What is a maintenance application under section 125?
Section 125 – Order for maintenance of wives, children and parents
Maintenance law under section 125 of CrPC has been enacted as a measure of social justice to
provide financial assistance (maintenance) to wife, children and parents, so as to prevent them
from falling into destitution. A maintenance application made under this section is presented
before the Magistrate, provided at such monthly rate as the Magistrate deems fit. This further
provides an option of an interim application to be filed under its sub section 3 during the course
of proceeding.
This article attempts to explain various aspects pertaining to an application for maintenance
under section 125, in light of recent “Guidelines” framed by the Hon’ble Supreme Court in the
matter of Rajnesh v. Neha & Anr, further discussing upon jurisdiction, grounds and interim
application.
CONCEPT OF MAINTENANCE Meaning:
The dictionary meaning of the term maintenance is support or sustenance. The term
maintenance is not defined in the marriage laws of any of the religious communities. But the
entitlement of claiming maintenance is certainly based on the assumption that the claimant
doesn’t have the sufficient means to support herself .The maintenance generally covers the
expenses for necessaries or essentials for the substance of life. However, it is not merely a right
for survival of the claimant. This is clear from the provisions under the acts mentioned above,
which give guidelines to the court by stating the factors to be taken into consideration for fixing
the amount of maintenance. The court is to look into the possession of the property of both, the
husband and the wife, ability of the husband to earn, conduct of the parties and other
circumstances to decide the amount of maintenance. Before fixing the amount of maintenance
the status of the parties and the standard of their life enjoyed by them, during the subsistence
of marriage will have to be taken into consideration.
Grounds to claim maintenance
Following are the grounds to claim maintenance under Section 125 of CrPC:
• If she is divorced by her husband, or
• Obtained divorce from her husband, and
• She has not remarried, and
• She is not able to maintain herself.
1) If any person having sufficient means neglects or refuses to maintain.-
a) his wife, unable to maintain herself, or
b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself,
or
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c) his legitimate or illegitimate child (not being a married daughter) who has attained
majority, where such child is, by reason of any physical or mental abnormality or injury
unable to maintain itself, or
d) his father or mother, unable to maintain himself or herself,
A Magistrate of the first class may, upon proof of such neglect or refusal, order such
person to make a monthly allowance for the maintenance of his wife or such child, father
or mother, at such monthly rate as such magistrate thinks fit, and to pay the same to such
person as the Magistrate may from time to time direct:
Provided that the Magistrate may order the father of a minor female child referred to in
clause (b) to make such allowance, until she attains her majority, if the Magistrate is
satisfied that the husband of such minor female child, if married, is not possessed of
sufficient means.
Provided further that the Magistrate may, during the pendency of the proceeding
regarding monthly allowance for the maintenance under this Sub-Section, order such
person to make a monthly allowance for the interim maintenance of his wife or such child,
father or mother, and the expenses of such proceeding which the Magistrate considers
reasonable, and to pay the same to such person as the Magistrate may from time to time
direct:
Provided also that an application for the monthly allowance for the interim maintenance
and expenses of proceeding under the second proviso shall, as far as possible, be
disposed of within sixty days from the date of the service of notice of the application to
such person.”;
Explanation – For the purposes of this Chapter-
a) “minor” means a person who, under the provisions of the Indian Majority Act, 1875 (9
of 1875) is deemed not to have attained his majority;
b) “wife” includes a woman who has been divorced by, or has obtained a divorce from, her
husband and has not remarried.
2) “Any such allowance for the maintenance or interim maintenance and expenses of
proceeding shall be payable from the date of the order, or, if so ordered, from the date of
the application for maintenance or interim maintenance and expenses of proceeding, as
the case may be.”;
3) If any person so ordered fails without sufficient cause to comply with the order, any such
Magistrate may, for every breach of the order, issue a warrant for levying the amount due
in the manner provided for levying fines, and may sentence such person, for the whole, or
any port of each month’s allowance allowance for the maintenance or the interim
maintenance and expenses of proceeding, as the case may be remaining unpaid after the
execution of the warrant, to imprisonment for a term which may extend to one month or
until payment if sooner made:
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Provided that no warrant shall be issued for the recovery of any amount due under this
section unless application be made to the Court to levy such amount within a period of
one year from the date on which it became due:
Provided further that if such person offers to maintain his wife on condition of her living
with him, and she refuses to live with him, such Magistrate may consider any grounds of
refusal stated by her, and may make an order under this section notwithstanding such
offer, if he is satisfied that there is just ground for so doing.
