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Journal of Business Management & Social Sciences Research (JBM&SSR) ISSN No: 2319-5614

Volume 6, No.7,July 2017


Section 125 of the Code of Criminal Procedure

Wandaia Syngkon, Research Scholar, Department of Social Work, Assam University, Silchar, India
ing. They are no longer willing to tolerate physical or
Introduction mental cruelty and indignity within the frame work of
The status of women in India has been subject to many marriage and they are growing independence from all
changes over the past millennia, from equal status with strata of society and are able to
men in ancient times through the low points of the medi-
eval period. As the Medieval period in history ap- walk out of a bad marriage. Interestingly, claiming for
proached, the Indian women started declining in status maintenance for themselves and their children from their
for a variety of reasons. Important scriptures started husbands has not found much importance in the society.
promoting the idea that women were inferior to men, and
could not be trusted to have their own freedom. Foreign Definition
invasions and wars also could have influenced the set Maintenance is the process of maintaining or preserving
back of women through danger, and the influx of new someone. A state of providing financial support for a
ideas about women's status. Following the independence person’s living expenses or a support so much in need
of India there was a new air of hope among women. In of. The term has been generally interpreted to include
1948, one year after India was granted their independ- food, clothing and shelter. However, in recent time it has
ence, a constitution was written. This constitution largely been held that any other requirements, i.e., necessary for
focused on human rights, and also notably gave women a person to remain fit healthy and alive is also to be in-
equal rights and opportunity. cluded within periphery of the term ‘maintenance’. It is
based on the premise that the wife is entitled to live as
However, looking at the statistics of the ratio of women per the standard and status of her husband.
to men in India there is a clear indicator that something
is amiss. In a population where there are more than one S. Nujoma 2004, “The Maintenance Act was specifi-
billion people in India, there are significantly fewer cally passed to provide a legal basis of monitoring
women than men. Many possible contributing factors to and ascertaining that parents, especially fathers, take
this discrepancy.

One important factor could be the full responsibility for all their children”.
shorter lifespan of women caused by the hardships they
face. Unfortunately, till date women are still burdened by Under Indian law, the term ‘maintenance’ includes an
issues such as malnutrition, poverty, and inadequate entitlement to food, clothing and shelter, being typically
healthcare. Simultaneously women are often expected to available to the wife, children and parents. It is a meas-
care for very large families. Large numbers of women in ure of social justice and an outcome of the natural duty
India, especially among the rural areas, simply hope for of a man to maintain his wife, children and parents,
day-to-day survival. when they are unable to maintain themselves. The object
of maintenance is to prevent immorality and destitution
Despite all these challenges to Indian women, there has and ameliorate the economic condition of women and
been much progress made in recent years. The women's children.
movement started in the 1970's elevating the public con-
sciousness about the need for fair, equal, and humane Traditionally, alimony was solely the right of the wife to
treatment of women. The movement motivated many be supported by the husband but under current law ali-
laws to not only be passed, but also enforced, for wom- mony may be payment by either the wife or the husband
en's protection. in support of the other. The award of spousal mainte-
nance is generally determined based on all or some of
Maintenance Under Section 125 Of The Code Of the following guidelines: the recipient's financial needs;
Criminal Procedure 1973 is one of those laws meant the payer's ability to pay; the age and health of the par-
for the protection of the rights of women. Yet, though ties; the standard of living the recipient became accus-
more women than ever are being able to have the oppor- tomed to during the marriage; the length of the marriage;
tunity to be educated and more women are coming out of each party's ability to earn and be self-supporting; and
the recluse of domestic life and the age old image of the recipient's nonmonetary contributions to the mar-
women being soft, delegate and docile is fast disappear- riage.

