Challenging a Maintenance Petition: First Steps

Being served with a maintenance petition is unnerving. A summons reaches your office or your parents' address, the papers name a monthly figure, and the first hearing is often only weeks away. Most men who call me at this stage ask the same question: how to challenge a maintenance case without turning it into a five-year war. The answer starts with paperwork, not argument. What you file in the first month — your appearance, your written reply, your affidavit of assets — shapes what the magistrate believes about your income and your conduct long before anybody argues about money.

Read the Petition and Note the Court

Before you react to the figure she has quoted, read the cause title. It tells you which court is hearing the matter, which provision the petition is filed under, and what exactly is being asked for. A claim of ₹50,000 a month under Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 is a very different proceeding from an application under Section 24 of the Hindu Marriage Act, 1955 filed inside a divorce petition. The route decides the defences available to you.

The table below maps the common routes. Check which one applies to your papers.

Then read the prayer clause and the date of the first hearing. Diarise the date immediately; a fresh date after default costs you both time and credibility. Look, too, for the affidavit of disclosure of assets and liabilities. In Rajnesh v. Neha the Supreme Court directed both spouses to file such an affidavit so that maintenance is decided on evidence rather than assertion. If she has not filed one, note it. You will still be expected to file yours.

Check Jurisdiction and Marriage Status

Two preliminary questions are worth settling before you spend money on the merits.

Where can she file?

A maintenance petition under Section 144 BNSS follows the venue rule carried over from Section 126(1) of the Code of Criminal Procedure, 1973. Proceedings may be taken in a district where the husband is, where he or his wife resides, or where he last resided with his wife. In practice this gives the wife a wide choice, and a jurisdiction objection often fails.

Say you live and work in Bengaluru while your wife has moved to her parents in Pune. She can file in Pune. Arguing that Bengaluru is the more convenient forum will not help unless the facts genuinely fall outside those three clauses. Raise a jurisdiction objection only when it is real; a failed objection costs you goodwill at the very first hearing.

Is the marriage still subsisting?

Read the provision she has invoked against your marital status. Section 18 of the Hindu Adoptions and Maintenance Act, 1956 presumes a subsisting marriage; once a decree of divorce is passed, a Hindu wife's claim has to be framed under Section 25 of the Hindu Marriage Act. If she has remarried, that is a fact to plead and prove. The bar in Section 125(4) CrPC, now part of Section 144 BNSS, applies where the wife is living in adultery, refuses to live with her husband without sufficient reason, or where the parties are living separately by mutual consent. These are defences to plead in the reply with material behind them, not accusations to throw in open court.

File Appearance and Written Reply

Engage counsel and file a vakalatnama or memo of appearance on or before the first date. Skipping the first hearing because the lawyer is not finalised is a bad trade: the magistrate may proceed ex parte and you will spend months applying to set that order aside.

The written reply, usually called the counter in maintenance proceedings, should be paragraph-wise. Admit what is true, deny what is false, and give reasons. The financial portion matters most:

• Net monthly income, proved by salary slips, Form 16 and bank statements.
• Fixed outgoings: rent, home loan EMI, insurance premia, school fees, medical costs of dependent parents.
• Any amount already paid to her since separation, with dates and payment references.
• Her own income, assets or earning capacity, shown through documents rather than suspicion.

Attach the affidavit of disclosure in the format indicated in Rajnesh v. Neha and swear it. A padded or false affidavit is the single most damaging document you can file. Courts now routinely compare the affidavit with the salary account statement, and an adverse inference on income can push the maintenance figure well beyond what an honest disclosure would have produced.

How to Challenge a Maintenance Case at the Interim Hearing

Most maintenance proceedings are effectively decided at the interim stage. The magistrate looks at affidavits, income proofs and the standard of living the wife enjoyed, then fixes a monthly sum pending final disposal. In Rajnesh v. Neha the Supreme Court asked courts to decide interim applications within about sixty days of service of notice, and indicated that maintenance should ordinarily be awarded from the date of the application. Both directions cut against delay, so prepare for the interim hearing as though it were the final one.

Bring a one-page chart: net take-home, essential outgoings, and what remains. If the remainder is ₹20,000, say so with the arithmetic attached. A specific, documented offer reads as good faith; a blanket denial reads as evasion and usually attracts a higher interim figure.

A worked example

Vishal, 34, works in IT services in Bengaluru and takes home ₹1,45,000 a month. His wife moved to her parents in Pune in 2025 and filed under Section 144 BNSS, seeking ₹40,000 a month. Vishal wanted to challenge jurisdiction, but the venue rule permitted Pune, so his lawyer dropped the point. His affidavit disclosed a ₹28,000 home loan EMI, ₹22,000 rent, ₹18,000 for his father's post-surgery care, and ₹9,000 a month he had already been sending her since separation. The magistrate fixed interim maintenance at ₹18,000 a month from the date of the application, giving credit for the ₹9,000 already paid each month. Because the disclosure was clean, the interim figure stayed close to Vishal's own projection rather than the ₹40,000 claimed.

Evidence, Witnesses and Contempt Risk

Once an interim order is passed, pay it on time, every month, by bank transfer. Keep the reference numbers. The enforcement provision — Section 125(3) CrPC, now carried into the BNSS — allows the magistrate to sentence a defaulter to imprisonment for up to one month for each month's default, or until payment is made. Interim orders are enforceable on the same basis, and persistent default also colours the final order on quantum.

At the evidence stage your case rests on documents more than on witnesses. Salary slips, bank statements, the income tax return and an employer's certificate of net pay carry more weight than a colleague's oral testimony. If your income has genuinely fallen, the amount can be altered on a change in circumstances under Section 127 CrPC, now in the BNSS. An application supported by a new salary structure is a legitimate step; quietly stopping payment is not, and it invites both enforcement and an adverse inference.

Your First Weeks: Action Checklist

• Note the case number, court, provision and next date, and put every hearing into a shared calendar.

• Collect twelve months of salary slips, Form 16, three years of income tax returns and twelve months of bank statements.

• List fixed outgoings with proof: rent agreement, EMI statements, insurance premia, school fees, parents' medical bills.

• File the vakalatnama and the paragraph-wise reply before the date fixed by the court.

• Swear the affidavit of disclosure of assets and liabilities honestly and keep a certified copy.

• Prepare a one-page income-and-expense chart for the interim hearing.

• Record every payment made to her by bank transfer and preserve the reference numbers.

Documents to Keep and Mistakes to Avoid

Maintain a single indexed file: the petition with annexures, your vakalatnama, the reply with the affidavit of disclosure, twelve months of salary slips, three years of income tax returns, twelve months of bank statements, loan sanction letters and EMI statements, medical bills for dependants, and proof of every payment made to her. Photograph the courier cover and the date stamp on the summons.

The mistakes I see most often are these. Treating the first hearing as a formality. Inflating your stated expenses to mirror her claim. Making allegations of adultery or cruelty in the reply without a single document. Stopping maintenance on your own because the amount feels unfair. And changing lawyers midway, which resets the court's understanding of your case.

If the papers reached you this week, the most useful thing you can do is open a file, note the next date, and hand your lawyer the income documents before the reply deadline rather than after it.

This article is for general information only and is not legal advice. Consult a qualified professional for your specific facts.