court can order.
Myth 5: You get nothing until the divorce is final
Divorce litigation in India can stretch on for years, and many people wrongly believe they must survive that entire period unsupported. Interim maintenance exists precisely to prevent that. A court can order temporary maintenance and litigation expenses while the main case is pending, so that a financially weaker spouse is not starved into submission or forced to abandon the case for want of funds.
The law now pushes hard on timing. The second proviso to Section 144(1) of the BNSS requires an application for interim maintenance to be disposed of, as far as possible, within sixty days from the date of service of notice. In Rajnesh v. Neha the Supreme Court directed that a reply with an affidavit of disclosure be filed within a maximum of four weeks, that courts should not ordinarily grant more than two adjournments for it, that interim applications be endeavoured to be decided within four to six months of the affidavits being filed, and that Family Courts decide the substantive maintenance application within six months.
Myth 6: The court cannot see through hidden income
This one has aged badly. Since Rajnesh v. Neha, both parties in every maintenance proceeding across the country are required to file an Affidavit of Disclosure of Assets and Liabilities in the prescribed format, with separate formats for urban, rural and tribal areas. Where the disclosure is disputed, the other side can serve interrogatories and seek production of documents under Order XI of the Code of Civil Procedure, 1908. Exemptions exist for those below the poverty line, casual labourers and the economically weakest, but for everyone else the affidavit is not optional.
Common mistake. Treating the affidavit of disclosure as a form to be filled loosely. Salary slips, bank statements, income tax returns, loan account statements and property records are the evidence the quantum is built on. An understated affidavit that is later contradicted by an income tax return does more damage to a case than a high income honestly disclosed, because it costs the deponent the court's belief on everything else.
Myth 7: Maintenance starts from the date of the order
Section 144(2) of the BNSS allows the allowance to be payable from the date of the order or, if the court so directs, from the date of the application. In Rajnesh v. Neha the Supreme Court settled the practice: maintenance should be awarded from the date of the application in all cases, because the object of maintenance law is to prevent destitution and vagrancy, and that object is defeated if a claimant who waited three years for an order gets nothing for those three years.
The practical effect is significant. By the time an order is passed, arrears may already have accumulated for a long period, and courts commonly direct that the arrears be paid in instalments alongside the ongoing monthly amount.
Myth 8: Maintenance is a punishment for the husband
Maintenance is not designed to penalise one spouse or reward the other. Its purpose is to prevent destitution and to preserve, so far as reasonably possible, a continuity in standard of living. Conduct is relevant, but the order is fundamentally about need and means.
Equally, maintenance is not carved in stone. Section 25(2) of the Hindu Marriage Act allows the court to vary, modify or rescind a permanent alimony order on a change in circumstances, and Section 25(3) permits rescission where the receiving spouse remarries or is not remaining chaste. Section 25 of the Hindu Adoptions and Maintenance Act allows the amount to be altered on a material change in circumstances, and Section 25 of the Domestic Violence Act allows alteration of orders made under it. A job loss, a serious illness, a remarriage or a large change in income can all justify an application to vary.
Myth 9: Two cases mean two payments
A claimant is sometimes advised to file under every available provision at once. The Supreme Court addressed this directly in Rajnesh v. Neha by requiring an applicant to disclose, in any subsequent maintenance proceeding, the maintenance already awarded in an earlier one, and requiring the later court to take that into account and grant an adjustment or set off, so that the respondent is not made to pay twice over for the same period.
That does not make parallel proceedings pointless. Different statutes give different reliefs, and a residence order under the Domestic Violence Act cannot be obtained under Section 144 BNSS. But the arithmetic is consolidated, and non disclosure of an earlier order is the kind of thing that colours a court's view of the whole case.
Myth 10: If he simply does not pay, nothing happens
Enforcement is where a great many maintenance orders quietly die, usually because nobody pursued them. The machinery exists. Section 144(3) of the BNSS allows the Magistrate, on non payment without sufficient cause, to issue a warrant for levying the amount in the manner provided for fines, and to sentence the defaulter to imprisonment for a term which may extend to one month for each month's default, or until payment if sooner made. Section 147 of the BNSS, which replaced Section 128 of the Code of Criminal Procedure, allows the order to be enforced by any Magistrate in the place where the defaulter is found. Section 28A of the Hindu Marriage Act allows decrees and orders under that Act to be enforced as if they were decrees of a civil court. In Rajnesh v. Neha the court also confirmed that contempt proceedings are available for wilful disobedience.
Deadline warning. The proviso to Section 144(3) of the BNSS bars a warrant for the recovery of any amount due unless the application to levy it is made within one year from the date on which that amount became due. Arrears left unclaimed month after month can quietly become unrecoverable by that route. If payments have stopped, move within the year rather than waiting to see whether they resume.
How a maintenance claim actually runs
- Pick the forum before you draft. Decide between Section 144 BNSS, the Domestic Violence Act, the matrimonial petition under the Hindu Marriage Act or Special Marriage Act, and a civil suit under the Hindu Adoptions and Maintenance Act, based on urgency, community, whether a divorce case is already pending, and what relief you actually need beyond money.
- Build the financial file first. Three years of income tax returns, six months of salary slips, all bank and credit card statements, EMI and loan schedules, rent receipts, school fee receipts, medical records and the property documents of both spouses.