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Journal of Business Management & Social Sciences Research (JBM&SSR) ISSN No: 2319-5614
Volume 6, No.7,July 2017

deserted children’s and destitute parents to secure the
Concept Of Maintenance Under Section much needed relief because without these provisions of
125 Of The Code Of Criminal Procedure law the perpetrator will escape the responsibility causing
a burden to his wife and children and indirectly the com-
1973 pels them to become vulnerable to various crimes.
The concept of ‘maintenance’ in India is covered both
under Section 125 of the Code of Criminal Procedure, At the time of enactment of this code section 125 is in-
1973 (Section 125) and the personal laws. This concept tended to be applicable to all irrespective of their per-
further stems from Article 15(3) of the Indian constitu- sonal Laws although maintenance is a Civil remedy yet
tion envisaged that the state can make special provision it has been made a part of this Code to have a quick rem-
for woman and children. Which further, reinforced by edy and proceedings and S.125 is not a trail as non-
Article 39 of the Constitution of India, 1950 (the payment of maintenance is not a criminal offence.
'Constitution' that states that the State shall direct its pol-
icy towards ensuring that all citizens both men and Right to seek maintenance Under Section 125 of the
women have equal access to means of livelihood and Cr.PC is an independent right. It should be kept in view
children and youths are given facilities opportunities in that the provision relating to maintenance under any per-
conditions of freedom and dignity. sonal law is distinct and separate. There is no conflict
between the two provisions.
Proceedings initiated under Section 125 however, are
criminal proceedings and, unlike the personal laws, are
of a summary nature and apply to everyone regardless of Persons Entitled To Receive Maintenance
caste, creed or religion. The object of such proceedings Maintenance under section 125 of the code of criminal
however, is not to punish a person for his past neglect. procedure 1973 applies to any relationship where one
But the said provision has been enacted to prevent va- person has a legal duty to maintain another person.
grancy by compelling those who can provide support to a) Husbands and wives are responsible for each other’s
those who are unable to support themselves and have a maintenance.
moral claim to support. Maintenance can be claimed b) The parents of a child share responsibility for the
either at the interim stage, ie, during the pendency of maintenance of that child.
proceedings, or the final stage. This Section gives a stat- c) Children have a duty under certain circumstances to
utory recognition to the moral, legal and fundamental maintain their parents.
duty of a man to maintain his wife, children and aged
parents. Although this section also benefits a distressed Maintenance may be granted to dependent children, par-
father, the main thrust of this section to assist women ents and legally wedded wives, including but not limited
and children. to a divorced spouse, mistress, illegitimate children, etc.

Order For Maintenance Under S.125 Wife can claim maintenance only if she is a legal wed-
Order for maintenance of wives, children and parents.- ded wife and not just a mistress. But, if she is living in
a) If any person having sufficient means neglects or adultery or being married to any other man she cannot
refuses to maintain- claim maintenance. Marriage must be a valid one as per
b) His wife, unable to maintain herself, or the personal law of both the parties, but when the mar-
c) His legitimate or illegitimate minor child, whether riage is proved illegal the wife cannot claim for mainte-
married or not, unable to maintain itself, or nance. Wife means and connotes divorced wife or di-
d) His legitimate or illegitimate child (not being a mar- vorced by mutual consent, but the divorced wife can
ried daughter) who has attained majority, where claim maintenance as long as she does not remarry.
such child is by reason of any physical or mental
abnormality or injury unable to maintain itself, or For example Mrs X got married to Mr Y on the 2-12-
e) His father or mother, unable to maintain himself or 1996 and Mr Y divorced Mrs X on 7-7- 2001.Mrs X
herself, filed a petition for maintenance on 20-11-2001 under
section 125 CRPC, seeking maintenance for herself and
It is a natural and fundamental duty of every person to children. Suppose if Mr Y states that Mrs X was five
maintain his wife, children and old age parents if they months old pregnant at the time of marriage and the
are unable to maintain themselves or they have no means child is not born through him. Five months old pregnan-
or position to maintain themselves. The provisions of the cy in a very advanced state that it cannot be hidden as
Code invoke a man to realise his natural duty and re- pregnancy starts showing at that time. The fact is that Mr
sponsibility as a father and it serve as a special purpose Y cannot states that, at the time of marriage he did not
to avoid vagrancy. The sole purpose and object of these know that Mrs X is pregnant. The divorced was given
provisions is to enable the discarded wife, helpless and

