Bharatiya Nagarik Suraksha Sanhita, 2023
Section 146
Alteration in allowance
(1) On proof of a change in the circumstances of any person, receiving, under section 144 a monthly allowance for the maintenance or interim maintenance, or ordered under the same section to pay a monthly allowance for the maintenance, or interim maintenance, to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration, as he thinks fit, in the allowance for the maintenance or the interim maintenance, as the case may be.
(2) Where it appears to the Magistrate that in consequence of any decision of a competent Civil Court, any order made under section 144 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly.
(3) Where any order has been made under section 144 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that—
(a) the woman has, after the date of such divorce, remarried, cancel such order as from the date of her remarriage;
(b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order,—
(i) in the case where such sum was paid before such order, from the date on which such order was made;
(ii) in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman;
(c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance or interim maintenance, as the case may be, after her divorce, cancel the order from the date thereof.
(4) At the time of making any decree for the recovery of any maintenance or dowry by any person, to whom a monthly allowance for the maintenance and interim maintenance or any of them has been ordered to be paid under section 144, the Civil Court shall take into account the sum which has been paid to, or recovered by, such person as monthly allowance for the maintenance and interim maintenance or any of them, as the case may be, in pursuance of the said order.
Why this exists
Maintenance orders are meant to support a dependent spouse, child, or parent, but life circumstances change—incomes rise or fall, remarriages happen, settlements are paid, or civil courts rule on related disputes like divorce or property. This provision (carried forward from Section 127 of the old Code of Criminal Procedure) ensures maintenance orders stay fair and updated rather than frozen in time, while also preventing double recovery of the same money through both criminal and civil proceedings.
How courts read it
Under the predecessor provision (Section 127 CrPC), courts held that 'change in circumstances' must be genuine and proved, not just claimed. Courts have also clarified that a wife's right to maintenance does not automatically end merely because she is capable of some income, and that the customary or personal law settlement referred to in clause (b) must actually match what was legally due at divorce, not just any payment made by the husband. Courts have been protective of the divorced woman's right to maintenance unless the specific statutory conditions for cancellation are clearly met.
Common misconceptions
- Myth: Once a maintenance order is passed, it can never be changed.
Fact: The law specifically allows the Magistrate to alter, increase, decrease, or cancel the order if circumstances genuinely change. - Myth: A divorced woman loses maintenance the moment she starts earning any income.
Fact: The section lists specific situations for cancellation—remarriage, full settlement received, or voluntary surrender of rights—not merely earning some income. - Myth: A person can claim the same maintenance amount twice, once from a criminal court and once from a civil court.
Fact: Subsection (4) requires civil courts to account for and deduct sums already paid under Section 144 orders, preventing double recovery.