Maintenance

Submitted To – Submitted By –
Ms. Shawalini Singh Rohan Singh Chauhan
BBA LLB 4TH Semester
A8121517049
Maintenance
Section 125 – Order for maintenance of wives ,children and parents.
Section 125 of CrPC clearly states that if any person having sufficient means neglects or
refuses to maintain his wife , minor child or parents unable to maintain themselves , a
Judicial Magistrate First Class may order such person to paay maintainence to them at such
rate as he deems fit.
Here ,
(a) minor means a person who under the provisions of the Indian Majority Act ,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.
The code of Criminal Procedure is a procedural law, however there are a few substantive
provisions in it . Section 125 constitutes an exception which is a substantive provision and
confers right of maintenance on certain persons.
It was implemented for securing social justice and specially enacted for women and children
and Article 15(3) clearly states that nothing shall prevent state from making laws for women
and children. Even Article 39 of the Constitution of India states that citizen , men and
women equally have the right to an adequate means of livelihood.
The section is intended to prevent starvation of wives, children and parents. Legislation in
favour of such weaker sections of the society cannot be said to be arbitrary to Article 14.

Constitutional Validity
The decision of the High Court declaring the sub-section (2) to be violative of Article 14
without notice to the Attorney General and without such contention being raised in the
pleadings , was held to be not sustainable1 .

1
Basant Lal v. State of U.P ,(1998) 8 SCC 589: 1998 SCC (Cr) 1548
Nature of Proceedings
The proceedings under section 125 is summary in nature. If the petitioner is able to
establish that there was valid marriage under law and both of them were living together as
husband and wife, the wife is entitled to claim maintenance2 .
The proceedings is basically of civil nature. Once marriage is prima facie proved, it is not
necessary to further probe into whether the procedure adopted in solemnising the marriage
was complete as per Hindu rites or otherwise. They were living together as man and wife
which created a strong presumption of marriage for the purposes of section 125 3.
Proceedings under the section are of quasi-civil and quasi-criminal nature. The provision has
been enacted with a view to providing a summary remedy. Orders passed under this
section do not finally determine the rights and obligations of the parties 4.

Interim Relief
There is no provision for the payment of interim maintenance under Section 125. However
the Supreme Court granted interim maintenance under it’s inherent power 5.
No revision is maintainable u/s 397(2) CrPC against the grant of interim maintenance as it is
only an “ interlocutory order”6. Where a woman was prima facie proved to be the legally
married wife and therefore the child born of that wedlock was legitimate , it was held that
the magistrate can very well award interim maintenance pending final disposal of the case 7.
An interim maintenance can be granted even on the basis of an affidavit. The argument that
without recording evidence , interim maintenance could not be allowed was rejected8.
The Court has the implied power to grant interim maintenance. But there has to be a
written application for such grant9 .
Even an order of interim maintenance was set aside where the decree of restitution of
conjugal rights was granted to the husband but the wife refused to join him without
assigning any reasons10 .
An order for maintenance passed under this section in favour of a wife will not cease to be
operative merely because there was subsequent resumption of cohabitation between
husband and wife ,though it would remain under suspension during that period. It would

2
Susilamma v. Chandrappa , 2002 Cr LJ 701 (Mad)
3
Krishan Pal Singh v. Babli ,AIR 2009 NOC 2412 HP
4
Ranjeeta Deepak Balsekar v. Deepak Baburao Baleskar AIR 2009 NOC 1319 Bom
5
Gurupartap Singh v. Satwant Kaur , 1990 Cr LJ NOC 152 (P&H)
6
Mamta v. Ashok M. Vaidya, 1992 Cr LJ 2605 (Bom)
7
Kunji Lal v. Susheela , 1995 Cr LJ 1972 (Bom)
8
Suresh v. Lalita, 2002 Cr LJ 380 (Raj)
9
Pratibha Dinesh Kumar Vania v. State of Gujarat , AIR 2008 NOC 511 Guj
10
Renu v. Hiralal , 2002 Cr LJ 2599
revive when the wife again lives separately from her husband unless and until it is cancelled
by the competent authority in a proper proceeding under sub section (5) of this section 11.
In a revision against the maintenance awarded by the magistrate to a wife u/s 125 CrPC, it
was held that insufficiency of the reason for the wife to live separately (s. 125(4) CrPC) has
to be established by the husband in the Trail Court , as it involves factual evaluation and
cannot be considered in revision12 .

Compromise
Proceedings under this section were disposed of in terms of the compromise between the
parties. The husband agreed to pay maintenance allowance in the event that he did not
maintain the wife as settled between them. It was held that such conditional order was
outside the the pale of section 125. It could not be executed u/s 128 13.
1) Any Person – The words “any person” include a Hindu not divided from his father.
This section does not contemplate proceedings against a whole family merely
because the husband against whom the proceedings are taken is a member of a joint
Hindu family.14 However , a married daughter is included in “any person”.
Under this section, a person can claim maintenance from his daughter but not from
his wife. A claim against wife is maintainable only under the provisions of the Hindu
Marriage Act,1955 15.

