Question: what are provision in crpc pertaining to

maintenance of wife?
When can maintenance be altered?

(BJS 2006, BJS 2011)

Answer:
The status of women in India has been subject to
many changes over past, from equal status with men
in ancient times through the low points of the
medieval period and again following the
independence of India there was a new air of hope
among women as Indian constitution focused largely
on human rights, and also notably gave women equal
rights and opportunity. Despite all the challenges to
Indian women, there has been much progress made
in recent years which started elevating the public
consciousness about the need for fair, equal, and
humane treatment of women. The women-
movement motivated many laws to be enforced in
India, for women's protection.

Maintenance Under Section 125 of The Code of

Criminal Procedure 1973 is one such law meant for
the protection of the rights of women. Women have
legitimate right for claiming maintenance for
themselves and their children from their husbands
under various legislation.
Supreme Court has rightly observed in Badshah Vs.
Urmila Badshah Godse & Another, (2014) that
nature of provisions u/s 125 CrPC is social justice
legislation. It is a measure of social justice and an
outcome of the natural duty of a man to maintain his
wife, when she is unable to maintain herself. The
object of maintenance is to prevent vagarancy and
destitution among neglected wife.

The concept of ‘maintenance’ in India is covered

both under Section 125 of the Code of Criminal
Procedure, 1973 and under the personal laws. This
concept further stems from Article 15(3) of the
Indian constitution which envisaged that the state
can make special provision for woman and children.
The object of proceedings under 125 CRPC, however,
is not to punish a person for his past neglect. But the
said provision has been enacted to compel husband
to provide support to wife who is unable to support
herself and has moral claim to support. Maintenance
can be claimed either at the interim stage, ie, during
the pendency of proceedings, or the final stage. This
Section gives a statutory recognition to the moral,
legal and fundamental duty of a man to maintain his
wife.

Essentials of section 125 crpc:

i) Sufficient means to maintain:

According to Section 125(1) of the Code of Criminal
Procedure, the person from whom maintenance is
claimed must have sufficient means to maintain the
person or persons claiming maintenance. Here, the
expression ‘means’ does not signify only visible
means such as real property or definite employment.
The words ‘sufficient means’ should not be confined
to the actual pecuniary resources but should have
reference to the earning capacity. If a man is healthy
and able-bodied, he must be held to possess the
means such as real property or definite employment.

ii) Neglect or refusal to maintain:

As per Section 125(1) of the Code of Criminal
Procedure, the person from whom maintenance is
claimed must have neglected or refused to maintain
the person or persons entitled to claim maintenance.

iii) Wife claiming maintenance must be unable to

maintain herself:
As the object of Section 125 of the Code is mainly to
prevent vagrancy; the requirement to pay
maintenance should be only in respect of persons
who are unable to maintain themselves. The inability
of the wife to maintain herself is a condition
precedent to the maintainability of her application
for maintenance.
Maintenance to legally married wife : Wife can claim
maintenance only if she is a legal wedded wife.
Marriage must be a valid one as per the personal law
of both the parties, but when the marriage is proved
illegal the wife cannot claim for maintenance. Wife
means and connotes divorced wife or divorced by
mutual consent, but the divorced wife can claim
maintenance as long as she does not remarry.

Supreme Court in Savitaben Somabhai Bhatiya Vs.

State of Gujarat held that a woman who is not
lawfully married cannot be treated as ‘wife’ and not
entitled to maintenance u/s 125 Crpc. As such, it is
desirable to take note of the plight of the
unfortunate and duped women, who entered into
wedlock with a married man but are not regarded as
wife for purpose of section 125 crpc. As clearly
reflected in Sec. 125 of the Cr PC, there is no scope
for enlarging its scope by introducing any artificial
definition to include woman not lawfully married in
the expression ‘wife’. This may be an inadequacy in
law, which only the legislature can undo. The intent
of legislature was to consider it necessary to include
within the scope of Sec. 125 an illegitimate child but
it has not done so with respect to woman not
lawfully married.
However, second wife is entitled to maintenance u/s
125 CrPC if the husband had concealed from her the
subsistence of his first marriage. This was held by
Supreme Court in Badshah Vs. Urmila Badshah
Godse.
Also, a judicially separated wife is also entitled to
Maintenance as held in case of Sanju Devi v. State of
Bihar– In this recent case taken up by the Supreme
Court, the Court remarked that that if a divorced
wife is entitled for maintenance then there is no
reason why a wife who is judicially separated is not
entitled for maintenance.
Live-in-relationship & presumption of marriage u/s
114 Evidence Act: Supreme Court in Madan Mohan
Singh Vs. Rajanikant said that Live- in-relationship
between parties if continued for a long time, cannot
be termed in as “walk in & walk out”. There is a
presumption of marriage between them and they
are entitled to Maintenance under 125 Crpc.

