सं Samvidhan

Bharatiya Nagarik Suraksha Sanhita, 2023

Section 146

Alteration in allowance

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.