CHAPTER-1 INTRODUCTION

A) Introduction

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
Maintenance” is an amount payable by the husband to his wife who is
unable to maintain herself either during the subsistence of marriage or
upon separation or divorce. Various laws governing maintenance 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
secular laws – Criminal Procedure Code, 1973; Special Marriage Act,1954

1.1Territorial 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 wife’s 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).

B) Theoretical Background

Temporary Maintenance
Temporary maintenance is granted by the court during the pendency of
proceeding for divorce or separation to meet the immediate needs of the
petitioner.
Under Section 24 of Hindu Marriage Act, 1955 either of the spouses, husband
or wife can be granted relief if the court is satisfied that the applicant has no
independent income sufficient for his or her support and necessary expenses of
the proceedings pending under the Act.
Interim maintenance may also be claimed under Section 125 CrPC by the wife
during the pendency of proceeding for regarding monthly allowance for
maintenance under Section 125(1) CrPC. Furthermore, Section 36 of Special
Marriage Act, 1954 also makes provision for the wife to seek expenses from the
husband if it appears to the district court that she does not have independent
income sufficient for her support and necessary expenses of proceedings under
Chapters V or VI of that Act.Still further, under Parsi Marriage and Divorce
Act, 1936 either Parsi wife or husband is entitled to claim expenses where the
proceeding is pending under the Act. Section 39 of the Act which is
substantially the same as Section 36 of the Special Marriage Act makes a
provision in this behalf. Also, under Section 36 of Divorce Act, 1869 which
applies to persons professing Christain religion, a wife is entitled to expenses of
proceeding under the Act and maintenance while the suit is pending.
All these provisions specify that the application for interim maintenance has to
be disposed of within sixty days of service of notice on the respondent.
Permanent Maintenance
It is the maintenance granted permanently after the disposal of the proceeding
for divorce or separation.
Hindu Marriage Act, 1955, Section 25 – Applicant, either wife or husband is
entitled to receive from the spouse for his/her maintenance and support a gross
sum or monthly or periodical sum for a term not exceeding the applicant’s
lifetime or until he/she remarries or remains chaste.
Hindu Adoption and Maintenance Act, 1956, Section 18 – Hindu wife is
entitled to be maintained by her husband during her lifetime. Wife also has a
right to separate residence and maintenance if any of the condition in Section
18(2) [desertion, cruelty, leprosy, any other wife/ concubine living in the same
house, conversion of religion or any other reasonable cause] is fulfilled until she
remains chaste or does not convert to other religion. It may also be noted
that Section 19 of this Act makes a provision for a widowed wife to be
maintained by her father-in-law.
Criminal Procedure Code, 1973, Section 125 – This section provides for
maintenance not only to the wife but also to child and parents. Court may order
a husband who has sufficient means but neglects or refuses to maintain his wife
who is unable to maintain herself to provide monthly maintenance to her.
However, wife shall not be entitled to receive maintenance if she is living in
adultery, or refuses to live with husband without any sufficient reasons, or
living separately with mutual consent.
Muslim Women (Protection of Rights on Divorce) Act, 1986, Section 3 – A
divorced Muslim woman is entitled to a reasonable and fair provision and
maintenance to be paid to her within the iddat period by her former husband; an
amount equal to the sum of mahr or dower agreed to be paid to her at the time
of her marriage or at any time thereafter according to Muslim law; and all the
properties given to her before or at the time of marriage or after her marriage by
her relatives or friends or the husband or any relatives of the husband or his
friends. If husband fails to provide her the above mentioned then Magistrate can
order for payment of the same.
Parsi Marriage and Divorce Act, 1936, Section 40 – A Parsi husband or wife
may apply to the Court under this section whereupon the Court at the time of
passing any decree under the Act or anytime subsequent thereto order that the
defendant pay the plaintiff a gross or monthly sum for his/her maintenance and
support. Such order may also be modified subsequently if the Court is satisfied
that change in circumstances warrants so. The order may also be rescinded or
modified if the party in whose favour the order was made remarries; or in case
of wife, she does not remain chaste; or in case of the husband, he has sexual
intercourse with any woman outside the wedlock.
Special Marriage Act, 1954, Section 37 – This section is also similar to Section
40 of the Parsi Marriage and Divorce Act. The difference being that under this
section maintenance may be claimed only by a wife against the husband from a
court exercising jurisdiction under Chapters V or VI of the Act. An order made
under this section may be modified or rescinded by the district court at the
instance of the husband if it is shown that the wife has remarried or is not
leading a chaste life.
Divorce Act, 1869, Section 37 – This section empowers the district court to
order the husband to secure a reasonable gross sum to the wife or annual sum
not exceeding her lifetime when a decree of dissolution or decree or judicial
separation is obtained by the wife. While passing such order, the court may
have regard to fortune of the wife, ability of the husband and conduct of the
parties. The court may also order the husband to pay such monthly or weekly
sum to the wife for her maintenance as the court may think reasonable. If
subsequently, the husband becomes unable to make such payments, the court
may discharge or modify such order.

