INTRODUCTION

Chapter IX of Code of Criminal Procedure containing Sections 125 to 128 deal with order of

Maintenance of Wives, Children and parents. The word ‘Maintenance’ is not defined in the Code
of Criminal Procedure, 1973. ‘Maintenance’ in general meaning is keeping something in good
condition. ‘Maintenance’ in legal meaning is money (alimony) that someone must pay regularly
to a former wife, husband or partner, especially when they have had children together. Section
125 of Code gives effect to natural and fundamental duty of a man to maintain his wife, children
and parents, so long as they are unable to maintain. Its provisions apply to all and are
enforceable; whatever may be personal law by which the persons concerned are governed. The
object of these proceeding is to prevent vagrancy in the society, by compelling those persons
who could maintain those who are unable to maintain themselves. Vide Amendment Act No. 50
of 2001 a landmark change has been made in section 125 Cr.PC. i.e. in place of maximum
amount of maintenance of Rs. 500/- no maximum limit for maintenance amount has been fixed,
moreover express provision for interim maintenance has also been incorporated in the section.

Section 125 of Code provides that any person having sufficient means if neglects or refuses to
maintain
(a) His wife unable to maintain herself.
(b) His legitimate or illegitimate minor child whether married or not, unable to maintain itself.
(c) His legitimate or illegitimate Major child (Not being married daughter) who by reason of any
physical or mental abnormality or injury unable to maintain itself.
(d) His father or mother unable to maintain himself or herself.
Magistrate upon proof of such neglect or refusal, order such person to make any amount of
monthly maintenance allowance for each of the above stated persons.

As per the second proviso to section 125 (a) Magistrate may during pendency of the proceedings
regarding monthly allowance for maintenance order for the interim maintenance of wife, child,
father or mother. Provided that application for interim maintenance will be disposed of within 60
days from the date of service of notice to the other party. In 1999 Criminal Law Journal 2919, it
was held that though proceedings under section 125 are wholly governed by Criminal Procedure
Code and application for maintenance is entertained and disposed of by a Magistrate,
 proceedings are in reality of civil nature. So very basis of proceedings under Section 125 of code
are twofold. Firstly the person from whom Maintenance is claimed must have sufficient means
and he neglects or refuses to maintain. Secondly person who claims maintenance must be unable
to maintain him or herself. In Narain Sahu v. Sushama,1 it was held that no order for
maintenance can be passed under Section 125 unless neglect or refusal to maintain is proved.
Neglect or refusal to maintain can even be inferred from conduct.

Sub-section (3) of Section 125 of Code then provides that if any person against whom an order
has been made, has failed to comply with the order, Magistrate may issue warrant for levying the
amount of maintenance in the same manner as provided for levying fines and may sentence the
person in default to imprisonment for a term of one month for every breach of order. In Priyal v.
Dr.Pradeep Kumar Kamboj,2Minor child was claiming maintenance under Section 125 of code
from father who was living in U.S.A. The Punjab and Haryana High Court directed that
Magistrate to issue warrant for recovery of amount of maintenance to concerned court in U.S.A.
through Ambassador of India in U.S.A. and if father fails to send amount of maintenance then,
Magistrate will proceed according to law in this regard.

There are also various laws governing maintenance except secular laws as per S.125 of Criminal
Procedure Code, 1973 & The Special Marriage Act, 1954 which are as follows:
 For Hindus - Hindu Marriage Act, 1955; Hindu Adoption and Maintenance Act, 1956
 For Muslims - Muslim Women (Protection of Rights on Divorce) Act, 1986
 For Parsis - Parsi Marriage and Divorce Act, 1936
 For Christians - Divorce Act, 1869

1
1992 Criminal Law Journal 2912
2
2000(2) Recent Criminal Reports 217
 ORDER FOR MAINTENANCE OF WIVES, CHILDREN AND PARENTS
Section 125 of Cr.P.C deals with “Order of maintenance of wives, children and parents”. In this
Section, it is given the name of parties who are entitled to get maintenance, essential ingredients
to claim and get maintenance and order of the first-class magistrate.
In case of Mohd. Ahmed Khan v Shah Bano Begum, Supreme Court delivered a judgment
favouring maintenance given to an aggrieved divorced Muslim woman.

