Maintenance of wives,

children and parents

Ch-IX, Sec 125-128 CRPC
• Provisions for maintenance of wives, children and parents provide speedy, effective
and cheap remedy
• Meaning: The term 'maintenance' has not been defined in the Code. The term should
not be narrowly constructed as limited only to food, clothing and shelter. It also
includes means of subsistence, supply of necessaries, aid, support and assistance
which one person needs for his or her living. It varies according o the position and
status of person.
• Object: The object of these provisions is to prevent starvation, destitution and
vagrancy to dependants.
It is enacted to achieve the goal of social justice. It is speedy remedy and effective
against those who refuse of maintain their parents, children and wife.
• Supreme Court in Bhagwan Dutt v. Kamala Devi, (1975) 2 SCC 386 laid down following
objectives of Section 125 of the Code:-

1. The remedy under Section 125 is speedier and economical than the remedy
enforced by way of civil courts. So, it will be beneficial for needy persons.
2. It aims at preventing destitution and vagrancy leading to commission of crime.
• Scope: These provisions do not fully determine the status of personal rights of the
parties. The court would take prima facie view of facts and it need not go into the
details of matrimonial dispute.
• In Mohd.Ahmad Khan v. Shah Bano Begum, (1985) 2 SCC 556, also Supreme
Court held that provisions of Section 125 are applicable to the parties irrespective
of personal laws. These provisions are secular in nature.
• In Nand Lal Mishra v. Kanhaiya Lal Mishra, AIR 1960 SC 882], it was held that the
relief given under this chapter is essentially civil in nature. However, the findings
of the Magistrate are not final and the parties can legitimately agitate their rights
in a civil court even after the order of Magistrate.
• Provisions contained in Sections 125-128 are applicable to all persons belonging to
all religions and have no relationship with personal law of the parties [Nanak
Chandra v. Chandra Kishore, (1969) 3 SCC 802]
• Law Commission's views: 41st report of Law Commission emphasized that primary
justification for placing these provisions in Code of Criminal Procedure is because
it is speedy and economical remedy compared to what is available in Civil Courts.
• Who may claim maintenance?
Section 125(1) provides that following persons are entitled to claim maintenance if they are
unable to maintain themselves:
I. Wife
II. Legitimate or illegitimate minor child (whether married or) not
III. Legitimate or illegitimate major child (not being a married daughter) if by reason of any
physical or mental abnormality or injury he is unable to maintain himself.
IV. Father and Mother