C) Latest Position
The Law pertaining to maintenance is a very essential piece of legislation
protecting the rights of women and advancing justice to estranged wives. The
right to claim maintenance can particularly be found in Section 125 of Code of
Criminal Procedure, which also confers the right to claim maintenance on
parents and minor children. Apart from law enumerated under Section 125
CrPC, an aggrieved wife can also claim maintenance under the relevant
provisions of the Hindu Marriage Act, 1955 and the Protection of Women
against Domestic Violence Act, 2005.

In this article we have demonstrated some cases which aid in understanding the
law and its interpretation by the Indian Judiciary.

Maintenance Case- Strict Proof of Marriage not required u/Section 125 CrPC-

Supreme Court

Case name: Kamala and ors. v. M.R. Mohan Kumar

The Supreme Court in this recent 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 other
observations made by the Apex Court in the case are as under:

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.

Merely because the wife is capable of earning it is not a reason to reduce the

maintenance awarded to her

Case name: Shailja & Anr. v. Khobanna

In this case, the Supreme Court made a remarkable observation by stating

that merely because the wife is capable of earning it is not a reason to reduce the
maintenance awarded to her and said that whether a wife is capable of earning
and is actually earning are two different factors.

What should be the Quantum of Maintenance?

The Supreme Court answered this question in the case of Kalyan Dey
Chowdhury v. Rita Dey Chowdhury Nee Nandy by holding that 25% of the
husband’s net salary would be just and proper as maintenance to wife.

The Supreme Court while deciding the review petition made reference to the
case of Dr. Kulbhushan v. Raj Kumari & Anr.[3], wherein it was held that 25%
of the husband’s net salary would be just and proper to be awarded as
maintenance to the respondent-wife.

Other remarkable observations made by the Court in the case were:

 That the amount of permanent alimony awarded to the wife must be

befitting the status of the parties and the capacity of the spouse to pay
maintenance.
  That maintenance is always dependant on the factual situation of the
case and the Court would be justified in moulding the claim for
maintenance passed on various factors.

A similar observation has been recently made by the High Court of Kerala in
the case of Alphonsa Joseph v. Anand Joseph, wherein the Court remarked
that Maintenance to Wife can’t be rejected on ground that she is earningThe
High Court thus, while making reference to Apex Court’s judgment in Sunita
Kachwaha and ors. V. Anil Kachwaha, noted that even if the wife was earning
some amount that may not be a reason to reject her application for maintenance
outright.It was also stated by the High Court that as held by the Apex Court in a
catena of decisions, the concept of sustenance does not necessarily mean to live
the life in penury and roam around for basic maintenance. The wife is entitled in
law to lead a life in the same manner as she would have lived in the house of her
husband with respect and dignity.That the husband is not entitled to contend
that he is not prepared to pay any maintenance and the courts are not expected
to accept the blatant refusal of the husband with folded hands. If the Family
Court decides to deny interim maintenance to the wife or pay a lesser amount
than claimed to the minor child, it can only be on legally permissible reasons
and not on the strength of a memo filed by the husband.