WHO CAN CLAIM AND GET MAINTENANCE?

According to Section 125(1), the following persons can claim and get maintenance:
 Wife from his husband,
 Legitimate or illegitimate minor child from his father,
 Legitimate or illegitimate minor child (physical or mental abnormality) from his father,
and
 Father or mother from his son or daughter.

WIFE
In the case of Chanmuniya v Virendra Singh, Supreme Court has defined ‘Wife’ and it includes
even those cases where a man and woman have been living together as husband and wife for a
reasonably long period of time. Strict proof of marriage should not be a precondition of
maintenance under Section 125 of the Cr.P.C.
In the case of Smt. Yamunabai Anantrao Adhav v Ranantrao Shivram Adhav, the Supreme Court
held that marriage of women in accordance with Hindu rites with a man having a living spouse is
completely nullity in the eye of law and she is not entitled to benefit under Section 125 of the
Cr.PC.
In the case of Siraj mohmed khan Janmohamadkhan v Hafizunnisa Yasinkhan, the Supreme
Court held that maintenance can be allowed to the wife when her husband is impotent.

A wife can claim and get maintenance from her husband in the following conditions:
 She is divorced by her husband, or
 Obtained divorce from her husband, and
 She has not remarried, and
 She is not able to maintain herself.
A wife cannot claim and get maintenance from her husband in the following conditions:
 Wife living in adultery, or
 Refuses to live with husband without any valid reasons, or
 Living separately by mutual consent.

LEGITIMATE OR ILLEGITIMATE MINOR CHILD

Son
‘Minor’ means a person who, under the provisions of Section 3 of the Indian Majority Act,
1875 is deemed not to have attained his majority i.e., above the age of 18 years.
Minor Son (Legitimate or Illegitimate) is entitled to get maintenance under Section 125 of
Cr.PC.
Daughter
If Minor Daughter (Legitimate or Illegitimate) is unmarried, then she is entitled to get
maintenance from her father and if she is married, then she is also entitled to get maintenance
from his father but the magistrate has to be satisfied that her husband has not essential and
sufficient means for the maintenance of his minor wife. In the case of Shahbuddin v State of UP,
a minor daughter attaining majority during the pendency of the application for maintenance was
held entitled to maintenance up to the date of majority.

LEGITIMATE OR ILLEGITIMATE ABNORMAL CHILD WHO HAS ATTAINED

MAJORITY
If any major child (Legitimate or Illegitimate) is abnormal (mentally or physically unfit), then
the father of that child has to maintain him and he can claim maintenance on this ground of
abnormality.

FATHER OR MOTHER
 Natural father and mother can claim maintenance.
 Mother includes adoptive mother, she can claim maintenance from adoptive son.
 Father can claim maintenance, it is a statutory obligation, this claim cannot be defeated
by pleading that the father failed to fulfil his parental obligation.
 A childless stepmother can claim maintenance.
In the case of Pandurang Bhaurao Dabhade v Baburao Bhaurao Dabhade, Bombay High Court
has held that the father or mother can claim maintenance under Section 125(1)(d) if he or she is
unable to maintain himself or herself. But it is also important that if parents claim maintenance to
their children, children must have sufficient means to maintain their parents and yet neglects or
refuses to maintain the father or mother.

ESSENTIAL CONDITIONS FOR GRANTING MAINTENANCE

There are some essential conditions which should be fulfilled for claiming and granting
maintenance:
1. Sufficient means for maintenance are available.
2. Neglect or refusal to maintain after the demand for maintenance.
3. The person claiming maintenance must be unable to maintain himself/herself.
4. Quantum of maintenance depends on the standard of living.

