It has been some time since the new criminal laws including the Bharatiya Nagrik Suraksha Sanhita, 2023 (hereinafter referred to as BNSS) has come into force. In this context, it is to be noted that Section 144 of BNSS, when juxtaposed with Section 125 of the Code of Criminal Procedure,1973, (hereinafter referred to as Cr.P.C.) reveals a critical and consequential shift in the scope of maintenance rights of children, while raising a critical interpretive concern, particularly with respect to the position of married major daughters.

Notably, the approach of Section 125, Cr.P.C, in relation to maintenance of children was structured and limited: Section 125(1) (b) entitled 'minors', whether married or not, to claim maintenance in case they were unable to maintain themselves, while Section 125 (1) (c) operated as a tailored exception covering children who had attained majority (except married daughters), only in cases of physical or mental incapacity. Further, the proviso to Section 125(1) addressed the specific case of a married minor daughter, enabling the Magistrate to direct the father/mother to provide her maintenance until she attained majority, if her husband was not possessed of sufficient means to maintain her.

In contrast, Section 144 of BNSS marks a departure from this scheme and apparently appears to adopt a broader formulation by deleting the word 'minor' from clause (b). Interestingly, it substantially retains clause (c) and the proviso in their earlier form.

For ease of reference, the concerned portion of Section 144(1) reads as follows:

“(1) If any person having sufficient means neglects or refuses to maintain—

(b) his legitimate or illegitimate child, whether married or not, unable to maintain itself; or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself;

a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of such child, at such monthly rate as such Magistrate thinks fit and to pay the same to such person as the Magistrate may from time to time direct:

Provided that the Magistrate may order the father of a female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such female child, if married, is not possessed of sufficient means......”

A close examination of the above text gives rise to three pertinent questions:

Question 1: By deleting the word “minor”, Section 144(1)(b), BNSS, implies that all children, including major sons and major daughters, can now claim maintenance from their father/mother if they are unable to maintain themselves. If that is so, then what functional necessity does clause (c) retain as a separate and distinct provision, covering major children suffering from physical or mental incapacity?

Question 2: What is the precise purpose of excluding a married daughter in clause (c) and the proviso specifically directing the father (includes mother) to maintain his/her female child (read married daughter) until she attains majority in the event of her husband not maintaining her, when clause (b) itself appears to be broad enough to encompass all children, whether married or not, without any express age-based limitation?”

Question 3: Does the present drafting, when read with the proviso, imply that despite the omission of the word 'minor' in clause (b), married major daughters stand excluded, in contrast to sons, who, irrespective of their age and marital status, continue to remain entitled to claim maintenance under this provision?

The above questions call for an interpretive analysis of the provision, particularly in light of the apparent internal inconsistencies it presents. Notably, under Section 125 Cr.P.C., the scheme regarding maintenance of children was coherent: while clause (b), as a general rule, confined this entitlement to minor children, clause (c) carved out a limited exception for majors in an otherwise minor-centric framework. Further, clause (c), explicitly excluding the major married daughters from its ambit, and the corresponding proviso, did not pose any interpretive challenge, as it operated within the same minor-centric structure of the provision. Both the clauses were therefore doctrinally well-defined, functionally distinct, and internally consistent.

Coming to Section 144 of BNSS, while the language of clause (b) suggests inclusivity, the simultaneous retention of clause (c) creates an irreconcilable internal contradiction. If clause (b) of Section 144 is read literally, it appears to encompass every child unable to maintain itself, whether the child is a major or minor, married or unmarried. If this literal meaning is to be adopted, clause (c) becomes largely redundant, since a 'major' child suffering from some 'physical or mental incapacity' is already included within the category of a 'child' under clause (b).

The retention of clause (c) gives rise to another significant interpretive dilemma regarding the status of married major daughters who are paradoxically both included and excluded within the same statutory framework under BNSS. While married daughters having attained majority are textually included within the broad scope of children under clause (b), yet they are structurally excluded through clause (c).

Further, the proviso obliging a father/mother to maintain his/her married female child till majority in special circumstances, also seems to be an unnecessary carry-over from Section 125, Cr.P.C., which compounds the legislative obscurity. It is argued that while the proviso addressing the specific vulnerability of a married minor daughter made perfect sense in the previous scheme under Cr.P.C. which was anchored in a minor-centric framework, it becomes conceptually misplaced under BNSS, as clause (b) of Section 144 ostensibly extends the entitlement to all children irrespective of age.

Section 144, BNSS, therefore, creates a serious drafting ambiguity. The structural retention of exclusion under clause (c) and the minor-centric proviso suggests that the legislature has not yet fully departed from the traces of the earlier framework under Section 125 Cr.P.C. What is more significant is that this ambiguity distorts both the interpretation and impact of the current provision- married major daughters remain excluded from the maintenance regime, while sons, not being subject to any comparable exclusion, continue to enjoy a broader entitlement, irrespective of age or marital status. The deeper problem is therefore not merely imperfect drafting; the provision culminates in a tangible gender disparity, wherein the law, despite appearing inclusive, operates in a manner that structurally disadvantages married daughters.

Until courts interpret this provision correctly or the Parliament amends it, the position remains uncertain.

Author Anuleena Bhattacharjee is an Assistant Professor & Mayukh Parial is a 5^th Year, BBA LL.B. (Hons.) student at Dept. of Law, University of Engineering and Management, Kolkata. Views are personal