CHAPTER -2 RESEARCH METHODOLGY

A) Title of the Study

C) Rational of the Study 1) Its provisions apply and are enforceable whatever
may be the personal law by which the persons concerned are governed.
2) 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 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 Chapter IX is a self -contained one and the relief given under it is essentially of a
civil nature. The findings of a Magistrate under this Chapter are not final and the
parties can legitimately agitate their rights in a Civil Court.9
This remedy is open to a wife or child either legitimate or illegitimate. The mere
existence of a decree of a Civil Court awarding maintenance to a wife does not oust
the jurisdiction of a Magistrate to make an order under this section on the application
of the wife. The Magistrate, however, in such a case, should make it clear in his order
that anything paid under the decree of the Civil Court would be taken into account
against anything which he may order to be paid.10 However it is noted that an
application of the wife under section 125 was dismissed because the civil court had
held under the matrimonial law that the wife was not entitled to maintenance.11

Right to seek maintenance under s. 125 Cr. P.C. is an independent right and the
pendency of the proceeding under the Hindu Marriage Act in the Family Court is no
bar for its maintainability outside the jurisdiction of Family Court.12

This section does not cease to operate when the relationship of marriage or paternity
is denied. The magistrate can grant maintenance to the wife if the husband challenges
the validity of the marriage. The husband may go to the Civil Court for establishing
 invalidity of the marriage, as the Magistrate is not competent to decide on such
issue.13

An order for maintenance passed under this section in favour of a wife will not cease
to be operative merely because there was subsequent resumption of cohabitation
between husband and wife14 though it would remain under suspension during that
period. It would revive when the wife again lives separately from her husband unless
and until it is cancelled by the competent authority in a proper proceeding under sub-
s.
(5) of this section.15
1.3Maintenance of Wife and Children under section 125 CrPC

Section 125 of CrPC provides for maintenance of wives, children and parents. It states as
under:
(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 rate16 [***] 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.

Provided17 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 for 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, 1975
(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 for
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 19 allowance for the maintenance or the
interim maintenance and expenses of proceeding, as the case 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 dare 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, ifhe 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 from her husband under this
section she is living in adultery, or if, without any sufficient reason, she refuses to live
with her, husband, or ifthey are living separately by mutual consent.

(5)On proof that any wife in whose favour an order has been made under this section
is living in adultery, or that without sufficient reason she refuses to, live with her,
husband, or that they are living separately by mutual consent, the Magistrate shall
cancel the order.

1.3.1.Legislative Changes-Code of Criminal Procedure (Amendment) Act, 2001

[w.ef. 24-9-2001]-Interim maintenance allowance.-Statement of Objects appended to

Bill stated thus: It has been observed that an applicant, after filing application in a
Court under Section 125 of the Code of Criminal Procedure, 1973, has to wait for
several years for getting relief from the Court. It is, therefore, felt that express
provisions should be made in the said Code for interim maintenance allowance to the
aggrieved person under said Section 125 ofthe Code. Accordingly, it is proposed that
during the pendency of the proceedings, the Magistrate may order payment of interim
maintenance allowance and such expenses of the proceedings as the Magistrate
considers reasonable, to the aggrieved person. It is also proposed that this order be
made ordinarily within sixty days from the date of the service of the notice. (Para,
Statement of Objects and Reasons to the Bill) (w.e.f. 24-9-2001).
Ceiling of maintenance allowance abolished.-Statement of Objects appended to Bill
stated thus: The ceiling of rupees five hundred per month for maintenance allowance
was prescribed in the year 1955 in Section 488 of the Code of Criminal Procedure,
1908. A ceiling of rupees five hundred was prescribed in Section 125 of
24

