Introduction

Filial Obligation has been a cornerstone in the Indian tradition, culture, social and spiritual ethos since the very beginning. It refers to the moral duty, responsibility and care that adult children owe to their aging or infirm parents. It does not remain only a moral expectation but also transformed into a statutory mandate which reflects the State’s commitment to social justice and welfare under Article 39 of Constitution of India.

Section 144 of The Bharatiya Nagarik Suraksha Sanhita, 2023 corresponds to the Section 125 of The Code of Criminal Procedure, 1973. This Section 144 BNSS codifies this obligation of a person maintaining-

• his wife (unable to maintain herself),
• his children (legitimate or illegitimate, whether married or not, unable to maintain itself),
• disabled child (legitimate or illegitimate who has attained majority, unable to maintain itself)
• his father or mother (unable to maintain itself).

It mandates that the individual with sufficient means cannot abandon their parents to a life of penury. This article provides a comprehensive legal analysis of the filial obligation enshrined in Sec. 144 BNSS.

Statutory Framework of Section 144 BNSS

This provision is applicable and enforceable irrespective for the personal law by which the persons concerned are governed.¹ Section 144 (1)(d) states the right of parents (mother or father) to claim maintenance from their children having sufficient means neglect or refuses to maintain. It is substantially similar to Section 125(1)(d) CrPC and therefore, judicial precedents developed under earlier provision to guide its interpretation.

To claim maintenance under this provision, there are following essentials must be fulfilled:

1. Inability to maintain : The parent must be unable to maintain himself or herself.
2. Sufficient means : The child must possess sufficient means to provide maintenance.
3. Neglect or Refusal: The child must have neglected or refused to provide maintenance.

Magistrate of the First Class may upon proof order such person to make monthly allowances for their maintenance. Orders passed under this section do not finally determine the rights and obligations of the parties.²

¹ Nanak Chand v. Chandra Kishore, AIR 1970 SC 446

² Ranjeeta Deepak Balsekar v. Deepak Baburao Balsekar, AIR 2009 NOC 2412 HP

Who can be the Claimant?

The term “Father” or “Mother” are not defined under this act but through judicial precedents we can rely that Biological Parents are unequivocally covered. The real question arises regarding adoptive parents and step-parents.

If adoption satisfies the statutory requirement then Adoptive parents are legally equal to the biological parents and possess right to claim maintenance.

However, there are different opinion among High Courts regarding the claim by step-parents. The Hon’ble Supreme Court to achieve the intent of legislature ruled that a childless step-mother could claim maintenance from her step-sons provided she was widow of her husband and was also incapable of supporting and maintaining herself.³

Who is liable to maintain?

Historically, the obligation of caring parents, who are aged or infirm, lies on the shoulders of the son. Daughters upon their marriage were considered as part of their marital family. This social structure has not found place in Sec 144 (1)(d). The word ‘his’ in clause (d) includes both female and male children. Therefore, a married daughter is liable to maintain her parents.⁴

Is son/daughter-in-law is liable to maintain parents-in-law?

The Hon’ble Allahabad High Court observed that the right to claim maintenance under sec 144 BNSS is a statutory right and is confined only to the categories of persons expressly mentioned therein, a bench of Hon’ble Justice Madan Pal Singh noted that parents in law do not fall into within the ambit of sec 144 BNSS. The court also stressed that a moral obligation, however compelling it may appear, cannot be enforced as a legal obligation in the absence of a statutory mandate.⁵

How is the Quantum of Maintenance calculated?

There is no formula to calculate the quantum of maintenance. The Hon’ble Supreme Court laid down several factors that needed to be considered while assessing the quantum of maintenance.⁶ This list includes:

• Status of the parties,
• Needs of the applicant/claimant,
• Income and property of the respondent,
• Cost of living, etc.

Procedural Dynamics and Statutory Timelines

The proceeding under section 144 BNSS is summary in nature. The procedure of proceeding initiated under the aforesaid section is given in Section 145 BNSS. This section deals with the following aspects:-

1. Jurisdiction
2. Mode of taking evidence
3. Grant of Cost

There is a change in this Section 145 BNSS, whose corresponding Section 125 CrPC, after the enforcement of New Criminal Laws in 2023. The Clause (d) has been added in Sub-section (1) of Section 145. This newly added clause provides that proceeding for Maintenance under Sec. 144, under this Section can be pursued now in any district where such person’s father or mother resides. The another change the word advocate has been replaced by the word Advocate.

Jurisdiction: The application w/s 144 BNSS can be filed before a Judicial Magistrate of First Class in any of the following places:

• Where the parents themselves reside
• Where the children present
• Where the children reside.

Interim Maintenance : Magistrate may order payment of Interim maintenance allowance to the aggrieved person as he consider reasonable to minimize the hardship of the aggrieved person. It is also proposed that this order be made ordinarily within Sixty days from the date of service of notice.

Issuance of Warrant: The Magistrate can issue a warrant for levying the due amount.

Imprisonment : Magistrate is empowered to sentence the defaulting child to imprisonment. The sentence may be extended to one month. However, imprisonment is not an absolution from liability. The liability to pay remains.⁷

Conclusion

Section 144 BNSS provide a remedy that operates concurrently with the Maintenance and Welfare of Parents and Senior Citizen Act, 2007. Parents have right to choose the suitable forum but they cannot claim maintenance under both laws. The legislative commitment to social justice by mandating children must support their parents has been rightly achieved. It successfully balanced the moral and legal accountability of children. However, filial obligation cannot be entirely legislated within some provisions; it requires social awareness to achieve it’s goal. It must be ensured that Aged parents are supported through family bonding and care rather than a Magistrate’s order. After all, they just need love, care and peace.