Maintenance and alimony when one spouse lives abroad

Summary claim

BNSS section 144 (old CrPC 125)

Civil claim

HAMA 1956, HMA sections 24 and 25

Disclosure

Rajnesh v Neha affidavit

Overlap

Amounts adjusted across cases

Which maintenance law applies

In Mohd. Abdul Samad v. State of Telangana (2024) the Supreme Court confirmed that a divorced Muslim woman can also claim under the secular provision, in addition to her rights under the Muslim Women (Protection of Rights on Divorce) Act 1986. A wife living abroad can file in India where she resides, or under the DV Act where she temporarily resides, which often includes her parents' home.

Rajnesh v Neha: disclosure and overlapping claims

In Rajnesh v. Neha (2020) the Supreme Court set out guidelines that govern every maintenance case in India:

• Affidavit of disclosure: both parties file a detailed affidavit of assets, income, expenses and liabilities in the prescribed format, with supporting documents. For an NRI this means foreign salary slips, tax returns, bank and investment statements, and property abroad and in India.
• Overlapping proceedings: where claims are made under several laws, the later court takes into account maintenance already awarded, so there is adjustment rather than double recovery. Each claimant must disclose earlier proceedings and orders.
• Date of entitlement: maintenance is payable from the date of the application.
• Factors: the status of the parties, reasonable needs of the claimant and children, the claimant's own income and qualifications, the respondent's income and genuine liabilities, and the standard of living during the marriage.

False or incomplete affidavits can lead to adverse inferences and proceedings for perjury. Courts are alert to NRIs understating foreign income, and equally to claimants concealing their own employment.

How a foreign income is valued

An Indian court does not simply convert a foreign gross salary into rupees. It considers tax and mandatory deductions abroad, the cost of living where the respondent lives, other dependants, debts, and the needs of the claimant in India. Equally, a claimant cannot be denied a fair share of a high foreign income by pointing to expenses that are not genuine. Documentary proof is decisive: employment contracts, payslips, tax returns and bank statements from abroad, translated if necessary. We prepare disclosure affidavits for NRI clients that explain foreign figures in terms an Indian judge can assess.

Enforcing maintenance against a spouse abroad

Enforcement is where cross-border maintenance cases are won or lost. Under BNSS section 144, as under the old section 125, default can lead to a warrant for recovery as a fine and imprisonment for each month's unpaid amount, provided recovery is sought within one year of the amount falling due. Civil orders are executed like decrees.

• Indian assets: attachment of bank accounts, rent, salary paid in India, and property in India is usually the most effective route.
• Warrants and travel: a respondent who defaults faces warrants when he next visits India, and courts have in some cases taken steps concerning the defaulter's passport. This pressure often produces settlement.
• Abroad: India has an older framework, the Maintenance Orders Enforcement Act 1921, for some Commonwealth territories, but its practical reach is limited. Often the claimant must bring a fresh claim, or a recognition application, in the country where the respondent lives, using the Indian order as evidence. See enforcing foreign judgments for the reverse direction.

Because enforcement abroad is slow, a lump-sum permanent alimony settlement, paid before or at the time of a mutual consent divorce, is often the most reliable outcome for both sides.

If you are the NRI spouse facing a claim

Do not ignore notice of a maintenance case. An ex parte order can be passed in your absence and then enforced when you visit India. Appear through counsel, seek exemption from personal appearance, and file a truthful disclosure affidavit. Relevant defences include the claimant's own income or earning capacity, payments already made, an existing order in another case that must be adjusted, and genuine liabilities abroad. Maintenance cases often run alongside criminal complaints, so plan any visit to India with your criminal defence position in mind.

If you are the spouse abroad making the claim

A wife who has moved abroad, or returned abroad after separation, is not shut out of Indian remedies. Under BNSS section 144 the application may be filed where the respondent lives, where the claimant lives, or where the couple last lived together, and the Domestic Violence Act allows filing where the aggrieved woman permanently or temporarily resides. Courts have been flexible about a claimant who divides her time between India and another country, but the choice of court should be made deliberately and explained in the petition.

You may also have a claim for spousal or child support in your country of residence. Which forum is better depends on where the respondent earns and holds assets, how quickly each court acts, and whether a divorce is being sought at the same time. We work with your lawyer abroad so that the two claims do not contradict each other and amounts are properly adjusted. Your affidavits and the vakalatnama are signed abroad before a notary with apostille or at the Indian mission, and many courts let you give evidence by video.

Maintenance for children

A child's right to maintenance is independent of the parents' dispute, and courts protect it firmly. Child maintenance covers food, housing, schooling, medical care and reasonable extracurricular costs, and usually continues until majority, longer for an unmarried daughter under personal law or for a child with a disability. Where the child lives abroad with one parent, the court considers the actual cost of education and living in that country. Where the child lives in India and the earning parent is abroad, school fees paid directly to the school are a common, verifiable way of meeting part of the obligation.

Costs and timelines

Court fees for maintenance applications are minimal. Interim maintenance is meant to be decided quickly, often within a few months, though practice varies. Final orders and enforcement can take much longer. Our fee is quoted in stages: application or reply, disclosure affidavit, interim hearing, evidence and enforcement.

Documents you need

Disclosure drives these cases, so both claimants and respondents need complete financial papers.

• Marriage certificate and any divorce or separation papers
• Children's birth certificates and school fee records
• Salary slips, employment contract and tax returns, including foreign ones
• Bank, investment and property statements in India and abroad
• Monthly expense details with proof
• Copies of any other cases and orders between the parties
• Passport, OCI card and visa details
• Power of attorney for the person acting in India

How we handle it for you

1. Assessment call

   We review incomes, assets and any other cases, and estimate a realistic range.

2. Disclosure affidavit

   Rajnesh v Neha affidavit prepared with foreign documents explained.

3. Filing or reply

   Application filed, or reply with defences, signed abroad and filed in India.

4. Interim maintenance

   Hearing on interim maintenance, with video participation where allowed.

5. Final order, settlement or enforcement

   Permanent alimony settlement or enforcement against Indian assets.

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