RECENT JUDGEMENTS ON MAINTENANCE UNDER SECTION 125 CrPC

1. Sanjeev Kapoor v. Chandana Kapoor & Ors, Criminal Appeal Nos.286 OF 2020
(Arising Out of SLP(CRL.) no.1041 OF 2020)
 The Hon’ble Supreme Court, on 19th February 2020, in the matter of Sanjeev
Kapoor vs. Chandana Kapoor & Ors. pronounced that Magistrate does not
become functus officio after passing an order under Section 125 Cr.P.C. The
embargo as contained in Section 362 is, thus, clearly relaxed in proceeding
under Section 125 Cr.P.C.
 The Hon’ble Supreme Court observed that:
The embargo put on the criminal court to alter or review its judgment is with a
purpose and object. (Para 18)
 Criminal justice delivery system does not cloth criminal court with power to
alter or review the judgment or final order disposing the case except to correct
the clerical or arithmetical error. After the judgment delivered by a criminal
Court or passing final order disposing the case the Court becomes functus
officio and any mistake or glaring omission is left to be corrected only by
appropriate forum in accordance with law. (Para 18)
 Whether the embargo contained in under Section 362 Cr.P.C. prohibiting the
court to alter or review its judgment or final order disposing the case applies to
order passed under Section 125 Cr.P.C. ?
 (Para 20) Section 362 Cr.P.C. begins with the word “save as otherwise
provided by this Code or by any other law for the time being in force”. The
above expression clearly means that rigour as contained in Section 363 Cr.P.C.
is relaxed in following two conditions: –
i) Save as otherwise provided by the code of Criminal Procedure.
ii) any other law for the time being in force.
 Section 362 Cr.P.C., thus, although put embargo on the criminal Court to alter
or review its judgment or final order disposing the case but engrafted the
exceptions as indicated therein. The legislature was aware that there are and
may be the situations where altering or reviewing of criminal court judgment
is contemplated in the Code itself or any other law for the time being in force.
(Para 21)
  The closer look of Section 125 Cr.P.C. itself indicates that the Court after
passing judgment or final order in the proceeding under Section 125 Cr.P.C.
does not become functus officio. The Section itself contains express
provisions where order passed under Section 125 Cr.P.C. can be cancelled or
altered which is noticeable from Section 125(1), Section 125(5) and Section
127 of Cr.P.C. (Para 23)
 In Section 125 Cr.P.C the expression used is “as the magistrate from time to
time direct”. The use of expression ‘from time to time’has purpose and
meaning. It clearly contemplates that with regard to order passed under
Section 125(1) Cr.P.C., the Magistrate may have to exercise jurisdiction from
time to time. Use of expression ‘from time to time’ in is exercise of
jurisdiction of Magistrate in a particular case. (Para 24)
 The above Legislative Scheme indicates that Magistrate does not become
functus officio after passing an order under Section 125 Cr.P.C., as and when
occasion arises the Magistrate exercises the jurisdiction from time to time. By
Section 125(5) Cr.P.C., Magistrate is expressly empowered to cancel an order
passed under Section 125(1) Cr.P.C. on fulfilment of certain conditions. (Para
25)
 Section 127 Cr.P.C. also discloses the legislative intendment where the
Magistrate is empowered to alter an order passed under Section 125 Cr.P.C.
Sub-Section (2) of Section 127 Cr.P.C. also empower the Magistrate to cancel
or vary an order under Section 125. The Legislative Scheme as delineated by
Sections 125 and 127 Cr.P.C. as noted above clearly enumerated the
circumstances and incidents provided in the Code of Criminal Procedure
where Court passing a judgment or final order disposing the case can alter or
review the same. The embargo as contained in Section 362 is, thus, clearly
relaxed in proceeding under Section 125 Cr.P.C. (Para 26)
 Section 125 Cr.P.C. has to be interpreted in a manner as to advance justice and
to protect a woman for whose benefit the provisions have been engrafted.
(Para 29)
2. Lalita Toppo vs The State Of Jharkhand, (2019) 13 SCC 796.
 The Three-Judge Bench of the Supreme Court headed by Chief Justice Ranjan
Gogoi, in this case has categorically held that maintenance can be claimed
 under the provisions of the Protection of Women from Domestic Violence
Act, 2005 (Domestic Violence Act) even if the claimant is not a legally
wedded wife and therefore not entitled to claim of maintenance under Section
125 of Code of Criminal Procedure.
 The Bench explained that the provisions contained in Section 3(a) of the DVC
Act, 2005 which defines the term “domestic violence” also constitutes
“economic abuse” as domestic violence. The Court further opined that under
the provisions of the Domestic Violence Act, the victim i.e. estranged wife or
live-in-partner would be entitled to more relief than what is contemplated
under Section 125 of the CrPC i.e. to a shared household also.
3. Sachin Gupta v. Rachana Gupta, 2019 (257) DLT 87.
 In the case, the Petitioner has challenged the Trial Court’s order, whereby
petitioner’s application objecting Respondent wife’s claim for maintenance
under section 125 of CrPC on the ground of territorial jurisdiction has been
rejected. Here it would be relevant to mention that the Respondent had
instituted application for maintenance in Delhi and the Petitioner opposed the
same on the ground that in all proceedings except in these proceedings the
Respondent has mentioned her residential address as Aligarh.
 The Respondent on the other hand contended that though Aligarh is her
parental home, she was residing in Delhi and had filed the petition in Delhi as
she is living with her brother in Delhi.
 The High Court of Delhi referred to Section 126 (1) of CrPC which stipulates
that the proceedings under 125 CrPC may be filed in any district where the
respondent resides or where his wife resides or where the respondent last
resided with his wife, or as the case may be, with the mother of the illegitimate
child.
 In view of the facts of the instant case, the High Court of Delhi noted that
keeping in view of the fact that the wife can maintain a petition at any place
where she is residing and the fact that the respondent has placed on record
copies of her Aadhar Card, Voter ID Card, which reflect the address of Delhi,
the Trial Court did not commit any error in rejecting the application of the
petitioner holding that the Trial Court has territorial jurisdiction.
4. Reema Salkan V. Sumer Singh Salkan, Criminal Appeal No.1220 of 2018
(Arising Out of Slp(Crl.) No.5495 of 2018)
 The High Court instead directed the respondent/husband to pay the
maintenance amount at the rate of Rs.9,000/- per month from 9 th December,
2010 onwards to the appellant/wife. The application for maintenance, filed in
2003, was finally disposed of on 28th January, 2015 in the following terms:
“Relief: In view of my finding on issue no.1 above the petition u/s 125 Cr.P.C.
is partly allowed and the respondent is directed to pay maintenance to the
petitioner as under:-