Explanation – If a husband has contracted marriage with another woman or keeps a
mistress, it shall be considered to be just ground for his wife’s refusal to live with him.
4) No wife shall be entitled to receive an allowance for the maintenance or the interim
maintenance and expenses of proceeding, as the case may be from her husband under
this section if she is living in adultery, or if, without any sufficient reason, she refuses to
live with her, husband, or if they are living separately by mutual consent.
5) On proof that any wife in whose favour an order has been made under this section is living
in adultery, or that without sufficient reason she refuses to live with her husband, or that
they are living separately by mutual consent, the Magistrate shall cancel the order.
Read more at: https://devgan.in/crpc/chapter_09.php
What should an application under section 125 of CrPC include?
An application made under this section is predicated upon two conditions
Firstly, the fact that the respondent “neglects” to maintain his wife, who is unable to maintain
herself, accenting that the applicant is fully dependent on the respondent as herself has no
source of income. And,
Secondly, that the husband (respondent) has sufficient means to provide maintenance. This
could be underscored by enumerating the respondent’s source(s) of income, assets and that he
has no other liabilities if in case.
Further, following are the points that shall also be made in the application
That the applicant is legally married wife of the respondent: to claim maintenance from the
respondent it is pertinent to establish that the applicant and the respondent are/ were a married
couple, proof establishing the same shall be attached therein including marriage certificate,
wedding Card etc, while not to be adhered meticulously.
As held in Chanmuniya v. Virendra Kumar Singh Kushwaha strict evidence of marriage
should not be a pre-condition for maintenance, since the term ‘wife’ includes all such situations
where a man and woman have been living together as a husband and wife for a reasonable
period of time.
The cause of non-maintainability of the marriage shall also be provided, which encompasses
cruelty, Demand/torture of wife for dowry, Impotency of husband etc.
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Scope and applicability of Section 125 CrPC
Section 125 of the Criminal Procedure Code provides for the maintenance to the wife, child, and
parents. The court after the party has invoked Section 125 of the Code, may order the
respondent, that is the husband, to maintain the wife who is unable to maintain herself by
providing monthly maintenance to her. However, there is an exception in the provision. For the
purpose of providing maintenance to the wife, the husband has to be sufficient enough to
support his wife after the separation and at the same time, the wife must not be living in
adultery or living separately with her husband without any sufficient reasons. Even if they are
living separately in mutual consent, then also the wife will not be entitled to any sort of
maintenance. Whenever the judgment is passed in favor of the wife, the court has to make sure
that the husband has sufficient means to provide maintenance to the wife. The court also needs
to make sure that the wife after the separation does not have enough money to maintain herself.
Under Section 125 of the code, the provision is available for interim maintenance which means
that during the pendency of an application in the court of law, the order may be passed by the
magistrate directing the husband to pay the monthly allowances to the wife. However, the
magistrate has the right to alter the amount of the maintenance to be paid, if he thinks that
there is a change in the circumstances of the individual who has been paying or either receiving
the monthly allowances. This was laid down in the case of Vikas v. State of Uttar Pradesh. All
such applications of maintenance can be filed in any district where the person who is liable to
pay resides or where the wife resides or where the person last resided with the wife or with the
mother or with the illegitimate child. The purpose of Section 125 of CrPC is to achieve a social
purpose in society.
The purpose of Section 125 CrPC was explained in the case of K. Vimal v. K. Veeraswamy,
where it was held that Section 125 of the Code had been introduced for achieving a social
purpose. The aim of this section is the welfare of the wife by providing her with the required
shelter, food after the separation from the husband. It was held in this case that if the wife has
lived like a wife and the husband had treated her like a wife for all the years before their
separation, then, the wife cannot be denied maintenance by her husband.
Grants of maintenance are a metric of social justice. A man’s essential obligation is to provide for
his wife, kids, parents, close relatives, etc, while they are incapable of providing for themselves.