© The Author Blue Ocean Research Journals Open Access Journals Blue Ocean Research Journals 5
Journal of Business Management & Social Sciences Research (JBM&SSR) ISSN No: 2319-5614
Volume 6, No.7,July 2017

after four and a half years. It is to be noted that every means of her own independently separate from her hus-
person who knows that a wife is already five months, but band.
he still agrees to marry her it is presumed that the child is
born through him, and nobody will also continued that A person may sue for maintenance under s.125 of
marriage for four and a half years. Therefore Mr Y was Cr.P.C. If a person has already obtained maintenance
fully aware of the pregnancy of Mrs X at the time of order under his or her personal law, the magistrate while
marriage and he therefore cannot avoid the liability to fixing the amount of maintenance may take that into
pay maintenance to Mrs X on the ground that the mar- consideration while fixing the quantum of maintenance
riage was illegal or that he was not the father of the under the Code. But he cannot be ousted of his jurisdic-
child. tion. The basis of the relief, under the concerned section
is the refusal or neglect to maintain his wife, children,
2.CHILD:- father or mother by a person who has sufficient means to
Child means a person who has not reached 18 years and maintain them. The burden of proof is on him to show
who is incompetent to enter into any contract. A child that he has no sufficient means to maintain and to pro-
need not be a minor, but it must be by reason of physical vide maintenance.
or mental abnormality or injury unable to maintain it-
self.” Unable to Maintain itself” means unable to earn Also, in certain cases under personal law, the Indian
one’s livelihood. courts have adopted a lenient view and granted the hus-
band the right to receive maintenance. Such right how-
The Basic Duty of Parents to maintain their children ever, is conditional and typically conferred upon the
husband, only if he is incapacitated due to some accident
a) Both parents of a child have a legal duty to maintain or disease and rendered incapable of earning a liveli-
their children. This means reasonable support to hood. Such an entitlement is not available to an able per-
give children a proper living and upbringing. It in- son, doing nothing for a living or a ‘wastrel’.
cludes money for food, accommodation, clothing,
medical care and education. Mothers Claiming Maintenance For Their
b) It is the primary responsibility of parents to maintain Children
their child. Even if the child is cared for by someone Maintenance under section 125 of the code of criminal
else, the mother and father both have a duty to main- procedure 1973 is for anyone who is entitled to mainte-
tain the child. If a child is adopted, the adoptive par- nance. But in practice, it is usually mothers who seek
ents have a duty to maintain the child. maintenance for their children because of the absent of
c) The duty to maintain a child is supposed to be fathers.
shared between the two parents in proportion to
their respective means. This means that the duty Under the provisions of Section 125, the burden lies up-
must be shared on the basis of how much money on the wife, ie, the claimant, to prove that the husband,
each of them earns and what they posses. The cost i.e., the other party, has ‘sufficient means’ and has ‘ne-
of raising a child will not necessarily be divided half glected or refused to maintain’ her and that she is ‘una-
and half between mother and father because the ble to maintain’ herself. “Sufficient means”, does not
wages and resources. Of each parent must be taken mean only visible means such as real property or particu-
into account. lar employment a person is particular engaged and it is
also not confined to the actual pecuniary resources of a
However, one parent will have to carry 100 % of the cost person but it refers particularly to the earning capacity of
of maintenance if the other parent has no income or a man .If a man is healthy and physically fit he is pre-
property. If one parent has some income and the other sumed to be possessed with means to support his wife
parent earns more, then the child expenses might be di- and children even if he is unemployed. The onus then
vided accordingly, Such as 20 % of the parent with small shifts onto the husband, to prove that he does not have
income and 80 % for the other parent. sufficient means to provide the maintenance.
3.HIS FATHERS OR MOTHERS:- The phrase ‘unable to maintain herself’ is with reference
A Person is bound to maintain his father or mother, if to the means that were available to the deserted wife
they are unable to maintain themselves or due to their while she was living with her husband. An abandoned
old age. The term, “his father or mother” does not ex- wife or divorced woman need not be reduced to a desti-
clude the parents claiming maintenance from their tute state before filing for maintenance for herself and
daughter. But the Magistrate before passing any order her children. The test is whether the woman is in a posi-
for maintenance against their married daughter, the court tion to maintain herself in a similar manner as when her
have to see first whether the daughter has a sufficient husband’s is with her.

