Harmonising Maintenance Jurisprudence: The Judicial Creation of Ad-Interim Relief and the Impact of Rajnesh v. Neha Under Section 144 BNSS
Part 1: Title, Introduction & The Casus Omissus of Ad-Interim Relief
The legal framework governing matrimonial maintenance in India is designed as a social welfare shield to prevent destitution and maintain parity between litigating spouses. However, a rigorous analysis of statutory maintenance provisions—such as Section 24 of the Hindu Marriage Act, 1955 (HMA), Section 125 of the Code of Criminal Procedure, 1973 (CrPC), and its modern successor, Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)—reveals a stark procedural paradox.
While these statutes explicitly provide for ‘Interim Maintenance’ and ‘Final Maintenance’, the text of the law historically remained conspicuously silent regarding ‘Ad-Interim Maintenance’.
This statutory silence represents a classic casus omissus—a legislative gap where the law fails to provide an immediate procedural mechanism to protect a dependent spouse during the period between filing an application and the final adjudication of interim maintenance.
To prevent procedural delay from translating into human destitution, the Indian judiciary invoked its inherent jurisdiction to invent ‘ad-interim maintenance’ as a purely judge-made, emergency remedy.
This paper presents a detailed critique of maintenance jurisprudence. It explores the judicial creation of ad interim relief, analyses the procedural benchmark established in Rajnesh v. Neha, evaluates the continuity under Section 144 BNSS, and addresses the challenge of overlapping maintenance claims across civil and criminal forums.
The Doctrinal Anatomy of ‘Ad-Interim’ vs. ‘Interim’ Maintenance
Understanding the mechanics of matrimonial relief requires drawing a sharp legal line between interim maintenance and ad-interim maintenance.
| Type of Relief | Legal Character | Purpose | Timing |
|---|---|---|---|
| Interim Maintenance | Statutory interim support | Provides financial support during the pendency of proceedings | Generally determined after financial disclosures and preliminary consideration |
| Ad-Interim Maintenance | Emergency provisional relief | Bridges the immediate financial gap before interim maintenance is decided | Granted prospectively from the date of the court’s order |
Interim Maintenance
Statutory provisions like Section 24 HMA and Section 144 BNSS empower courts to grant interim support during the pendency of main proceedings.
Following the landmark Supreme Court mandate in Rajnesh v. Neha (2020), granting interim maintenance requires both parties to file detailed Affidavits of Assets and Liabilities.
Because assessing these comprehensive financial disclosures and holding preliminary arguments takes time, interim maintenance orders typically take months to finalise.
However, once granted, interim maintenance is generally made retroactive from the date of the application.
Ad-Interim Maintenance
Derived from the Latin phrase ad interim (“for the time being”), ad-interim maintenance is an emergency financial mandate.
It serves as a provisional grant of sustenance designed to bridge the immediate time gap while the court processes the fuller, more reasoned interim maintenance application.
Because it addresses immediate financial collapse, courts award ad-interim relief based on a prima facie evaluation of available, unrefuted material (such as admitted income or obvious hardship) without waiting for the exhaustive exchange of financial affidavits.
Crucially, unlike interim maintenance, ad-interim relief is awarded prospectively from the date of the court’s order.
Part 2: The Rajnesh v. Neha Paradigm & Overlapping Forum Conflicts
The Impact of Rajnesh v. Neha (2020) on Emergency Judicial Powers
The Supreme Court’s ruling in Rajnesh v. Neha fundamentally standardised maintenance adjudication across India.
By making comprehensive asset disclosure affidavits mandatory, the Court ensured transparency.
However, this procedural rigour inadvertently lengthened the time required to decide interim maintenance applications.
Consequently, the reliance on judge-made ad interim relief became even more essential as the primary financial defence for dependent spouses and children.
Judicial Treatment of Ad-Interim Orders
Under the Rajnesh v. Neha framework, high courts across the country have further clarified the boundaries of ad interim orders:
- Ad interim relief does not constitute a final determination of legal rights; it is a transient, emergency stopgap.
- It operates as an exercise of the court’s inherent power to ensure that the social welfare objectives of maintenance legislation are not defeated by the very procedural delays designed to achieve them.
Resolving the Conflict of Overlapping Maintenance Forum Shopping
While ad-interim relief solves the internal delay within a single court, matrimonial litigation in India continues to suffer from multi-forum litigation.
Applicants frequently file concurrent maintenance applications under Section 24 HMA, Section 144 BNSS, and the Protection of Women from Domestic Violence Act, 2005 (DV Act).
This multiplicity of remedies often leads to overlapping financial awards against a single respondent.