Grounds on which Wife cannot get Maintenance:

Even though a wife is entitled to claim maintenance,

there are some exceptional cases where she cannot
claim the benefit of maintenance to be provided by
her husband. A man is duty bound to provide
financial stability to his wife, but the wife cannot take
advantage of this law.
The grounds on which the court can refuse to grant
maintenance to the wife are:
A) Wife living in adultery :
 As per Section 125(4) of the Code of Criminal
Procedure, 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 Section
125 if she is living in adultery. Living in adultery
does not mean a single act of adultery, but it
refers to course of conduct more than one.
Without

B) Without sufficient reasons wife refuses

to live with her husband:
The wife must prove that there is a sufficient reason
why she refuses to stay with her husband. As per
explanation to Section 125(3) of the Code, if a
husband has contracted marriage with another
woman or keeps a mistress, it shall be considered to
be a just ground for his wife’s refusal to live with him.
But, if she refuses to stay with him without any
reason then she cannot claim for maintenance.
 In M.P. Mary vs V. Varghese court held that it is
made evident from the language
of Section 125 (4) Cr.P.C which also stipulates that
the wife shall not be entitled to receive
any maintenance allowance "if without any
sufficient reason the wife refuses to live with her
husband".

C) Mutual consent of spouses:

If a husband and wife are living separately by mutual
consent wife would not be entitled to maintenance
except when the husband himself agrees to pay.
Mutual consent means desire to live apart. But both
the parties must have an independent desire of living
apart from one another. If a wife is compelled to live
separately owing of the fact that the husband keeps
a mistress, it cannot be said that she is living
separately by mutual consent. A divorced wife
cannot be characterized as a wife living separately by
mutual consent. A divorced wife is a person who lives
separately from her former husband by virtue of a
change in status consequent upon the dissolution of
the marriage, provided she remains unmarried.

D) The wife must not relinquish her right to

maintenance:
In the case of divorce by mutual consent if the wife
had relinquished her right to maintenance, she
cannot later claim maintenance.

Status of earning wife whether entitled to

maintenance from her husband u/s 125 CrPC:
Supreme Court in Chaturbhuj Vs. Sita Bai, said that
where the husband had placed material to show that
the wife was earning some income, it has been held
by the Hon’ble Supreme Court that it is not sufficient
to rule out the application of Sec. 125 CrPC. It has to
be established that with the amount she earned, the
wife was able to maintain herself.
 It should be noted that merely because the wife is
capable of earning it is not a reason to reduce the
maintenance awarded to her . This was held in
Shailja & Anr. v. Khobanna.

limit of amount of maintenance u/s 125 CrPC :

Code of Criminal Procedure (Amendment) Act, 2001
has deleted the words “not exceeding five hundred
rupees in the whole”, thus, all State amendments to
section 125 CrPC by which a ceiling has been fixed to
the amount of maintenance to be awarded to the
wife have become invalid. ( Manoj Yadav vs. Pushpa)

Section 125 of CrPC stands independently and in

addition to the maintenance awarded under any
other law: in Prakash babulal dangi v. State of
Maharashtra, it was held that an order under Section
125 of CrPC stands independently and in addition to
the maintenance awarded under any other
legislation (the Domestic Violence Act).The court had
further observed that there remains absolutely no
scope as to the confusion between the parties as to
which order is to be obeyed. It follows that, as both
the orders are passed by two different forums in two
different proceedings, both the orders are binding
on the Petitioner-husband and Respondent-wife and
they have to comply with both the orders, unless
they are varied or set aside.

Also an order of maintenance u/s 125 CrPC does not

disentitle the wife to claim maintenance under the
Hindu Adoptions And Maintenance Act, 1956
.Supreme Court in Nagendrappa Natikar Vs.
Neelamma, said that an order passed u/s 125 CrPC
by compromise or otherwise cannot foreclose
remedy available to a wife u/s 18(2) of the Hindu
Adoptions And Maintenance Act, 1956. Order passed
u/s 125 CrPC would not preclude wife from making
claim u/s 18 of the 1956 Act.

Legal Provisions of Alteration in Allowance of

Maintenance Granted by a Court:
 Section 127 of Code of Criminal Procedure provides
that upon proof of any change in the circumstances
of the person receiving or paying the monthly
allowance, as the case may be, the Magistrate may
make any alteration in the allowance as he may
deem fit.

Similarly, if it appears to the Magistrate that, in

consequence of any decision of a Civil Court, the
maintenance order should be varied or cancelled, he
may vary or cancel the same.

The expression “change in the circumstances” in S.

127 does not refer to a temporary change but
ordinarily implies a change in the material
circumstances of the person, his property or
otherwise, an increase or decrease of his liabilities,
and so on.