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Journal of Business Management & Social Sciences Research (JBM&SSR) ISSN No: 2319-5614
Volume 6, No.7,July 2017

A deserted, separated or divorced woman and her chil- Whatever, the situation might be both husband and wife
lead an unhappy life both physically and economi- should be clear, that they are equally responsible for the
cally. She has to look after her children alone without the welfare, growth and development of their children. Just
financial, emotional and physical support of her hus- like it takes both parents to give birth to their children, it
band. It is well known that separated, deserted or di- requires both to raise them financially, morally and so-
vorced not only brings its emotional shocks, but also cially. Therefore, the right of the women and children
raises serious economic problems friction begins and a should not be violated by the husband due to his lack of
tension arises. They have to play dual role i.e. the role of responsibility as a husband or as a father.
a father and a mother and they found it hard to maintain
discipline among the children due to absence of a Grounds Which The Wife Cannot Get The
spouse. They found it difficult to handle the responsibil- Benefit Or Claim Maintenance
ity of childcare and to establish a routine for their chil- Even though a Wife is entitle to claim maintenance, but
dren. They are trapped in a vicious cycle of financial there are some exceptional cases where she cannot claim
problems and other stressful life events. They tend to the benefit of maintenance provided by her husband. A
suffer from a feeling of rootlessness and lack of identity man is duty bound to provide financial stability to his
and this is especially true of women whose identity and wife, but the wife cannot take advantage of the tide of
economy was formerly associated with that of their hus- times and make the husband as a victim by her negativity
bands. behaviour. There are three grounds which the court can
refuse to grant maintenance to the wife.
Single motherhood is a huge challenge in itself as they a) Living in adultery.
have to deal with the situation where they have lost their b) Without sufficient reasons she refuses to live with
loved one and at the same time, they need to take up the her husband
responsibilities of rearing the child and life as a whole. c) Mutual consent.
The challenges get multiplied by themselves. A large
number of cases, particularly in lower classes, husbands a) Living in adultery :-
desert their married wives with children and marry It is a moral obligation of a husband to maintain his wife
again. The deserted women are not provided with alimo- and to protect the deserted wife from the bitter necessity
ny and seldom have the women gone to court to claim of earning her living by going in the wrong directions
maintenance. Many of them earn their livelihood by which is against the society like for example by falling
working as maidservants or taking up petty job. In some into flesh trade just to get a sum of money to provide for
of cases they fall prey to the gang of traffickers. her basic necessities of life like clothing, food, lodging
etc. But, if a wife lives in adultery which is against the
Many women, especially in rural area are not even aware law of society she is not entitled for maintenance. Adul-
that they can claim maintenance from their husband if he tery is the breach of Marital Tie. Living in adultery does
were to desert them and their children.. Majority of the not mean a single act of adultery, but it refers to course
women do not approach the court even if they are de- of conduct more than one.
prived of their rights which they are entitled to. Some of
them feel that going to the court to file a suit against the b) Without sufficient reasons she refuses to live with
husband is a matter of prestige for them and their fami- her husband:-
lies. Financial difficulty is also a problem to go to the The wife must prove that there is a sufficient reason why
court. Also many do not want to claim maintenance for she refuses to stay with her husband. If a husband kept a
themselves and their children in spite of being aware of mistress it is a sufficient reason why she refuses to stay
it. Since only third of the man’s income is to be given to with him. But, if she refuses to stay with him without
this wife. Moreover, most men do not declare their entire any reason then she cannot claim for maintenance.
income and it is difficult to prove their real income in the
court. And some do not want to claim maintenance from c) Mutual consent:-
their husband because they feel that they can take care of If a husband and wife are living separately by mutual
themselves and their children on their own and do not consent wife would not be entitled to maintenance ex-
want assistance from their husband. Some feel that it cept the husband himself agrees to pay. Mutual consent
their duty to shoulder this responsibility as a mother. means desire to live apart. But both the parties must have
Claiming for maintenance for many women is not an an independent desire of living apart from one another.
easy option and lacks of social support prevent women
from opting for legal action. And even when they claim If a wife is compelled to live separately owing of the fact
or receive maintenance the women generally suffers that the husband keeps a mistress, it cannot be said that
from a sense of shame. She feels she has fallen from the she is living separately by mutual consent. If the husband
ideal and is abnormal. and wife live separately by mutual consent that do not

