Section 438 and 422 of BNSS

Source: Madras High Court  

Why in News? 

Recently, Justice Shamim Ahmed upheld a Family Court order directing a husband and his two sons to pay ₹21,000 monthly maintenance to the wife/mother, emphasizing that it is a man’s legal and moral duty to support his wife and mother, ensuring dignity and care in their old age. 

• The Madras High Court held this in the matter of RAP v. AM  (2025). 

What was the Background of RAP v. AM  (2025)? 

• The present criminal revision petition arose from a maintenance dispute under Section 125 of the Code of Criminal Procedure (CrPC)1973. 
• The marriage between the first petitioner and the respondent was solemnised on 7th January, 1986. The respondent voluntarily deserted the matrimonial home and left the petitioners during the year 2015. 
• After a period of four years from the date of desertion, the respondent instituted proceedings before the Family Court, Madurai in M.C. No. 64 of 2019, seeking monthly maintenance of Rs. 40,000/- along with recovery of gold jewellery weighing 290 sovereigns allegedly given as marriage gifts and recovery of Rs. 5,00,000/- from the petitioners. 
• The Family Court, Madurai, vide its order dated 18th March, 2025, awarded Rs. 21,000/- per month as maintenance allowance to the respondent. Aggrieved by this order, the petitioners preferred the present criminal revision petition under Section 438 read with Section 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023. 
• The petitioners contended that the first petitioner, being over 60 years of age, was suffering from health complications and remained without any source of income. The second petitioner's income was allegedly meager and insufficient to manage his own household expenses, medical expenditure for his father, and maintenance of his wife and children. The third petitioner, employed in Bangalore, was stated to have inadequate income to meet his personal expenditures and frequently required financial assistance from the second petitioner. 
• The petitioners further submitted that the respondent possessed sufficient financial means, as evidenced by her maintenance of a personal vehicle and employment of a driver. They alleged that the Family Court failed to consider that the respondent was residing separately without just or reasonable cause and therefore was not entitled to claim maintenance. The petitioners expressed their willingness to provide care for the respondent as their wife and mother respectively.

What were the Court’s Observations? 

• The Court observed that maintaining one's mother and wife is both a legal and moral obligation. This duty stems from the inherent responsibility of children to care for parents and husbands to support wives during old age. The Court emphasised this constitutes a legal obligation recognised in various jurisdictions through statutory provisions mandating financial support for aging parents. 
• The Court pronounced that husbands and sons bear social responsibility to maintain their wives and mothers respectively. The invaluable care provided by a mother cannot be adequately compensated through monetary means, and no payment can compensate for the pain and sacrifices endured during childbirth and child-rearing. 
• The Court found petitioners failed to demonstrate any illegality, impropriety, or incorrectness warranting judicial interference. The maintenance amount of Rs. 21,000/- was held reasonable considering prevailing rising prices and high cost of living. 
• The Court recognised Section 125 CrPC as beneficial legislation enacted to prevent vagrancy of destitute wives and mothers. The undisputed relationship between parties (husband-wife and mother-sons) was noted. 
• The Court concluded the impugned order required no interference to meet ends of justice. Finding no illegality or abuse of process, the Criminal Revision Petition lacked merit. Consequently, the petition was dismissed and the Family Court was directed to proceed in accordance with law. 

What are Sections 438 and 442 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) 

• Section 438: Calling for Records to Exercise Powers of Revision 
  • High Court and Sessions Judge can call for and examine records of any proceeding before inferior Criminal Courts within their jurisdiction to check the correctness, legality, or propriety of findings, sentences, or orders. 
  • All Magistrates (Executive or Judicial, original or appellate) are deemed inferior to Sessions Judge for revision purposes under this section. 
  • Interim relief can be granted by suspending execution of sentence/order and releasing accused on bail during record examination. 
  • Revision powers cannot be exercised for interlocutory orders in appeals, inquiries, trials, or other proceedings. 
  • No duplicate applications - if one person applies to either High Court or Sessions Judge, no further application by same person to the other court is allowed. 
• Section 442: High Court's Powers of Revision 
  • High Court's discretionary power to exercise revisional jurisdiction in cases where records are called for by itself or otherwise come to its knowledge, with powers similar to appellate and sessions courts. 
  • Natural justice principle - no prejudicial order against accused can be made without giving opportunity of being heard personally or through advocate. 
  • Fundamental limitation - High Court cannot convert a finding of acquittal into conviction under revisional powers. 
  • Bar on revision - where appeal lies but no appeal is brought, revision cannot be entertained at the instance of party who could have appealed. 
  • Conversion provision - High Court may treat revision application as appeal petition if made under erroneous belief that no appeal lies and interests of justice so require. 
  • Equal division clause - when revision court judges are equally divided in opinion, case disposal follows Section 433 procedure.