Jai Narain Vyas University, Jodhpur

B.B.A. LL.B. 5th SEMESTER

Subject: - CODE OF CRIMINAL PROCEDURE, 1973

Topic : - MAINTENANCE - SEC. 125

Roll No. : - 19BBL50023

Submitted to: - Submitted by:-

Dr. RAJESH PUROHIT PRIYANSHU GOPA

 ACKNOWLEDGMENT

I would like to express my special thank of gratitude to our dean

ma’am Dr. Chandan Bala and our teacher Dr. Rajesh Purohit gave
me the golden opportunity to do this project on topic Maintenance -
Sec. 125. Which help me in doing lot of research and I came to know
with new things. Secondly I would like to thank my friends who help
to make me this project on limited time.
 CONTAINT

1. Introduction
2. Who can claim and get maintenance
3. Essential conditions for granting maintenance
4. Jurisdiction of Magistrates to deal with maintenance proceedings
5. Procedure for maintenance
6. Alteration in allowance
7. Enforcement of order of maintenance
8. Bibliography
Introduction

• Maintenance under the Cr.PC is secular in nature, as any woman belonging to and
practicing any religion or faith can approach the Court under this. The law of
maintenance is given under the Sections 125-128 of the Criminal Procedure Code.
• Under this Section, maintenance can be claimed by the wife, children and parents.
Section 125 to 128 provide for a speedy, effective and rather inexpensive remedy against
persons who neglect or refuse to maintain their dependant wives, children and parents.
• The word ‘Maintenance’ is not defined in the Code of Criminal Procedure, 1973. Chapter
IX of the Code of Criminal Procedure deals with provisions for maintenance.
• ‘Maintenance’ in general meaning is keeping something in good condition.
‘Maintenance’ in legal meaning is money (alimony) that someone must pay regularly to a
former wife, husband or partner, especially when they have had children together. It is
the duty of every person to maintain his wife, children and aged parents, who are not able
to live on their own.
• The proceedings are not punishable in nature. The main objective of Chapter IX of Cr.PC
is not to punish a person who is not maintaining those whom he is bound to maintain.
• The main objective is to prevent homelessness by way of procedure to provide a speedy
remedy to those who are in pain.
• It does not make any distinction between persons belonging to different religions or
castes.
• It has no relation to the personal laws of parties.
Who can claim and get maintenance?

• Section 125 of the code deals with “Order for maintenance of wives, children and parents”.
According to Section 125(1), the following persons can claim and get maintenance:

1. Wife from his husband,

2. Legitimate or illegitimate minor child from his father,
3. Legitimate or illegitimate minor child (physical or mental abnormality) from his father
4. Father or mother from his son or daughter

Wife

• Wife and it includes even those cases where a man and woman have been living together as
husband and wife for a reasonably long period of time. Strict proof of marriage should not be
a precondition of maintenance under Section 125 of the Cr.PC.

• Marriage of women in accordance with Hindu rites with a man having a living spouse is
completely nullity in the eye of law and she is not entitled to benefit under Section 125 of the
code. ^The Supreme Court held that maintenance can be allowed to the wife when her
husband is impotent.

• A wife can claim and get maintenance from her husband in the following conditions:

1. She is divorced by her husband, or

2. Obtained divorce from her husband, and
3. She has not remarried, and
4. She is not able to maintain herself.

• Muslim wife can also claim maintenance under Cr.PC though they have a separate Act
(Muslim Women Protection of rights on Marriage Act) for them.

• A wife can not claim and get maintenance from her husband in the following conditions:
 1. Wife living in adultery, or
2. Refuses to live with husband without any valid reasons, or
3. Living separately by mutual consent.

Legitimate or illegitimate minor child

Son & Daughter

• ‘Minor’ means a person who, under the provisions of Section 3 of the Indian Majority Act,
1875 is deemed not to have attained his majority i.e., above the age of 18 years. Minor Son
(Legitimate or Illegitimate) is entitled to get maintenance under Section 125 of Cr.PC.
• If Minor Daughter (Legitimate or Illegitimate) is unmarried, then she is entitled to get
maintenance from her father and if she is married, then she is also entitled to get maintenance
from his father but the magistrate has to be satisfied that her husband has not essential and
sufficient means for the maintenance of his minor wife.

Legitimate or illegitimate abnormal child who has attained majority

• If any major child (Legitimate or Illegitimate) is abnormal (mentally or physically unfit),

then the father of that child has to maintain him and he can claim maintenance on this ground
of abnormality.

Father or mother

• Natural father and mother can claim maintenance, Mother includes adoptive mother, she can
claim maintenance from adoptive son. A childless
• Father can claim maintenance, it is a statutory obligation, this claim cannot be defeated by
pleading that the father failed to fulfill his parental obligation.
• Stepmother can claim maintenance.

• Father or mother can claim maintenance under Section 125(1)(d) if he or she is unable to
maintain himself or herself. But it is also important that if parents claim maintenance to their
children, children must have sufficient means to maintain their parents and yet neglects or
refuses to maintain the father or mother.
Essential conditions for granting maintenance

• Sufficient means to maintain the person

If any person has sufficient means for maintenance, then it is his duty to maintain his wives,
children and parents. If sufficient means are not available, then it will be a perfect and valid
defense for people who are legally bound for maintenance of wife, children and parents.