2) Sufficient Means – An order under this section can be passed only if a person ‘having
sufficient means’ neglects to maintain his wife or child. But the expression ‘means’
occurring in this section does not signify only visible means such as real property16 or
definite employment. If a man is healthy and able-bodied he must held to possess
the means to support his wife, children and parents and he cannot be relieved of his
obligation on the ground that he is mere a boy and is unemployed.

3) Neglects or Refuses to maintain – A neglect or refusal to maintain may be by words

or by conduct. It may be express or implied. Neglect or refusal may mean something
more than mere failure or omission. But there is a duty to maintain such as, in the
case of a child who has no will or voilation of it’s own , mere failure or omission may
amount to neglect or refusal17.

11
Kasinath Panda v. Padmabati Debi,(1956) Cut 509
12
Srabhan Kumar Pradhan v. Menaka Kumari Rout , 1993 Cr LJ 2428 (Ori)
13
Namdeo Sheshrao Dinde v. Sou Rekha Namdeo Dinde, AIR 2008 NOC 2378 Bom
14
Ramaswami,(1889) 13 Mad 17
15
Gnansoundari v. K.S Subramaniam,AIR 2009, NOC 1838 Mad
16
Dasarathi Ghosh v. Anuradha Ghosh , 1988 Cr LJ 64 (Cal)
17
Chand Begam v. Hyderbaig , 1972 Cr LJ 1270
 4) Wife – Wife means only a legitimate wife or legally wedded wife and therefore a
marriage proved illegal cannot give a wife any right to get maintenance. Executing a
registered document and making a declaration therein that the executant would live
as husband and wife., would not confer upon them the status of a husband and wife.
As the factum of legal marriage has not been established , by such agreement and
,therefore, the woman is not entitled to maintenance18. Where marriage is denied by
the husband , the factum of marriage should be properly proved. Marriage cannot
be proved by few cursorily made statements19 . The second wife is not entitled to get
maintenance20 .

Marriage in violation of Child Marriage Restraint Act

It has been held that a man a cannot avoid to pay maintenance on the ground that he was
married in violation of the Child Marriage Restraint Act,1929 21.

Second Wife and her children

Where the accused’s first wife was alive and the marriage had not been annulled by a
decree of divorce or otherwise, it was held that the High Court erred in granting
maintenance to the second wife. That award was set aside. But the payment of
maintenance to the children of the second marriage was not disrupted 22.
Such marriage is void-ab- initio. Burden lies upon the husband to prove the fact of his first
marriage and also a valid one. The mere keeping of a mistress does not debar the so-called
second wife from claiming maintenance23.
In Chand Patel v. Bismillah Begun , A woman married the sister of his existing wife. The
court said that the marriage was irregular and not void. It continued to subsist and would
continue to do so till terminated in accordance with the law. The wife and children of such
marriage was held entitled to maintenance24.

Maintenance under Muslim Law

Section 125 of the CrPC is basically secular in nature. Due to the secular nature of this
act this does not affect the various personal laws and also the personal laws do not
affect this section. If any Muslim women seek compensation under the section 125
and she will be awarded maintenance by the respected court only if she is not
remarried. “If the wife exercises her right under the Muhammadan Law and refuses to

18
Punnakal Sreedharan v. Vellali Padmini , 1992 Cr LJ 3562 (Ker)
19
Shibsankar Samanta v. Sobhana Samanta, 1993 Cr LJ 2196 (Cal)
20
Yamunabai v. Anantrao, 1988 Cr LJ 793
21
Roop Narayan Verma v. Union of India, AIR 2007 Chh 64 DB
22
Bidhi Chand v. Kanta Devi , AIR 2009 NOC 214 (HP)
23
Nageshwar Rai v. Sunaina Devi, AIR 2009 NOC 817 (Pat)
24
Chand Patel v. Bismillah Begun , AIR 2008 SC 1915
live with her husband on the ground of non-payment of dower, cannot enforce her
right to maintenance under this act." The Muslim women in case if she is granted
maintenance will be in the form of the monthly allowances.