the Code of Criminal Procedure, 1973 on the lines of Section 488 of the Code of
Criminal Procedure, 1908 which has since been repealed. In view of the cost of living
index centrally rising, retention of a maximum ceiling is not justified. If a ceiling is
prescribed and retained, it would require periodic revision taking into account the
inflation and rise in the cost of living as well as amendment of provisions of the Act
from time to time. This would necessarily be time consuming. Accordingly, it is also
proposed to amend Section 125 and make consequential changes in Section 127 ofthe
Code of Criminal Procedure to remove the ceiling of maintenance allowance. (Para,
Statement of Objects and Reasons to the Bill) (w.e.f. 24-9-2001).

Under the old CrPC 1898 by the Criminal Law Amendment Act 26 of 1955 the limit
of maintenance was enhanced from the then existing Rs.l 001- to Rs.5001- per month.

By the Code of Criminal Procedure (Amendment) Act No. 50 of2001 the upper limit
of maintenance of Rs. 500/- per month in Chapter IX of the Code has been abolished.
The new amendment also formally introduces the right to, and enforcement of, interim
maintenance that was earlier only by virtue of the Court made law. The expenses of
proceedings can also be claimed by the applicant under the amended provisions of
Chapter IX of the Code. There is further provision that an application for interim
maintenance and expenses of proceeding shall be disposed of, preferably, within sixty
days from the service ofnotice of such application to the respondent.

1.3.2.Applicability to foreigners.-A wife can maintain an application in India as the

provisions of this section do not exclude a foreigner from its purview and are
applicable to all the persons irrespective of citizenship and personal law of the husband.20

1.3.3. Overriding effect.-Additional rights and benefits conferred under this section prevail

over the one conferred under personal law of the parties. The section applies to all persons
irrespective of personal law of the parties.22
1.3.4.Personal law unaffected.- There is no inconsistency between this section and the
Hindu Adoptions and Maintenance Act, 1956. The scope of the two laws is different. This
section provides a summary remedy and is applicable to all persons. It has no relationship to
the personal law of the parties. It has been recognised that the
 25

Court must administer the personal law for Muslims on the basis of the ancient textual
authorities whose validity as of law can hardly be questioned.23 An order of maintenance
cannot be struck down on the ground of its inconsistency with personal law of the parties.24
This provision is subject to the Mohammadan Law on divorce.25 This provision is not
opposed to personal law of Mohammedans26. Personal law of the party cannot be altogether
excluded from consideration27. This section overrides personal law of Muslims and hence a
divorced Muslim woman is a "wife" within the meaning of this provision.

1.3.5.Object and Scope of the section.-

The proceedings under this section are not punitive. The object is not to punish a
person for neglect to maintain those whom he is bound to maintain. The section
provides only a speedy remedy by a summary procedure to enforce liability in order
to avoid vagrancy.29 The provisions of Chapter IX Cr.P.C. should be liberally
construed as the primary object is to give social justice to women and children and to
prevent destitution distribution and vagrancy by compelling those who can support
those who are unable to support themselves. These provisions provide a speedy
remedy to those who are in distress. They are intended to achieve this social
purpose.30 This section 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. Its provisions apply and are enforceable whatever may be the personal
law by which the persons concerned are governed. After marriage it is the duty of the
husband to provide shelter and maintenance to the wife. If he neglects, the wife is
legally entitled to have it from the Court by petition under this section.The object of
this section is to avoid vagrancy by providing that a Magistrate may up to a limited
extent to see that a wife and children are maintained by a husband or father able to
maintain them.33

It is not intended to provide for a full and final determination of the status and
personal rights of the parties. The proceedings are simple in nature providing a simple
and speedy remedy where the wife proves performance of certain marriage.
This is a secular provision as it does not make any distinction between persons
belonging to different religions or castes.
Where the wife proves performance of certain marriage ceremonies, it is immaterial
whether the same satisfies all the requirements of a valid marriage. It is for the
husband to have gone to a competent Civil Court and get his marriage annulled. In the
absence of a declaration by a competent Civil Court about the legality or otherwise
ofthe marriage the Court has to presume that the said marriage was legal.34

The ambit of section 125 CrPC is very wide perhaps because it is a secular provision
and the legislature has enacted the provision with the sole object to eradicate vagrancy
and misery and is in complete concurrence with Article 21 of the Constitution of
India, which includes the right of every person to live a life of dignity.