© The Author Blue Ocean Research Journals Open Access Journals Blue Ocean Research Journals 7
Journal of Business Management & Social Sciences Research (JBM&SSR) ISSN No: 2319-5614
Volume 6, No.7,July 2017

deprive the children living with the mother to claim and asked Nitin to shell out Rs 25,000 as monthly
maintenance. maintenance. Nitin challenged the maintenance order
and a single bench of the HC set aside the maintenance
Neglects Or Refusal To Maintain order. Following this, Sheela challenged the orders and
If a person neglects or refuse to maintain his wife and sought Rs 15,000 as maintenance.
children and it is been proved for the same that the per-
son refuse or neglects to maintain, the magistrate has the There is a spate of judicial precedents on the issue of
power to make an order directing a person concerned to maintenance. Until recently, the term ‘wife’ was inter-
provide maintenance to his wife and children. Neglect or preted in a narrow manner, since the intention of the
refusal is something more than mere failure or omission. judiciary was to protect destitute and harassed women.
An offer to maintain in future will not debar the Magis- The Indian courts held that only a legally married wom-
trate from passing an order for maintenance. Mainte- an was entitled to claim maintenance.
nance means proper appropriate food, clothing, lodging,
education. If the husband offer to maintain his wife if The change in perception vis-à-vis social relationships
she is willing to stay with him but she refuses to go and and the growing trend of live-in relationships has influ-
stay with him the circumstances will be examined and enced the Indian mindset. This is apparent from a recent
look after what is the reason behind her refusal. It could case decided by the Delhi High Court, in a personal law
be that he tortured her mentally and physically or he may matter, wherein the couple had lived like a married cou-
commit adultery. ple for 14 years and the man had concealed the fact that
he was already married. Furthermore, the woman had
Judicial Precedents taken the responsibility of running the household as a
Financially stable wife can’t claim maintenance: Bom- housewife, treated the man as her husband and had borne
bay high court and bred two of his children. The view taken by the court
Only a wife with no sufficient source of permanent in- was that on account of the nature of the relationship and
come can claim maintenance from her husband, the the aforementioned facts, the woman should not be de-
Bombay high court has ruled. A division bench of Jus- prived of her right to maintenance, under the personal
tice Vijaya Kapse-Tahilramani and Justice P N law applicable to Hindus (which constitutes almost 80
Deshmukh rejected an application by an Andheri resi- per cent of Indians). The court further expressed that
dent, Sheela Sharma (61), who had sought Rs 15,000 as denial of maintenance under such circumstances would
monthly maintenance from her husband, Nitin Sharma, amount to putting a premium on or rewarding the man
who is based in Australia. for defrauding the woman by concealing his first mar-
riage. It was further recorded that for the purpose of
"It is a well-settled law that only a wife who has no suf- granting maintenance under the personal law, women
ficient permanent source of income can claim and get placed in the position of second wife, can be treated as
maintenance from her husband who has sufficient legally wedded wives and are entitled to maintenance.
means," said the judges. The Sharmas have a son and In a case decided on 14 November 2008, the Apex Court
daughter who are married and settled abroad. The couple has recently ruled that maintenance necessarily encom-
has been living separately since 2007. passes a provision for residence and has therefore or-
dered that the woman be provided with a residential fa-
The court pointed out that it had come in evidence that cility similar to that which she had been accustomed in
Sheela had invested Rs 50 lakh in fixed deposits and also the past.
made investments in mutual funds. She has also invested
another Rs 2 lakh that she got from Nitin in a fixed de- Myths And Facts About Maintenance
posit. She resides in a flat that she had bought with Nitin,
who said she had exclusive possession of the house. This MYTH: Maintenance cases always lead to heated dis-
meant there was no rent to be paid. "It is seen that the putes between the parents of the child.
wife is getting more than Rs 37,500 per month as inter-
est. She has more than Rs 50 lakh in the bank. In addi- FACT: Most maintenance claims are settled by consent.
tion, (her) son is providing money for her maintenance This means that the mother and the father agree on
and other expenses. No one is dependent," said the judg- maintenance together with the maintenance officer,
es. without even appearing in court.