1. From the date of filing of the petition i.e. 17.07.2003 till 08.12.2010, @ of
Rs.10,000/- per month.

2. With effect from 08.12.2010 onwards the petitioner is not entitled to any
maintenance and her claim in this respect stands dismissed.

 The respondent shall clear off the arrears of maintenance if any, within three
months from the date of order. Any payment made towards interim
maintenance during the pendency of the present petition and any maintenance
paid for the concurrent period, as per the order passed by any other competent
court in any other proceeding/litigation between the parties, the money already
deposited by the orders of the Superior Courts or by the order of the
predecessor of this court, by the respondent shall be adjusted, if required. No
orders as to costs. File be consigned to record-room.”
 The sole question is about the quantum of monthly maintenance amount
payable by the respondent to the appellant. In that, the Family Court has
unambiguously held that the respondent neglected to maintain the appellant,
for the elaborate reasons recorded in its judgment dated 28th January, 2015.
That finding of fact has been upheld by the High Court vide the impugned
judgment. The Family Court has also found as a fact that the appellant was
unemployed, though she is an MA in English and holds a Post- graduate
Diploma in Journalism and Mass Communication and is also a Law Graduate
enrolled with the Bar Council of Delhi. The High Court has not disturbed that
finding recorded by the Family Court. Resultantly, both the Courts have
 concurrently found that, in law, the respondent was obliged to maintain the
appellant.
 The High Court took into account all the relevant aspects and justly rejected
the plea of the respondent about inability to pay maintenance amount to the
appellant on the finding that he was well educated and an able-bodied person.
Therefore, it was not open to the respondent to extricate from his liability to
maintain his wife.
5. Sanjay Kumar Sinha V. Asha Kumari & Anr., Civil Appeal No. 3658 of 2018
(Arising out of S.L.P.(c) No. 6301 of 2017)
 The dispute is between the husband and wife. Appellant-husband has filed
the divorce petition under Section 13 of the Hindu Marriage Act, 1955
against the respondent wife. The Respondent-wife filed an application
under Section 24 of the Hindu Marriage Act, 1955 in the aforesaid divorce
petition and claimed for interim maintenance. The Family Judge awarded
the maintenance (dated 15-7-2016). It is to be noted that the Respondent
wife had also filed an application under Section 125 of the Criminal
Procedure Code, 1973 seeking maintenance before the Principal Judge,
Family Court.(maintenance awarded, dated 3-1-2011). The Appellant-
husband aggrieved by the order dated 15-7-2016, filed civil miscellaneous
application in the High Court, which was dismissed. The Supreme Court
heard the present appeal by way of special leave by the Appellant-husband
and held that the Maintenance awarded under Section 24 of Hindu
Marriage Act, 1955 supersedes the Maintenance awarded under Section
125 of Criminal Procedure Code, 1973.
6. Kamala vs M.R.Mohan Kumar on 24 October, 2018, Criminal Appellate
Jurisdiction Criminal Appeal Nos. 2368-2369 OF 2009
 The Supreme Court in this case has reiterated the settled principle of law that
unlike other matrimonial proceedings, a strict proof of marriage is not
essential in claim of maintenance under Section 125 of CrPC and that when
the parties live together as husband and wife, there is a presumption that they
are legally married couple for claim of maintenance under Section 125 CrPC.
 The Two-Judge Bench of the Supreme Court in view of the evidence and
material available on record allowed the appeal holding that there was a valid
 marriage between the parties and moreover a strict proof of marriage was not a
pre-requisite for claiming maintenance under Section 125 of CrPC.
 The Supreme Court also made reference to it’s judgment in the case of
Dwarika Prasad Satpathy v. Bidyut Prava Dixit, wherein it was held that the
standard of proof of marriage in a Section 125 proceeding is not as strict as is
required in a trial for an offence under Section 494 IPC. It was also noted in
the case that an application under Section 125 does not really determine the
rights and obligations of the parties as the section is enacted with a view to
provide a summary remedy to neglected wives to obtain maintenance.
 The apex Court in the case also remarked that a broad and expansive
interpretation should be given to the term “wife” to include even those cases
where a man and woman have been living together as husband and wife for a
reasonably long period of time, and strict proof of marriage should not be a
precondition for maintenance under Section 125 CrPC, so as to fulfil the true
spirit and essence of the beneficial provision of maintenance under Section
125.
7. Sanju Devi v. State of Bihar, 2017 SC 1377.
 In this the Supreme Court, the Court rejected High Court’s order whereby the
Petitioner was disentitled from maintenance under Section 125 of the Code of
Criminal Procedure, 1973 on the ground that the husband and wife had already