The rights of a destitute wife or a minor claiming maintenance in this chapter and the
remedies provided are essentially civil right.

Even if a person changes his religion and converts to Islam, he is not relieved of his
obligation to maintain his wife and children. The right of a wife and of children to be
maintained by the husband and by the actual father is a statutory right, and the duty is
created by express enactment independent of the personal law. Hence, a mutta
(temporary) wife can claim maintenance from her husband. Illegitimate children bom
of an adulterous intercourse by a married woman can recover maintenance from the
putative father. The wife is not bound to accept the offer by the husband to provide
her with a separate residence though if she leaves her husband's roof without
justifying the cause she is entitled to no relief.
27

In a significant ruling given by a division bench of Supreme Court comprising Justice

K.T. Thomas and Justice M.B. Shah, while dismissing appeals by a husband against
the grant of maintenance to his wife and daughter and imposing cost of Rs 5,000 on
the husband held that the provisions under Section 125 of the Criminal Procedure
Code (Cr.P.C.), meant for the grant of maintenance, are not to be utilised for defeating
the rights conferred by the legislature on destitute women, children or parents, who
are victims of social environment.

In this case, a Judicial magistrate at Nayagarh in Orissa, allowed the application filed
by Bidyut Prava Dixit (the respondent-wife) under section 125 Cr.P.C and granted a
monthly maintenance of Rs 400 to her and Rs 200 to her daughter with effect from
March 15, 1989. The order of the magistrate was challenged by the husband, Dwarika
Prasad Satpathy, in a criminal revision before a sessions judge at Puri. The sessions
judge by his order dated April 19, 1994 partly allowed the revision application ofthe
husband and set aside the maintenance granted to the wife. However, the judge
maintained the grant of Rs 200 per month to the minor daughter till she attained
majority subject to future enhancement. The appellant then approached the Orissa
High Court against the judgment of the session’s judge. The wife also filed a revision.
The High Court dismissed the revision filed by the husband and allowed that ofthe
wife. The Court held that the parties were residents of Kantilo village and at the
relevant time the appellant was a bachelor and working as a junior employment
officer at Nayagarh. The appellant was a friend of the elder brother of the respondent
and frequently visited their house. The appellant fell in love with the respondent. It
also came on record that he was proposing a premarital sexual relationship with the
respondent, which was persistently refused by her. The appellant then took a vow in a
temple to marry her and thereby won her faith. The respondent became pregnant and
insisted on immediate marriage, which the appellant refused on some pretext or the
other. The respondent took various actions including writing to various authorities
including the then Chief Minister. Ultimately, when she went on a hunger-strike in
front of the office of the appellant, their marriage was solemnised with the
intervention of the sub-divisional officer and other persons in the temple. Even after
marriage, the appellant forced his wife to stay with her parents on the ground that his
father might not accept her as a bride. At that stage she was in an advanced stage of
pregnancy. Within three-four days there after she gave birth to a
28

