By S&S Co. Advocates & Solicitors · Published 5 October 2026 · Informational content, not legal advice. See our disclaimer
The Argument Spouses Often Raise
In maintenance proceedings, a spouse resisting or seeking to minimise a maintenance claim frequently points to existing monthly financial commitments, a home loan EMI, a vehicle loan, or similar obligations, as a reason why less disposable income is genuinely available to pay maintenance. The argument has intuitive appeal: if a large share of monthly income is already committed elsewhere, surely that constrains what can realistically be paid.
Why Courts Have Drawn a Distinction
The Supreme Court has addressed this argument directly, in the context of maintenance proceedings under Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (the successor provision to Section 125 of the former Code of Criminal Procedure). The Court distinguished between genuinely necessary expenditure, such as basic subsistence costs or support for dependants who already rely on the paying spouse, and loan repayments that are, in substance, directed toward creating or acquiring an asset for that spouse's own benefit.
The reasoning is that a loan taken to build an asset represents a form of investment or wealth accumulation chosen by the paying spouse. Allowing such a commitment to substantially dilute the maintenance obligation would, in effect, let a paying spouse prioritise their own future asset-building over the other spouse's present and basic need to live with dignity, a result the Court considered inconsistent with the primary, non-negotiable character of the duty to maintain a spouse who lacks independent means.
How Courts Actually Assess the Amount
Rather than starting from the paying spouse's residual income after all voluntary financial commitments and asking what is "left over," courts assess maintenance with reference to the paying spouse's actual earning capacity, balanced against the recipient spouse's reasonable needs. This is a more holistic inquiry than a simple subtraction exercise, and it means that a spouse cannot structure their finances, by taking on new loans or asset purchases, in a way calculated to reduce the maintenance ultimately payable.
Practical Implications
A spouse paying maintenance should not assume that an existing or newly taken loan EMI will automatically translate into a lower maintenance figure; the court will look at the underlying earning capacity and the purpose of the commitment. A spouse claiming maintenance, conversely, should be prepared to point out, where relevant, that the other spouse's loan commitments are directed at personal asset creation rather than necessary expenditure, since this distinction has been expressly recognised by the Supreme Court as relevant to how the claim should be assessed.
Frequently Asked Questions
Can I deduct my home loan EMI before calculating how much maintenance I owe my spouse?
Generally no. Loan repayments toward building or acquiring an asset cannot be equated with necessary expenditure so as to substantially reduce the primary obligation to maintain a spouse.
What expenses can legitimately reduce the amount available for maintenance?
Courts generally give more weight to genuinely necessary subsistence expenses, such as basic living costs and support for dependants already relying on the paying spouse, than to discretionary financial commitments taken on for asset creation.
Is maintenance based on my take-home income after all my commitments?
No. Courts assess maintenance having regard to the paying spouse's actual earning capacity, not merely residual income left over after voluntary financial commitments such as loans undertaken for personal asset-building.
Does this mean loan repayments are never relevant to a maintenance dispute?
They can still be placed before the court as part of the overall financial picture, but they are not treated as a deduction that takes priority over the primary obligation to maintain a spouse.
References & Further Reading
This article references the following general legal position. It is educational content, not advice on any specific dispute.
- Bharatiya Nagarik Suraksha Sanhita, 2023, Section 144 (maintenance of wives, children and parents), successor to Section 125 of the Code of Criminal Procedure, 1973.
- See our Legal News coverage of the Supreme Court's decision on this point, our general guide to Maintenance Under Section 144 BNSS, and our Family Law practice area for further reading.