- File the application with the Affidavit of Disclosure of Assets and Liabilities in the prescribed Rajnesh format, and file the interim maintenance application at the same time rather than later.
- Serve notice properly. The sixty day clock for disposal of an interim application under Section 144(1) BNSS runs from service, so defective service is the commonest cause of delay in these matters.
- Meet the reply deadline. The respondent files a reply with his or her own affidavit of disclosure within four weeks. If the disclosure is evasive, serve interrogatories and seek production under Order XI of the Code of Civil Procedure.
- Argue interim maintenance on documents, not adjectives. Courts fix interim amounts on the paper before them. A claim of expenses without receipts, or a plea of low income without returns, is worth very little at this stage.
- Disclose any earlier maintenance order in any subsequent proceeding, and ask the later court to record the set off, so the figure that finally survives is the correct one.
- Take out execution promptly on default. Apply under Section 144(3) or Section 147 of the BNSS, or in execution of the matrimonial order, and keep every application within the one year window for arrears.
- Apply to vary when circumstances actually change, under Section 25 of the Hindu Marriage Act, Section 25 of the Hindu Adoptions and Maintenance Act or Section 25 of the Domestic Violence Act, rather than simply reducing the payment unilaterally.
What I tell clients
The first conversation in a maintenance matter is almost never about law. It is about arithmetic, and most people arrive without any. What I ask for, before offering any view on quantum, is the same list every time: returns, salary slips, bank statements, loan schedules, and an honest monthly household budget. Clients on both sides resist this, for different reasons. The paying spouse wants to talk about conduct, and is often shocked that a court hearing an interim application will spend far more time on his EMI schedule than on who left whom. The claiming spouse frequently underestimates her own case, listing rent and groceries and forgetting school fees, insurance, medical costs and the transport that used to come with a family car she no longer has. Where these matters go wrong is rarely a bad judgment. It is an affidavit filed carelessly in month one that the other side dismantles in month nine; it is an interim order obtained and then never executed until the arrears crossed the one year line; and it is settlement talk that never gets reduced to a properly recorded consent order, so the same fight starts again eighteen months later. Get the documents right at the start and most of the rest becomes negotiation rather than litigation.
Because every order turns on the specific financial picture of the couple, two cases that look similar on the surface can be decided very differently. That discretion is a feature rather than a flaw, because it lets the court tailor relief to real circumstances instead of applying a blunt formula. If you are weighing your options, a candid assessment of both spouses' finances with an advocate experienced in divorce and maintenance disputes usually clears up more confusion than any rule of thumb ever will.
Frequently Asked Questions
Is there a fixed percentage of salary that must be paid as maintenance in India?
No. There is no statutory percentage. Courts decide the amount based on the needs, income, assets, liabilities and standard of living of both parties, so the figure varies from case to case.
Can a working woman still claim maintenance?
Yes, she can. Her income is one factor that may reduce the amount, but it does not automatically cancel her right, especially where there is a significant gap between the two spouses' earnings or lifestyles.
Can a husband ever claim maintenance from his wife?
Sections 24 and 25 of the Hindu Marriage Act, 1955 and Sections 36 and 37 of the Special Marriage Act, 1954 are worded so that either spouse may apply, so a husband unable to support himself whose wife has means can in principle claim. In practice such orders are uncommon and difficult to obtain.
What is the difference between interim and permanent maintenance?
Interim maintenance is temporary support and litigation costs awarded while the case is pending. Permanent maintenance or alimony is the final amount fixed at the conclusion of the proceedings, and it may be a lump sum or a periodical payment.
Can a maintenance amount be changed later?
Yes. If there is a material change in circumstances, such as loss of job, serious illness, remarriage or a significant change in income, either party can apply to the court to increase, reduce or cancel the maintenance.
From what date is maintenance payable?
Section 144(2) of the BNSS permits an order from the date of the application, and in Rajnesh v. Neha the Supreme Court directed that maintenance be awarded from the date of the application in all cases. Arrears for the period of the litigation are therefore common.
How long should an interim maintenance application take?
The second proviso to Section 144(1) of the BNSS requires disposal as far as possible within sixty days of service of notice, and Rajnesh v. Neha set an outer expectation of four to six months from the filing of the disclosure affidavits. Delay usually comes from defective service or repeated adjournments for the reply.
What is the Affidavit of Disclosure of Assets and Liabilities?
It is the sworn financial statement that Rajnesh v. Neha made mandatory for both parties in every maintenance proceeding, in a prescribed format, so that the court fixes the amount on disclosed income rather than assertion. Concealment can attract adverse inferences and further proceedings.
What happens if maintenance is ordered but not paid?
Under Section 144(3) of the BNSS the Magistrate can issue a warrant to recover the amount as a fine and can order imprisonment of up to one month for each month of default. Section 147 of the BNSS permits enforcement wherever the defaulter is found, and wilful disobedience can attract contempt. Apply within one year of each amount falling due.
Can a divorced Muslim woman claim maintenance under the general law?
Yes. In Mohd. Abdul Samad v. State of Telangana the Supreme Court held that a divorced Muslim woman may seek maintenance under Section 125 of the Code of Criminal Procedure, now Section 144 of the BNSS, in addition to her remedies under the Muslim Women (Protection of Rights on Divorce) Act, 1986.
This article is for general informational purposes only and does not constitute legal advice. Laws change and every situation is different; please consult a qualified advocate about your specific matter.