In the Mohd Ahmed Khan v. Shah Bano Begum25, there was a Muslim women who
was divorced by her husband when she was 68 years old and was the mother of five
children. She filled a case in the court for granting of maintenance by the court. She
was given maintenance by the Supreme Court under section 125 of the CrPC even
after the iddat period was over. Under the Muslim personal law a divorced women
could be awarded maintenance only during the iddat period and not latter. In case if
she wants maintenance than she will have to be given maintenance by the other
relatives according to the Muslim personal law. This judgment of awarding
maintenance to Muslim women under section 125 of the CrPC which is a secular
section of the law was widely critised by the Muslim community throughout the
country. The Supreme Court had its following judgment in the case:

“The Supreme Court of India mitigated the effect of Muslim laws that limited the
maintenance payable to a divorcée. It held that, regardless of any previous payment
of maintenance by a divorced man to his former wife during her iddat period and
payment of her mahr, a former wife could still seek additional maintenance from her
ex-husband under Section 125 of the CrPC, which permits courts to order
maintenance payments for financially destitute women. In its decision, the Court
quoted certain passages from the Quran in support of the position that a divorced
man has an obligation to materially support his former wife. This decision triggered
massive protests amongst conservative Muslim Indians, who viewed the decision as a
deliberate attempt to undermine "their" personal laws and were outraged that a
secular court tried to support its decision with references to the Quran.
Fundamentalist Muslim leaders even pressured Shah Bano, to withdraw her support
for the Court's decision in her favor. Despite acclaim for the decision from women's
rights advocates, including from some Muslim women's groups, many Muslim
leaders lobbied for legislation to overturn the Court's decision. As a result, without
any consultation with either women's groups or moderate Muslim leaders, the
national government hastily passed the Muslim Women Act of 1986, which limited a
Muslim man's duty to pay maintenance to his former wife to her iddat period."

Section 126 – Procedure

25
Mohd Ahmed Khan v. Shah Bano Begum, (1985) 2 S.C.C 556
Under this section proceedings maybe initiated against a person in any district
where-

a) Where he is ,
b) Where he or his wife reside
c) Where he last resided with his wifeor with the mother of the illegitimate child

The term ‘resided’ includes a temporary residence and is not to be confined to

permanent residence26, but it implies something more than a mere brief flying visit27.

The mere hiring or purchase of a residential building by a person at a place when he

was actually in employment at another place, does not confer jurisdiction on the
Magistrate at the place where the building is hired to entertain a petition against that
person under this section28.

Also it has been stated in Ananth Gopal v. Gopal Narayan, that a father seeking
maintenance can apply at a place where he resides. Analogy of Section 177 was
applied here29.

Restoration

Where ex-parte orders for payment of maintenance to the wife were sought to be set
aside by the husband, after expiry of the period prescribed u/s 126 (2) CrPC, the
Calcutta High Court applying Section 5 of the Limitation Act, 1963, condoned the
delay observing that ex-parte orders can be passed only in cases where the
magistrate records satisfaction that the opposite party is wilfully avoiding service or
wilfully neglecting to attend the court 30.

In Rajendra Pal v. Anjali Singh, it was held that where the husband remained absent
during successive hearings without giving any explanation, his application for setting
aside the ex-parte order granting maintenance, was held to be rightly refused 31.

Civil Suit - An order passed u/s 125 is no bar to a suit for maintenancein a Civil
Court. If there is inconsistency between the decision of the Criminal Court and the

26
Sher Singh v. Amir Kunwar , (1927) 49 ALL 479
27
Abdur Hamid v. Bibi Ashrafunnisa, AIR 1965 Pat 344
28
Bai Ganga v. Amritlal Purshottam, (1936) 38 Bom LR 1107
29
Ananth Gopal v. Gopal Narayan, 1985 Cr LJ 152 (Kant)
30
Satrughna Adak v. Souali Adak, 1993 Cr LJ 1892 (Cal)
31
Rajendra Pal v. Anjali Singh,1993 Cr LJ 1433 (Raj)
decision of the Civil Court, in such a case the decision of the latter prevails, although
ordinarily the decision of the Civil Court is irrelevant in a Criminal Proceeding 32.

Section 127 – Alteration in Allowance

Under this section it has been stated that the magistrate has the power to alter or
cancel maintenance according to the facts and circumstances of each case like-

a) Wife is living in adultery

b) Refusal to live with husbandwithout sufficient cause
c) Mutual concent
d) Divorce
e) Remarriage etc

Jurisdiction – A petition seeking enhancement has to be filed u/s 127. A separate

application was filed under section 125 before the family court either erroneously or
under misconception. The order granting enhancement was passed by the family
court. The court refused to term it void 33.

Section 128 – Enforcement of order of maintenance

This section under maintenance clearly states that copy of order of maintenance
should be supplied free of cost to the person in whose favour it is made. It can be
enforced by magistrate anywhere in India where the person against whom such
order is made resides.

No time limit – In the case of P. Vaithi v. Kangavallu , a petition for recovery of arrers
of maintenance was filed after one year of the order. The petition washeld to be not
barred. The court said that no period of limitation has been prescribed for initiating
purpose under section 128 34.

32
Dahyalal v. Bai Madhukanta, AIR 1965 Guj 247
33
M. Villai Pandi v. Amutha , AIR 2010 NOC 119 (Mad)
34
P.Vaithi v. Kangavallu, AIR 2010 NOC 717 (Mad)