Preventing immorality and poverty while improving the economic standing of women and
children is the motive behind the concept of maintenance. The CrPC requirements obligate a
person to fulfil the moral duty to which he owes the community in regard to his wife, children,
and parents. The obligation is unquestionably lawful and binding on the person.
All communities in India are subject to the CrPC’s provisions, and therefore are very much
secular, safe, and all-encompassing in character and apply to all faiths, castes, and creeds.
Whatever personal law is used to guide and control the respective persons affected, the
provisions of Section 125 of the CrPC are enforceable. However, procedures provided under
Section 125 of CrPC are of a summary nature and apply to everyone regardless of caste, creed,
or religion. Maintenance can be sought under the individual personal laws of people of other
religions, and processes under such personal laws are civil in nature.
The provision found in Chapter IX of CrPC seeks to shield the neglected wife, parent, and
children (minor) from complete ruin and destitution through a straightforward, quick, and
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effective restricted relief. Section 125 of CrPC offers a swift solution to prevent famine and social
unrest. It differs from a husband’s civil liability. It serves as a straightforward summary
procedure. It puts into practice a man’s fundamental obligation to support his wife, kids, and
elderly parents who are self-supporting.
The fundamental tenet of the maintenance stance under Section 125 of the CrPC is that no wife,
young children, or elderly parents should be left without and succumb to complete pressure of
wants in order to be persuaded to resort to crimes, etc. A Magistrate of the First Class may take
swift action to avoid poverty under a provision in Section 125 of the CrPC.
Purpose of Section 125 CrPC
1. The intent behind Section 125 of the CrPC is to protect dependents who are unable to
support themselves from starvation, misery, and vagrancy. It is social justice legislation
that was specifically passed to safeguard women, children, and elderly parents.
2. The main goal of Section 125 of the CrPC of 1973 is to support abandoned and
impoverished wives, neglected and abandoned children, and vulnerable, elderly, and
disabled parents. As a result, this provision promotes social welfare and social service.
The Magistrate’s authority is primarily preventative in character rather than penal or
punitive.
3. The time-consuming, troublesome, heavy, process of civil law and litigation was sought to
be avoided by providing a simple, quick, limited relief. This is because compulsion is (to
some extent) imposed upon those persons whose duty it is to support their dependents
who are unable to support themselves.
4. No wife, child, or parent should be abandoned on the scrap heap of society to beg or to
lure others to commit crimes against them or to commit crimes themselves. A contract
that violates this responsibility and totally waives the right to support one’s own wife and
young children cannot be regarded as legal.
Section 126 – Procedure
1. Proceedings under section 125 may be taken against any person in any district-
1. where he is, or
2. where he or his wife resides, or
3. where he last resided with his wife, or as the case may be, with the mother of the
illegitimate child.
2. All evidence to such proceedings shall be taken in the presence of the person against
whom an order for payment of maintenance is proposed to be made, or, when his
personal attendance is dispensed with in the presence of his pleader, and shall be
recorded in the manner prescribed for summons-cases:
Provided that if the Magistrate is satisfied that the person against whom an order for
payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully
neglecting to attend the Court, the Magistrate may proceed to hear and determine the
case Ex-parte and any order so made may be set aside for good cause shown on an
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application made within three months from the date thereof subject to such terms
including terms as to payment of costs to the opposite party as the Magistrate may think
just and proper.
3. The Court in dealing with applications under section 125 shall have power to make such
order as to costs as may be just.
Who May File a Maintenance Claim? The CrPC's Section 125
1) Wife According to Section 125(1), any woman who is unable to support herself, whether she
is an adult or a child, is entitled to maintenance (a). The term "wife" under this clause included a
divorced woman who had not remarried, according to Explanation (b). Before the Shah Bano
Begum ruling, a divorced wife had no right to maintenance, which significantly harmed women,
especially those in the Muslim community. Any of these marriages must be legal according to the
law. Despite the sad circumstances, a woman who is in a partnership with a married man is not
entitled to maintenance. This may seem unfair, but the Supreme Court ruled that the only way
to correct this insufficiency is by legislative action. Since this section is intended to be a tool for
social justice and is thus given a broader interpretation, strict proof of marriage is not absolutely
necessary. However, the High Courts and the Supreme Court debated this issue until the
Supreme Court decided that a man and a woman living together as husband and wife for a
reasonable amount of time may be considered under this section as a valid proof for married life
and shall be treated as such for matter. Even if she gave her agreement to the second marriage,
the first wife still falls under the criteria and is entitled to maintenance if her husband marries
again. For the woman to argue for maintenance in this situation, there is no requirement for
proof of neglect. There are some circumstances under which this maintenance may be excused.