Nitin had moved the court for divorce on the grounds of MYTH: The maintenance system is unfair because it
cruelty, which was dismissed by a family court. Mean- expects fathers to pay maintenance even if they are un-
while, Sheela too moved the court. The family court al- employed.
lowed her plea and granted the couple judicial separation

© The Author Blue Ocean Research Journals Open Access Journals Blue Ocean Research Journals 8
Journal of Business Management & Social Sciences Research (JBM&SSR) ISSN No: 2319-5614
Volume 6, No.7,July 2017

FACT: The law does not require maintenance payments tively for the greater perspective of the society, still
people who have no job and no money or assets many women are being denied to claim their rights of
(such as cattle, or a car which can be sold for cash). But maintenance. The section is a measure of social justice
many people who do have money or other assets fail to and specially enacted to protect women and children. By
support their children. This is where Maintenance Act virtue of judicial pronouncements and other steps, rights
can help. of women has been restored but it will become fruitful
only when under lying thinking are changed, the women
MYTH: Asking for maintenance is a form of begging. should emancipate themselves educationally, economi-
cally and socially for their well being only and then they
FACT: Requesting maintenance is not begging, but as- can understand their rights and worth and thereafter the
serting the right. A child has a right to maintenance and social upliftment of the whole community is possible.
both parents have a legal and moral responsibility to
contribute to the costs of raising their children. Bibliography
MYTH: The Maintenance Act is gender- neutral. [1] Christian Marriage Act, 1872
[2] Criminal Procedure Code, 1973
FACT: The Maintenance Act is not gender- neutral. It [3] Hindu Adoption and Maintenance Act, 1956
does not discriminate against men or women. However, [4] Hindu Marriage Act, 1955
almost all the claims for maintenance were mothers re- [5] Hindu Minority and Guardianship Act, 1956
questing maintenance for their children. This is because
it is usually women who take care of children on a daily BOOKS
basis. [1] Ahammed, K.N. (1978). Muslim Law of Divorce,
New Delhi, Kitab Bavan.
“Society demands that parents must take care of the [2] Atray, J.P. (1988). Crimes against Women, New
children’s well being... I am aware that some parents Delhi, Vikas Publishing House.
value alcohol more than their children. What is wrong [3] Chorine, et al. (1999). Women and the Law, Bom-
with our society? Why should government have to pass bay, Pauls Press.
legislation to force parents to take care of their chil- [4] Chouhan, L. (2008). Child and the Law, New Delhi,
dren?” Mittal Publications.
[5] Diwan, P. (1987). Dowry and Protection to Married
Hon. Kawana, Deputy Minister of Justice,Parliamentary Women, New Delhi, Deep & Deep Publications.
debate on Maintenance Act [6] Jain, S.C. (1996). The Law relating to marriaged
and Divorce, Fourth ed. Delhi, Universal Law Pub-
Conclusion lishing Co. Pvt. Ltd .
The remedy under Section 125 is speedy and inexpen- [7] Kant, A. (2012). Women and the Law, New Delhi,
sive, as compared to personal laws. The provision relat- A.P.H. Publishing Corporation.
ing to maintenance under any personal law is however, [8] Pothen, S. (1987). Divorce: Its causes and Conse-
distinct and separate from Section 125. There is no con- quences in Hindu Society, New Delhi, Shakti
flict between both the legal provisions. A person is enti- Books.
tled to maintenance under Section 125 despite having [9] Roy, R. (2006). Women’s Right in India: A Femi-
obtained an order under the applicable personal law. It is nist Perspective, New Delhi, Akansha Publishing
also evident from the recent judicial decisions that the House.
Indian courts have been progressively liberal in deciding [10] Veer, U. (2004). Crime against Women, New Delhi,
cases pertaining to maintenance. The bone of contention Anmol Publications. Pvt. Ltd.
however is whether a mistress can become entitled to
receive maintenance merely from the factum of living
with a married man, coupled with the dispute as to
whether the bigamy is legally permissible. While it ap-
pears from the decisions passed under the personal laws
that the same may be possible, judicial decisions pertain-
ing to Section 125 continue to uphold the view that
maintenance can be claimed only by a lawfully wedded

Although Maintenance should be gender neutral and

should be applicable both for husband and wife respec-

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