girl, who had been made the respondent no. 2 in the case. The parties continued to
live separately as before. In proceedings under section 125 Cr. P.C., the appellant
denied pre-marital sexual relations with the respondent. He also asserted that he was
forced to undergo some sort of marriage with the respondent. The trial magistrate
found the marriage legal and granted the relief. But the Sessions judge held the
marriage as illegal and did not give the relief to the wife. He, however, accepted the
plea of the wife that the child was bom because of pre-marital relations and confirmed
the grant of maintenance to the child. The Supreme Court in its judgment held the
marriage as legal. The court also held that the child was bom out of the wedlock,
when the appellant, who had disowned the child, refused to undergo a DNA test. The
Apex Court held that "In our view, the validity of the marriage for the purpose of
summary proceedings under section 125 Cr.P.C. is to be determined on the basis of
the evidence brought on record by the parties. The standard of proof of marriage in
such proceedings is not as strict as is required in a trial of offence of bigamy under
section 494 of the Indian penal code. It was held that once it was admitted that the
marriage procedure was followed then it was not necessary to further probe into
whether the procedure was complete as per the Hindu rites in the proceedings under
section 125 Cr.P.C.

1.3.6. Procedure and Proceedings.- The procedure laid down in this Chapter is enacted as a
measure of social justice has, therefore, to be essentially different from the procedure laid
down in the subsequent Chapters of the Code for a punitive trial. The jurisdiction of a
Magistrate is not strictly a Criminal Jurisdiction.35

A case under S. 125, CrPC is not barred under Family Courts Act. The proceedings
for maintenance are in the nature of civil proceedings though the criminal
Process is applied for the purpose of summary and speedy disposal of such matter in
the interest of society. An order made under S. 125 is tentative and is subject to the
final determination of rights in civil Court.38 Section 112 of the Evidence Act have
no application to a proceedings under Chapter IX of the Code of Criminal Procedure,
Which is summary and provisional in nature and does not decide finally the respective
rights of the parties.39 A wife or a child has two remedies available for securing
maintenance. The first is a suit in a Civil Court, in which a decree may be obtained for
an amount commensurate with the status or means of the party liable. Even arrears of
past maintenance can be recovered. The maintenance can be made a charge on the
property. The decree can be enforced against his property in case of his death. The
second remedy is a proceeding under this section. It is a cumulative remedy.40 this
remedy is open to a wife or child either legitimate or illegitimate. The mere existence
of a decree of a Civil Court awarding maintenance to a wife does not oust the
jurisdiction of a Magistrate to make an order under this section on the application of
the wife. The Magistrate, however, in such a case, should make it clear in his order
that anything paid under the decree of the Civil Court would be taken into account
against anything which he may order to be paid.41

In proceedings under S. 125 CrPC, the Magistrate cannot decide the validity of
marriage between the parties.42. The findings of the Civil Court are binding on the
Magistrate in some respects. Where an application of a woman under S. 9 of the
Hindu Marriage Act, 1956, for restitution of conjugal rights had been dismissed on
the ground that it was she who had deserted her husband, that finding was binding on
a ,Criminal Court which dealt with her application under S. 125 for maintenance on
the ground of desertion by husband.43 Civil Courts' decree that the petitioner is not
the legally wedded wife ofthe respondent unless it is a nullity or suffers from
suppression of facts binds the petitioner and the petitioner is not entitled to
maintenance.44.

It is settled by various judicial pronouncements that interim maintenance pending the

final disposal of an application under section 125 can be awarded in case the court is
satisfied that there are sufficient reasons to do so. Interim maintenance may be
granted even on filing of affidavits.

1.37."Any person".-The words "any person" include a Hindu not divided from his

father.45 This section does not contemplate proceedings against a whole family
merely because the husband against whom the proceedings are taken is a member of a
joint Hindu family. Though the Magistrate may consider what is the property of the
family, in considering what sum he should award to the wife for maintenance , the
order should be passed against the husband himself and not against the joint
family"46
An order made under this section can be enforced against a person even if he resides
outside the jurisdiction of the Court.'"47 Application by wife and child under
this section cannot be defeated because the opposite party is domiciled in the
USA.9548

The words "any person" include only father or son or husband but does not include a
daughter or mother or wife."49
"Any person" in S. 125 Cr.P.C., includes mother also.50

1.3.8."Sufficient means".-An order under this section can be passed only if a person