judicially separated. The Court also 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.
8. Manoj Kumar v. Champa Devi, 2017 SC 390.
 In this case, the Supreme Court in appeal upheld the order passed by the High
Court of Himachal Pradesh, whereby the Court had ordered the husband in the
case to grant maintenance to his deserted and divorced wife.
 In the case, the husband had contended that as the decree of divorce had been
passed he was under no obligation to pay maintenance to the wife as
contemplated under Section 125(4) of CrPC. However, the High Court held
that a divorced woman continues to enjoy the status of ‘wife’ for claiming
maintenance under Section 125 of CrPC.
9. Prakash Babulal Dangi v. The State of Maharashtra, 2017 BHC 1555.
  In this case, the wife had initially claimed maintenance under Section 125
CrPC and the Court had awarded maintenance of Rs. 6000 to the wife and Rs.
4000 to her minor daughter. While the case under Section 125 of CrPC was
pending, a case was filed and an interim maintenance was sought by the wife
under Domestic Violence Act, whereby the husband was directed to pay
maintenance of Rs. 8000 and Rs. 5000 to wife and daughter respectively.
 In view of the aforesaid context, the Bombay High Court made reference to
Section 36 of Domestic Violence Act, 2015 which entails that the provisions
of the Act shall be in addition to, and not in derogation of the provisions of
any other law and held that that the amount of maintenance awarded under the
Domestic Violence Act cannot be substituted to the order of maintenance
under Section 125 of CrPC.
10. Sunita Kachwaha V. Anil Kachwaha, AIR 2015 SC 554.
 Earning wife & its effect: Merely because wife was earning something, it
would not be a ground to reject her claim for maintenance u/s 125 CrPC.
11. Jaiminiben Hirenbhai Vyas & Another V. Hirenbhai Rameshchandra Vyas &
another, AIR 2015 SC 300 (Paras 6 & 7)
 On the Appellants application for maintenance made for herself and her
children, the Family Court granted maintenance in the sum of Rs 5,000/- only
to her daughter under Section 125 Cr.P.C. The son was living with the father
who was maintaining him and was therefore not granted maintenance. The
main ground for denying maintenance to the Appellant was that she was found
to have been working before her marriage and the Family Court was of the
view that she could earn her living even now after the separation and therefore
she was denied maintenance. This view did not find favour with the High
Court, which noted that the Appellant had stopped working after her marriage
and had given birth to two children. She had been only looking after the
family and had therefore stopped working. The High Court thus reversed the
Order of the Family Court and granted maintenance in the sum of Rs. 5,000/-.
This was however granted from the date of the order.
 The High Court has not given any reason why it has not directed maintenance
from the date of the application for maintenance. Section 125 of the Cr.P.C.,
therefore, impliedly requires the Court to consider making the order for
 maintenance effective from either of the two dates, having regard to the
relevant facts. For good reason, evident from its order, the Court may choose
either date. It is neither appropriate nor desirable that a Court simply states
that maintenance should be paid from either the date of the order or the date of
the application in matters of maintenance.
 The High Court has not given any reason for not granting maintenance from
the date of the application. We are of the view that the circumstances
eminently justified grant of maintenance with effect from the date of the
application in view of the finding that the Appellant had worked before
marriage and had not done so during her marriage. There was no evidence of
her income during the period the parties lived as man and wife.
 Court should record reasons whether maintenance u/s 125 CrPC would be
payable from date of order or from date of application?: Provision of Section
125(2) CrPC expressly enables the Court to grant maintenance from the date
of the order or from the date of the application. However, Section 125 of the
CrPC must be construed with sub-Section (6) of Section 354 of the CrPC.
Thus, every final order under Section 125 of the CrPC and other Section 354
must contain points for determination, the decision thereon and the reasons for
such decision. In other words, Section 125 and Section 354(6) must be read
together. Section 125 of the CrPC, therefore, impliedly requires the Court to
consider making the 13 order for maintenance effective from either of the two
dates, having regard to the relevant facts. For good reason, evident from its
order, the Court may choose either date. It is neither appropriate nor desirable
that a Court simply states that maintenance should be paid from either the date
of the order or the date of the application in matters of maintenance. Thus, as
per Section 354(6) of the CrPC, the Court should record reasons in support of
the order passed by it, in both eventualities. The purpose of the provision is to
prevent vagrancy and destitution in society and the Court must apply its mind
to the options having regard to the facts of the particular case.