• Neglect or refusal to maintain

Any person neglects or refuses to maintain his wives, children and parents in mollified
intention or in any type of egoistic behavior on the demand for maintenance by them.

• The person who claims maintenance must be unable to maintain himself/herself

It is a very important condition for granting maintenance that a person who is claiming
maintenance must be unable to maintain himself/herself. For example- If a wife is earning
well, then she cannot claim maintenance under this Section. The wife who is hale and
healthy and is sufficiently educated to earn for her but refuses to earn from own and claim
maintenance from her husband will be entitled to claim maintenance but that her refusal to
earn under the circumstances would disentitle her to get complete amount of maintenance

• Special provision for maintenance of minor married girl

If the husband of a minor daughter does not have sufficient means to maintain her, then it is
the duty of her father to give maintenance. In these circumstances, married minor daughter is
entitled to get maintenance from the father

• Quantum of maintenance

Quantum of maintenance means the amount of maintenance. Quantum of maintenance

depends on the standard of living. For example- If any issues rise in a rich family, then
demand for maintenance will be more as compared to poor family according to their standard
of living in a prior life.
Jurisdiction of Magistrates to deal with maintenance proceedings

• According to Section 125(1)(d), If any person neglects or refuses to maintain his wife,
children or parents, then a Magistrate of the First Class can order such person to make a
monthly allowance for the maintenance of his wife, children or parents, at such monthly rate
as such Magistrate thinks fit, and to pay the same to such person as the direction of
magistrate.
• If a minor female child is unmarried, then the magistrate can order to make such allowance,
until she attains her majority. In case a minor child is married and the magistrate is satisfied
that the husband of such minor female child is not possessed of sufficient means, then the
magistrate can order father of the minor female child to make such an allowance for
maintenance.
• When a proceeding is pending regarding monthly allowance for maintenance, the Magistrate
can order such person to make a monthly allowance for the interim maintenance of his wife,
children or parents and the expenses of such proceeding which the Magistrate considers
reasonable.
• An application for the monthly allowance for the interim maintenance and expenses of
proceeding should be disposed within sixty days from the date of the notice of the application
to such person.
• According to Section 125(2), If a court order for such allowance for maintenance or interim
maintenance and expenses of the proceeding, then it should be payable from the date of the
order or if so ordered, then it shall be payable from the date of application for maintenance
and expenses of proceedings.
• According to Section 125(3), If any person fails to comply with the order without sufficient
cause, then Magistrate can order to issue a warrant for levying the amount with fines. If the
person again fails after the execution of the warrant, then the punishment of imprisonment
for a term which may extend to one month or until payment of sooner made is awarded.
Procedure for maintenance

• Section 126 of Cr.PC deals with “Procedure for maintenance”.

• Proceeding under Section 125 may be taken in the following district:
1. Where he is, or
2. Where he or his wife resides, or
3. Where he last resided with his wife or mother of an illegitimate child.
• Evidence to be taken in the presence of a person against whom maintenance is to be ordered.
• If a person is willfully avoiding summons, then ex-parte evidence is taken in that case.

Alteration in allowance

• According to Section 127(1), if a magistrate ordered to give allowance for maintenance under
Section 125 according to the conditions of parties at that time, but if the present conditions of
parties have changed, then he can also order to alter the allowance.
1. Husband had a well-settled job and means for maintenance, on this basis the Court has
ordered him to maintain his wife and to allowance under Section 125. But in the present
condition, the husband has no job and means for maintenance. Then, the Court can alter
the allowance and can reduce the amount of allowance.
2. If a wife was not having any job or she was unable to maintain herself and she got the
order of allowance under Section 125. But after some months, she is well settled and she
has the means to maintain herself. In this case, the Court can order to remove or cancel
allowance.

• According to Section 127(2), Magistrate shall cancel or revoke any order given under Section
125 by him, if it appears that it should be cancelled in consequences of any decision of the
competent Civil Court.
• According to Section 127(3), where an order has been made in favor of women under Section
125, then the magistrate can cancel the order in the following case:
1. If a woman is remarried after divorce.
2. If a woman has taken allowance under any personal laws after divorce.
 3. If a woman has voluntary leave her right to maintenance.
• According to Section 127(4), the Civil Court shall take into account the sum which has been
paid to such person as monthly allowance for maintenance and interim maintenance under
Section 125 at the time of making any decree for the recovery of any maintenance or dowry.

Enforcement of order of maintenance

• Section 128 deals with “Enforcement of order of maintenance”. According to this Section,
the following are the conditions for enforcement of the order of maintenance:
• Copy of order under Section 125 is given to that person free of cost in whose favor it is
made. In case the order is in favor of children, then the copy of the order will be given to the
guardian of children.
• If any Magistrate has made an order under Section 125, then any Magistrate of India can
enforce this order where that person lives who has to give maintenance.
• The Magistrate has to satisfy two conditions before enforcement of order:
1. Identity of parties, and
2. Proof of non-payment of allowances.
Bibliography

1. Rattan lal, code of criminal procedure (2016)

2. Bare act, kanoon prakashak (2019)
3. Universal’s criminal manual (2017)
4. www.investopedia.com/mantenance