'having sufficient means' neglects to maintain his wife or child. But the expression
'means' occurring in this section does not signify only visible means such as real
property or definite employment. If a man is healthy and able-bodied he must be held
to possess the means to support his wife, children and parents and he cannot be
relieved of his obligation on the ground that he is a mere boy and is unemployed. The
words 'sufficient means' should not be confined to the actual pecuniary resources but
should have reference to the earning capacity."51 "Means" ofthe husband does not

mean the tangible property or sources of income of the husband but also his capacity,
potentiality and status.52 The maintenance has to be determined in the light of the
standard of living of the person concerned, the earnings of the husband, his other
financial commitments etc.53 Though insolvency of the husband is not conclusive to
such determination.
But at the same time his capacity to work and earn is material. The husband cannot
refuse to maintain his wife on the ground that he has no sufficient means.54 2.3.9.
Able bodied person:

However, it is submitted that the spirit of the law enshrined does not expect a husband
to starve himself in order to maintain his wife. It cannot be said that merely because a
person is able bodied and does not suffer from any physical or mental disability, he is
always able to earn. Ability to earn requires something more than a fit state of mind or
body. It requires opportunity to earn, education or experience and many a time
finance, push and pull. If these are not available to an able-bodied person, then
howsoever capable physically and mentally he may be, he should be considered as a
person who is not able to earn or maintain himself. However there is a divergent
opinion on this point. In Ali Hossain vs. Baby Farida Khatoon55 it has been held that
when the husband is able bodied person, it has to be inferred that he has the means to
pay the maintenance. In several other cases it has been held that even if the husband
may be insolvent, professional beggar, minor or a monk but he must support his wife
so long he is able bodied and can eke out his livelihood.
Capability of the husband to pay must be proved to fix the quantum of maintenance.

The maintenance allowable to the wife must have relevance to the means of the
husband. The Magistrate must discuss the evidence and determine the means of the
husband for fixing the amount of maintenance; means not only mean the tangible
property or sources of income of the husband but also means his capacity, potential
and status.

1.3.10."Neglects or refuses to maintain".-A neglect or refusal to maintain may be by

words or by conduct. It may be express or implied.56 Neglect or refusal may mean
something more than mere failure or omission. But where there is a duty to maintain,
such as, in the case of a child who has no will or volition of its own, mere failure or
32

omission may amount to neglect or refusal"57 Once it is proved that a husband or a

father has refused or neglected to maintain his wife or children, an offer by him to
maintain them in the future is not sufficient in itself, to debar a Magistrate from
making an order for their maintenance"58 or an offer to maintain them in a separate
house.'59 The right of a wife to maintenance is an incidence of her status. The phrase
"neglects or refuses to maintain" is to be construed liberally. No straight jacket
formula can be laid down to answer the question whether the wife has been able to
establish that her husband has neglected or refused to maintain her. It would depend
on the facts and circumstances of the case-in question.60 Where the husband turned
out the petitioner wife from his house when she was pregnant and since then she is
living with her parents, it is proof of neglect to maintain on the part of the husband
and the wife would be entitled to maintenance .61 When neglect or refusal has not been
.proved, omission by wife to ask for maintenance in divorce proceedings and
subsequently by interlocutory application would not entitle her to maintenance after
divorce.62

Where the husband has obtained a decree for divorce on the ground of desertion, but
the wife in her application for maintenance has proved that the husband has ill-
treated and deserted her, she is entitled to maintenance.63
1.3.11.'Refuse' means a failure to maintain or a denial of obligation to maintain after
demand. Neglect, on the other hand, means a default or omission, in the absence of a
demand. Neglect or refusal may be implied from conduct of a party and there need not
be a formal refusal.64 Where the husband admitted that his wife was living separately
with her parents and he had not made any genuine effort to bring her back, the wife
was allowed maintenance allowance.65 In a situation in which it is no longer possible
for the wife to continue to live in her husband's house with dignity, prestige and self
respect which may also arise in different circumstances, like physical assault or
torture to the wife, creating a situation in the family which makes it unbearable for her