Sufficient Means to Maintain the Person

If any person has sufficient means for maintenance, then it is his duty to maintain his wives,
children and parents. If sufficient means are not available, then it will be a perfect and valid
defence for people who are legally bound for maintenance of wife, children and parents.
Neglect or refusal to maintain
Any person neglects or refuses to maintain his wives, children and parents in malafide intention
or in any type of egoistic behaviour on the demand for maintenance by them.
The person who claims maintenance must be unable to maintain himself/herself
It is a very important condition for granting maintenance that a person who is claiming
maintenance must be unable to maintain himself/herself. For example- If a wife is earning well,
then she cannot claim maintenance under this Section. In the case of Abdulmunaf v Salima, it
was held that the wife who is hale and healthy and is sufficiently educated to earn for herself but
refuses to earn from own and claim maintenance from her husband will be entitled to claim
maintenance but that her refusal to earn under the circumstances would disentitle her to get
complete amount of maintenance.

Quantum of maintenance
Quantum of maintenance means the amount of maintenance. Quantum of maintenance depends
on the standard of living. For example- If any issues raised in a rich family, then demand for
maintenance will be more as compared to poor family according to their standard of living in a
prior life. In simple words, the Court should also make sure that whether maintenance granted is
justified according to the status of a family or not?

JURISDICTION OF MAGISTRATES TO DEAL WITH MAINTENANCE PROCEEDINGS

According to Section 125(1)(d), If any person neglects or refuses to maintain his wife, children
or parents, then a Magistrate of the First Class can order such person to make a monthly
allowance for the maintenance of his wife, children or parents, at such monthly rate as such
Magistrate thinks fit, and to pay the same to such person as the direction of magistrate.
If a minor female child is unmarried, then the magistrate can order to make such allowance, until
she attains her majority. In case a minor child is married and the magistrate is satisfied that the
husband of such minor female child is not possessed of sufficient means, then the magistrate can
order father of the minor female child to make such an allowance for maintenance.
When a proceeding is pending regarding monthly allowance for maintenance, the Magistrate can
order such person to make a monthly allowance for the interim maintenance of his wife, children
or parents and the expenses of such proceeding which the Magistrate considers reasonable.
An application for the monthly allowance for the interim maintenance and expenses of
proceeding should be disposed within sixty days from the date of the notice of the application to
such person.
According to Section 125(2), If a court order for such allowance for maintenance or interim
maintenance and expenses of the proceeding, then it should be payable from the date of the order
or if so ordered, then it shall be payable from the date of application for maintenance and
expenses of proceedings.
According to Section 125(3), If any person fails to comply with the order without sufficient
cause, then Magistrate can order to issue a warrant for levying the amount with fines. If the
person again fails after the execution of the warrant, then the punishment of imprisonment for a
term which may extend to one month or until payment of sooner made is awarded

CASES
Sustenance defined
Maintenance of wife for her ‘sustenance’ does not mean animal existence but signifies leading
life in a similar manner as she would have lived in the house of her husband. Husband is duty
bound to enable his wife to live life with dignity according to their social status and strata,
Bhuwan Mohan Singh v. Meena.3
Wife defined
“Wife” Includes a woman who has been divorced by or has obtained a divorce from, her husband
and has not remarried, Section 125(1) Explanation (b), CrPC 1973.
“Wife” in Section 125 CrPC means a legally wedded wife and also includes a divorced wife, D.
Velusamy v. D. Patchaiammal.4
Maintenance only to legally wedded wife
Only a legally wedded wife is entitled to maintenance. A Hindu woman marrying a Hindu male
having a living wife, is not entitled to maintenance as this marriage is void, Yamunabai
Anantrao Adhav v. Anantrao Shivram Adhav.5
Maintenance to ‘previous wife’
A Muslim husband contracting another marriage or taking a mistress is liable to pay maintenance
to the previous wife who also has right to live separately which is payable from the date of the
other marriage. Irrespective of religion, husband cannot absolve his liability by offering to take
back the wife and maintain her, Begum Subanu v. A.M. Abdul Gafoor.6
Maintenance to second wife