In accordance with Section 125's subsection (4), the court must determine if the husband has
enough money to support his wife; if not, this subsection does not apply. Furthermore, unless
the court finds that the wife's decision to live apart from her husband is justifiable, she should
not be living in adultery. Even if it is a mutual separation, this still holds true. A woman is not
entitled to support if a marriage is declared invalid or nullified in accordance with Section 12 of
the Hindu Marriage Act.
2) Parents A mother or father who is unable to support herself may be able to make a claim for
maintenance from their children under Section 125(1)(d). Although the word "his" is used, it
refers to both the parents' male and female children. Indian culture places a societal obligation
on children to support their parents, and daughters are no exception to this rule. It is unclear
whether or not stepfathers and mothers, as well as adoptive fathers and mothers, are included
in the definitions of "father" and "mother." In a ruling, the Bombay High Court ruled that
although an adoptive father is considered a father under Section 3 (20) of the General Clauses
Acts, the term "mother" must be given its ordinary meaning and does not include a stepmother.
A stepmother who has no children of her own and whose husband has passed away or, if he is
still alive, is unable to support her can seek maintenance from her stepson, according to a later
ruling by the Supreme Court that generously interpreted the clause. In subsection (4), the word
"parent" is not used; this has been construed by the High Court of Andhra Pradesh in N. B.
Bhikshu v. State of Andhra Pradesh to mean that only a legitimate child has the responsibility to
keep their parent and, if there are multiple children, the parent may make a claim against any of
the children for failure to fulfil this obligation.
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Section 127 – Alteration in allowance
1. On proof of a change in the circumstances of any person, receiving, under section 125 a
monthly allowance for the maintenance or interim maintenance, or ordered under the
same section to pay a monthly allowance for the maintenance, or interim maintenance, to
his wife, child, father or mother, as the case may be, the Magistrate may make such
alteration, as he thinks fit, in the allowance for the maintenance or the interim
maintenance, as the case may be.;
Provided that if he increases the allowance, the monthly rate of five hundred rupees in
the whole shall not be exceeded.
2. Where it appears to the Magistrate that, in consequence of any decision of a competent
civil Court, any order made under section 125 should be cancelled or varied, he shall
cancel the order or, as the case may be, vary the same accordingly.
3. Where any order has been made under section 125 in favour of a woman who has been
divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is
satisfied that-
1. the woman has, after the date of such divorce, remarried, cancel such order as
from the date of her remarriage;
2. the woman has been divorced by her husband and that she has received, whether
before or after the dale of the said order, the whole of the sum which, under any
customary or personal law applicable to the parties, was payable on such divorce,
cancel such order-
1. in the case where such sum was paid before such order, from the date on
which such order was made,
2. in any other case, from the date of expiry of the period, if any, for which
maintenance has been actually paid by the husband to the woman;
3. the woman has obtained a divorce from her husband and that she had voluntarily
surrendered her rights to 2 [maintenance as interim maintenance, as the case may
be after her divorce, cancel the order from the date thereof.
4. At the time of making any decree for the recovery of any maintenance or dowry by any
person, to whom a monthly allowance for the maintenance and interim maintenance or
any of them has been ordered to be paid under section 125, the civil Court shall take into
account the sum which has been paid to, or recovered by, such person as as monthly
allowance for the maintenance and interim maintenance or any of them, as the case may
be, in pursuance of the said order.
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Section 128 – Enforcement of order of maintenance
A copy of the order of maintenance or interim maintenance and expenses of proceeding, as the
case may be shall be given without payment to the person in whose favour it is made, or to his
guardian, if any, or to the person to whom the allowance for the maintenance or the allowance
for the interim maintenance and expenses of proceeding, as the case may be is to be paid; and
such order may be enforced by any Magistrate in any place where the person against whom it is
made may be, on such Magistrate being satisfied as to the identity of the parties and the non-
payment of the allowance or as the case may be expenses, due.
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