Doctrine of Set-Off and Adjustment
To prevent this, Rajnesh v. Neha established the Doctrine of Set-Off and Adjustment.
While a claimant is legally entitled to seek relief under different statutes, the court adjudicating a subsequent application is bound to take judicial notice of any prior maintenance or ad-interim award granted by a parallel court, adjusting the final quantum accordingly to prevent double recovery.
| Issue | Judicial Approach |
|---|---|
| Concurrent maintenance proceedings | Relief may be sought under different statutory provisions. |
| Prior maintenance award | The subsequent court should take judicial notice of the earlier award. |
| Overlapping financial relief | Amounts should be adjusted to prevent double recovery. |
Part 3: BNSS Reforms, Proposed Governance Framework & Endnotes
Procedural Efficiency Under Section 144 BNSS
The replacement of Section 125 CrPC with Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), preserves the summary welfare character of criminal maintenance while introducing procedural modernisations.
Section 144 BNSS incorporates strict timelines for disposing of interim applications and leverages electronic summonsing to curb delays.
However, Section 144 BNSS still does not explicitly codify the term ‘ad interim maintenance’.
Thus, judicial magistrates must continue to rely on the established judicial precedent of inherent jurisdiction to grant immediate, ex-parte, or prima facie ad-interim sustenance orders on the first date of hearing when clear hardship is demonstrated.
A Harmonised Statutory Framework for Matrimonial Courts
To preserve the delicate balance between rapid emergency relief and procedural fairness, family courts and magistrates should implement a standardised three-tier approach:
| Stage | Time Period | Proposed Judicial Action |
|---|---|---|
| Immediate Ad-Interim Order | Day 1 to 30 | Evaluate admitted income sources and immediate hardship and issue a temporary ad-interim award effective from the date of the order. |
| Mandatory Asset Disclosure | Day 30 to 60 | Enforce strict timelines for filing the standardised Affidavit of Assets and Liabilities mandated in Rajnesh v. Neha, penalising non-disclosure with perjury proceedings. |
| Final Interim Determination with Full Set-Off | After complete disclosure | Calculate the comprehensive interim maintenance amount retroactively from the date of the application, explicitly setting off all payments previously made under the ad interim order or parallel statutory proceedings. |
1. Immediate Ad-Interim Order (Day 1 to 30)
Upon the initial filing of a Section 144 BNSS or Section 24 HMA application, the court should evaluate admitted income sources and immediate hardship to issue a temporary ad-interim award effective from the date of the order.
2. Mandatory Asset Disclosure (Day 30 to 60)
Enforce strict timelines for filing the standardised Affidavit of Assets and Liabilities mandated in Rajnesh v. Neha, penalising non-disclosure with perjury proceedings.
3. Final Interim Determination with Full Set-Off
Calculate the comprehensive interim maintenance amount retroactively from the date of the application, explicitly setting off all payments previously made under the ad interim order or parallel statutory proceedings.
Conclusion: Equity Filling the Legislative Void
The judicial creation of ad-interim maintenance stands as a powerful testament to the Indian judiciary’s willingness to step in when statutory text remains silent.
By recognising casus omissus and exercising inherent powers, courts have ensured that procedural formalities do not frustrate the constitutional imperative of social justice.
As trial courts navigate maintenance applications under Section 144 BNSS and Section 24 HMA, maintaining the functional distinction between prospective ad-interim emergency relief and retroactive interim maintenance will ensure that dependent litigants receive immediate financial protection without compromising judicial fairness.
End Notes
- Hindu Marriage Act, 1955, s. 24, No. 25, Acts of Parliament, 1955 (India).
- Code of Criminal Procedure, 1973, s. 125, No. 2, Acts of Parliament, 1974 (India).
- Bharatiya Nagarik Suraksha Sanhita, 2023, s. 144, No. 46, Acts of Parliament, 2023 (India).
- Rajnesh v. Neha, (2021) 2 SCC 324: AIR 2021 SC 569.
- Protection of Women from Domestic Violence Act, 2005, s. 12, No. 43, Acts of Parliament, 2005 (India).
- Savitri v. Govind Singh Rawat, (1985) 4 SCC 337 (Establishing inherent power to grant interim relief under s. 125 CrPC).
- Aditi alias Manya v. Jitesh Sharma, 2023 SCC OnLine SC 1451.
- Bhuwan Mohan Singh v. Meena, (2015) 6 SCC 353.
- Chanmuniya v. Virendra Kumar Singh Kushwaha, (2011) 1 SCC 141.
- Bharatiya Nyaya Sanhita, 2023, s. 227, No. 45, Acts of Parliament, 2023 (India).