Wife : According to Section 125, a wife who is unable to maintain herself can claim maintenance.
Explanation (b) to Section 125 defines 'wife’ to include a divorced wife who has not remarried.
Thus it is only an inclusive definition stating that even divorced wife can claim maintenance if
she has not remarried apart from legally wedded wife who is not divorced.
• The wife may be of any age- minor or major.
• The extension of definition of wife to cover divorced wife also is intended to prevent
unscrupulous husbands from frustrating the legitimate claims of the wives by divorcing them.
This explanation is aimed at securing social justice to woman belonging to poorer classes [VD.
Bhanot v Savita Bhanot 2012 SCC 183]
Who can grant maintenance?
• Magistrate of first class is empowered to order a person to make a
monthly allowance for the maintenance.
• Magistrate may order the father of a married female child for
maintenance until she attains her majority if her husband is not
possessed of sufficient means. [First proviso to Section 125 (1)]
Conditions when liability to maintain arises
Section 125 lays down following circumstances when a person is liable to maintain his
dependents-
1. He must have sufficient 'means': The person must have sufficient means to maintain. The
means contemplated here is not confined to visible means only like land, income, property
etc. If a person is capable of earning then he must be held liable to maintain.
2. Neglect or refusal to maintain: There is duty upon the person to maintain his dependents.
Failure or omission to perform such duty without just cause entitles persons mentioned in
Sec-125 to claim maintenance. Also, a husband who makes it difficult for the wife to live
with him and who fails to maintain her if she lives elsewhere, he is said to neglect or refuse
to maintain his wife. Neglect or refusal to maintain may be by word or conduct.
For instance, bigamy is allowed under Muslim law and husband is not criminally liable for
contracting second marriage. However, a Muslim wife would surely be entitled to live separately
and claim maintenance solely on the ground that second marriage of her husband has caused her
mental agony and cruelty. In such a situation, husband cannot take shelter of his personal law and
claim immunity from Section 125. [Begum Sabano v. A.M. Abđul Gafoor, (1987) 2 SCC 285).
3. Dependants unable to maintenance themselves: It is necessary that dependents
mentioned in Section 125 are unable to maintain themselves i.e., there is absence of source
of maintenance.
Circumstances when wife not entitled to maintenance
1. Wife living in adultery (Section 125 (4)]: If wife is 'living in adultery' then she will be disentitled to
claim maintenance. It must be noted here that a single act of adultery would not disentitle the wife
from claiming maintenance. The expression living in adultery' means adulterous course of life.
2. Wife living separately without just cause [Section 125 (4)] : The wife should not be living
separately with her husband without just cause. Explanation to Section 125 (3) further provides
that where husband keeps a mistress, it will be a just ground to refuse from living with him.
3. Wife living separately by mutual consent [Section 125 (4)] : If husband and wife are living
separately by mutual consent, the latter is disentitled from claiming maintenance. A divorced wife is
not covered under this exception.
4. Remarriage of divorced wife (Section 127 (3) (a)]: If the divorced wife remarries then the court will
cancel her order of maintenance.
5. Payment of dower [Section 127 (3) (b)]: If the wife who is divorced has received the whole sum
payable to her on such divorce under personal or customary law, her maintenance order will be
canceled. Supreme Court in Bai Tahira v. Ali Hussain, (979)2 SC 316 held that amount of sum
payable under customary or personal laws should not be meager but reasonable keeping keeping in
mind her future needs.
6. Waiver (Section 127 (3) lf the divorced wife has voluntarily waived her right to claim maintenance,
her maintenance order will be cancelled.
7. Order of civil court [Section 127 (2)): lf it appears to Magistrate that order under Section 125 of
INTERIM MAINTENANCE AND EXPENSES & OTHER ASPECTS
• The Code of Criminal Procedure (Amendment) Act, 2001 inserted proviso to Section 125 (1) of
the Code. It provides for interim maintenance to claimants under Section 125.
• According to this proviso, the Magistrate of first class may during the pendency of proceeding
under Section 125, order person against whom proceedings is initiated to make a monthly
allowance for interim maintain ace and also the expense of proceeding that magistrate
considers reasonable.
• Such payment will be made from time to time as the Magistrate directs. Such application for
interim maintenance shall be disposed of within 60 days from the date of service of notice of
application under section 125. Such interim maintenance is provided in order to support the
claimant during the pendency of proceedings under Section 125 if they are unable to support
themselves or bear the expenses of the proceedings.
FAILURE TO PAY[First proviso of Section 125 (3)]
Section 125 (3) provides that where a person fails without sufficient cause to comply with the
order, for every breach of order, a warrant may be issued for levying fines and he may also be
sentenced, for the whole or any part of each month's allowance remaining unpaid, to
imprisonment for a term which max extend to 1 month or until payment if sooner made. For the
issuance of warrant for the recovery of any amount due, an application should be made to the
court within a period of 1 year from the date on which it becomes due.
Procedure [Section 126]
Section 126 provides that proceedings under Section 125 may be taken against any
person in any district
• (a) where he is, or
• (b) where he or his wife resides; or
• (c)where he last resided with his wife, or with the mother of the illegitimate
child.
• All evidence to such proceeding shall be taken in the presence of the person
against whom an order for payment of maintenance is proposed to be made or in
the presence of his pleader and shall be recorded in the manner prescribed for
summon case.
• If such person is willfully avoiding service or willfully neglecting to attend the
court, the Magistrate may hear and determine the case ex-parte.
• To set aside such ex- parte order an application should be made within 3 months
from the date of such order.
Alteration in allowance [Section 127]
Section 127 provides that alteration in allowance or cancellation of order of maintenance may be
made in following circumstances:
1. Due to change in circumstances of the parties.
2. Due to decision of a competent civil court.
3. Where divorced woman remarried.
4. Where a woman has been divorced by her husband and she has received the whole sum
which was payable on such divorce under any customary or personal law applicable to the
parties.
5. Where a woman has obtained a divorce from her husband and she had voluntarily
surrendered her rights to maintenance or interim maintenance after her divorce.
Section 127(4) provides that at the time of making any decree for the recovery of any
maintenance or dowry by any person, the Civil Court shall take into account the sum which has
been paid to, or recovered by such person in pursuance of the order made under Section 125.

Enforcement of maintenance order [Section 128]

Section 128 provides for enforcement of the maintenance order. It provides that order may be
enforced by any Magistrate in any place where the person against whom it is made may be found
Urgent cases of nuisance or
apprehended danger
Esp. Sec. 144 CRPC
Sec.144 CRPC- Urgent cases of nuisance or apprehended danger

Authority issuing order/directions.

• District Magistrate, or
• Sub-Divisional Magistrate or
• any other Executive Magistrate specially empowered by the State
Government in this behalf
 Content of Order or directions u/s 144 CRPC & other details

• By such order the authorities can direct any person to abstain from a certain act or to take
certain order with respect to certain properties in his possession and management.
• In cases of emergency such orders may be passed ex-parte.
• No order under this section shall remain in force for more than 2 months from the date of
order, but the State Government may by notification extend the enforcement period of the
order for 6 month.
• Therefore the order under Section 144 may remain in force for a maximum period of 8
months. (Section 144(4))
• The order under Section 144 may berescinded or altered by the Magistrate suo-motu or an
application of aggrieved person.
• Where the period of the order is extended by the State Government, it can rescind or alter
the order either on its own motion or an application of aggrieved person.
• Order passed under Section 144 whether by Magistrate or by the State Government is
revisable order.
• A person disobeying the order under Section is punishable under Section 188 of Indian Penal
Code.