Under what circumstances maintenance can be denied to wife and who all are liable to
receive maintenance and how can it be denied for them.
Section 25 of the Crpc states that:

“125. Order for maintenance of wives, children and parents. - (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

(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
part of each month’s 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:

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 in
living in adultery, or that without sufficient reason she refuses to live with her husband, or
that they are living separately by mutual consent.”

According to section 125(1), the persons liable to claim maintenance are-

1. wife, who is unable to maintain herself,
2. legitimate or illegitimate child minor child, whether married or not, unable to
maintain itself,
3. legitimate or illegitimate child (excluding a married daughter) who has attained
majority and is physically or mentally abnormal or injured or is unable to maintain
himself,
4. father or mother, who is unable to maintain herself or himself.

Cancellation of the order for maintenance

1. The maintenance to a wife can be denied if-

i. she is earning,
ii. she is living in adultery,
iii. she refuses to live with her husband, without any sufficient reason,
iv. both are living separately by mutual consent.
2. Maintenance can be denied if it appears to the magistrate that, in consequence of any
decision of competent civil court, any order made under section 125 should be
cancelled, he shall cancel the order for maintenance. [section 127 (2)].
3. Maintenance can be denied 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-
(a) the woman has, after the date of such divorce, remarried, cancel such order as
from the date of her remarriage;
(b) the woman has been divorced by her husband and that she has received, whether
before or after the date 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,
(i) in the case where such sum was paid before such order, from the date on
which such order was made:
(ii) 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;

(c) the woman has obtained a divorce from her husband and that she had voluntarily
surrendered her rights to maintenance or interim maintenance, as the case may be,
after her divorce, cancel the order from the date thereof. [section 127(3)]
Archita v. Sunil Seth, 2019 SCC OnLine Del 6484, Order dated 11-01-2019

 The Bench of Sanjeev Sachdeva, J. disposed of a petition holding that the

petitioner (wife) was not entitled to maintenance under Section 125 CrPC for a
period prior to the grant of divorce.
 The petitioner and the respondent (husband) were married. They were living
separately since 2004. Divorce was granted in 2015 on an application filed by
the respondent on the ground of mental cruelty and desertion by the wife. The
decree of divorce was upheld by the Supreme Court. Prior to that in 2007, the
petitioner had applied under Section 125 CrPC for interim maintenance. By
the impugned judgment, the trial court dismissed the application for
maintenance on petitioner’s failure to show that she had sufficient cause to
live separately.
 S.K. Srivastava and Gurjeet Singh, Advocates for the petitioner assailed the
impugned judgment while Senior Advocate Kirti Uppal with Sidharth Chopra
and Shaini Bharadwaj, Advocates representing the respondent supported it.
 The High Court referred to Section 125(4)which states that wife is not entitled
to receive maintenance is not entitled to receive maintenance if without any
sufficient reason she refuses to live with her husband. Relying on Rohtash
Singh v. Ramendri, (2000) 3 SCC 180, the Court held that as the divorce
decree was passed on ground of desertion which was upheld by Supreme
Court, the petitioner was clearly disentitled to maintenance under Section 125.
However, it was cleared that she could still file application for maintenance
provided she is able to satisfy the condition of Section 125(1)(a) that she is
unable to maintain herself