3
(2015) 6 SCC 353.
4
(2010) 10 SCC 469.
5
(1988) 1 SCC 530.
6
(1987) 2 SCC 285.
Husband who conceals subsistence of his earlier marriage while marrying the second wife is
entitled to give maintenance to second wife. Second wife is to be treated as a legally wedded
wife for the purpose of maintenance, Badshah v. Urmila Badshah Godse.7
Wife ‘living separately with mutual consent’ does not include divorced wife
The meaning of ‘wife’ under Sections 125(1) and 125(4) CrPC is different. Section 125(4)
contemplates a married woman. Wife living separately from husband with mutual consent does
not mean wife who obtains divorce by mutual consent and lives separately and therefore cannot
be denied maintenance on this ground, Vanamala v. H.M. Ranganatha Bhatta.8
Is an earning wife entitled to maintenance?
Wife having a school of her own and possessing wet lands is in a better financial position than
husband who is not doing well in his profession and has no land. Hence, it is unnecessary to pay
any maintenance to the wife, Rosy Jacob v. Jacob A. Chakramakkal.9
Wife’s income to be accounted for determining maintenance
Wife’s income has to be taken into account while determining the amount of maintenance
payable to her. It is not an absolute right of a neglected wife to get maintenance nor it is an
absolute liability of husband to support her in all the circumstances, Bhagwan Dutt v. Kamla
Devi.10
Maintenance to woman in a live-in relationship
The Supreme Court expressed its opinion that a broad interpretation of “wife” should include
cases where man and woman live together as husband and wife for a reasonably long period of
time (live-in relationship/ presumed marriage/ de facto marriage/ cohabitation). A strict proof of
marriage should not be a precondition for maintenance under S. 125 CrPC so as to fulfill the true
spirit and essence of the beneficial provision of maintenance, Chanmuniya v. Virendra Kumar
Singh Kushwaha.11 (This judgment has however been referred to a larger bench)
Recently, it is held that a woman in a live-in relationship has an efficacious remedy to seek
maintenance under Protection of Women from Domestic Violence Act, 2005 even if it is
assumed that she is not entitled to the same under Section 125 CrPC. In fact, under the Domestic

7
(2014) 1 SCC 188.
8
(1995) 5 SCC 299.
9
(1973) 1 SCC 840.
10
(1975) 2 SCC 386.
11
(2011) 1 SCC 141.
Violence Act, the victim would be entitled to more relief than what is contemplated under
Section 125 CrPC, Lalita Toppo v. State of Jharkhand.12
Woman knowingly entering in a live-in relationship with a married man
All live-in relationships are not relationships in the nature of marriage. There has to be some
inherent/ essential characteristic of marriage though not a marriage legally recognised. A live-in
relationship between an unmarried woman knowingly entering into relationship with a married
male cannot be termed as a relationship in the “nature of marriage” and her status would be that
of a concubine or mistress and therefore is not entitled to maintenance, Indra Sarma v. V.K.V
Sarma.13
Muslim woman entitled to maintenance under CrPC
A divorced Muslim woman has right under Section 125 CrPC to claim maintenance even beyond
the iddat period. If the woman is able to maintain herself then the liability of husband to maintain
her ceases with the expiration of iddat period. However, on the inability of maintaining herself,
she can take recourse of that section. Section 125 has an overriding effect on personal law in case
of conflict between the two, Mohd. Ahmed Khan v. Shah Bano Begum.14

CONCLUSION
Chapter IX of the Code of Criminal Procedure is essential for the protection of the rights of the
divorced wife, children and aged parents. It is made to protect them from unusual livelihood.
Maintenance is the duty of everyone who has sufficient means for the same. In this chapter of
Cr.PC, there are various provisions given related to maintenance like who is entitled to
maintenance, essential conditions for granting maintenance, Procedure of maintenance,
Alteration of the previous order, Enforcement of order of maintenance etc.

12
2018 SCC OnLine SC 2301.
13
(2013) 15 SCC 755.
14
(1985) 2 SCC 556