CHAPTER-2

PROVISION OF MAINTENANCE U/S 125-128 OF THE CODE OF

CRIMINAL PROCEDURE AND JUDICIAL APPROACH.
Section 125 to 128 of Cr.P.C lay provisions for maintenance of wives,
children and parents. Seetionl25 of the Code gives effect to the natural and
fundamental duty of a man to maintain his wife, children and parents so long as they
are unable to maintain themselves This provision is a measure for social justice and
specially enacted to protect women and children, (also old and infirm poor parents)
and falls within the constitutional sweep of Article 15(3) reinforced by Article 39.1
2.1 Territorial Jurisdiction:
Prior to 1973 the place where the wife resided after desertion or divorce was
not material for granting jurisdiction to the court in a maintenance proceeding. This
caused a lot of hardship to the wifes who had to go all the way to the place where the
husband resided or where they last resided together. A recommendation was therefore
made by the Law Commission to amend the provision and remove this hardship.
Consequently changes were made and the present position is that proceedings under
section 125may 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 as the case
may be , or with the mother of even illegitimate child. Of late , it has been held by the
Supreme Court that maintenance application may be filed in any court where husband
or wife is residing even temporarily (but not casually).
2.2 Application:
Its provisions apply and are enforceable whatever may be the personal law by
which the persons concerned are governed2 But the personal law of the parties is
relevant for deciding the validity of the marriage and therefore cannot be altogether
excluded from consideration.3 The Supreme Court had held that s. 125 was applicable
to all irrespective of their religion. It was, therefore, applicable to Muslim women
1 Ramesh Chandra Kaushal v. Veena Kaushal, AIR 1978 SC 1807; Chiguruupari Bambasiva Rao v.
Chigurupati Vijayalakshmi, (1997) 11 SCC 84: (1998) 9 JT 482,. Sriram Mamkyama v. Sriram Appoji,
1992 CrLJ 1794 (On).
2Nanak Chand v. Chandra Kishore, AIR 1970 SC 446 : 1970 Cr LJ 522; Maung Tin v. Ma Hmin,
(193) 11 Ran 226 (FB) ; R. Begum v. M.N. Motialla, 1989 Cr LJ NOC 155 (Ori.)
3 Yamunabai v. Anantrao, 1988 Cr. LJ 793 : AIR 1988 SC 644.
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also.4 However, thereafter Parliament passed a Muslim Women's (Protection of Rights
on Divorce) Act, 1986, which provides other remedies for Muslim women and allows
them to use the remedy provided by s. 125 only if the husband consents to it. In the
absence of a declaration by the husband, that he would prefer to be governed by
sections 125 to 128 and not under section 5 of the 1986 Act, the divorced Muslim
wife was not granted maintenance.5
This section has nothing to do with conjugal rights but deals with maintenance
only.6 It only provides a speedy remedy against starvation for a deserted wife or child
or parents. It provides for a summary procedure which does not cover entirely the
same ground as the civil liability of a husband or father or son under his personal law
to maintain his wife or child or parents. When substantial issues of civil law are raised
between the parties their remedy lies in Civil Court.7 It has no relationship to the
personal law of the parties.8