to live with dignity; husband's refusal to discharge his marital obligations; lack of a
feeling of warmth towards the wife from the husband and the members of his family.
Even a long separation between the spouses, without any acceptable material to show
any genuine effort made on behalf of the husband to persuade his wife to live with
him, may be sufficient to draw an inference of neglect and refusal to maintain.66 A
husband who is paying a paltry amount of Rs. 30 per month to his wife for several
years and pronouncing divorce on the wife filing maintenance application wholly
supports the case of wife about neglect and refusal.67 Where the husband is living
with another woman, there is sufficient cause for the wife to live separately, it would
be construed as neglect, failure on the part of the husband to maintain his wife, the
wife therefore would be entitled to claim maintenance under section 125 CrPC.

1.3.12.Neglects to maintain child.-A child has no volition or will of his own. Mere

failure or omission to maintain may amount to neglect to maintain. When it is the
specific stand of the husband that he had never neglected or refused to maintain the
child and this aspect has not been considered, this matter should be re-adjudicated.68

The expression willful negligence is a question of law though it has to be decided on

given facts. Willful means designedly, deliberately of set purpose, that is to say the
mind and the overt action moving together.1,69
1.3.13.Proof of neglect or refusal.-Even a long separation between the spouses
without acceptable material to show any genuine effort made on behalf ofthe husband
to persuade his wife to live with him, may be sufficient to draw an inference of
neglect and refusal to maintain. Therefore, it will neither be legal nor proper to
approach a case with a fixed idea to find out whether the allegation of assault or
physical torture has been successfully established by the petitioner-wife. This may be
established by direct proof or by drawing reasonable inference from the circumstances
established by evidence.70 .Neglect or refusal to maintain can be inferred from
conduct. For getting an order of maintenance one should show that the person bound
to maintain neglected or refused to maintain.72 Apart from showing that the husband
has sufficient means it must further be shown that he neglects or refuses to maintain
his wife. If a person is willing to maintain his wife in accordance with his civil
obligation, there is neither neglect nor refusal.73 Where the husband takes the defence
that the wife is not entitled to maintenance because of decree and earlier consent
decree, a case of neglect on husband's, part is proved and the wife is entitled to
maintenance74 . A husband who is impotent cannot be deemed to have neglected or
refused to maintain his wife. Inability of a husband to satisfy the physical desire of his
wife though might be a ground to obtain divorce, does not amount to neglect.75 Offer
of a Muslim husband, who has taken a second wife, to maintain the first wife on
condition that she lives with him cannot be considered to be a bona fide offer.In such
a case the husband will be considered to have neglected or refused to maintain the first
wife.76
1.3.14.Private agreement.- The existence of a private agreement between the husband and
the wife does not mean that if the husband fails to pay the maintenance allowance, there is no
refusal or atleast neglect to maintain his wife.77
In Ranjit Kaur v. Pavittar Singh , a question came up for consideration "whether a wife who
has voluntarily surrendered her right to maintenance in divorce proceedings, would not be
entitled to claim subsequently maintenance allowance under Section 125 of the Code of
Criminal Procedure". The said question was answered by the Division Bench against the
husband and it was held that such an agreement in addition to its being opposed to public
policy would not debar the wife from claiming maintenance under Section 125 Cr.P.C. if she
is found to be unable to maintain herself.

1.3.15.Justified grounds of wife living separately - Through study of various judgments it

is established that wife would be justified in refusing to live with her husband and claim for
maintenance under this section in the following circumstances:

a) When husband is in the habit of ill-treating wife may be under the influence of alcohol.
Oral evidence of ill-treatment cannot be disbelieved

in the absence of complaint to police and medical examination, while there is nothing on
record to indicate that the testimony of wife is unbelievable. The mere fact that the non-
applicant was a quarrelsome and an obstinate type' of woman, is no justification for ill-
treatment to her. The ill treatment cannot be substantiated on the basis of general allegations
in the absence of any details thereof

b)The husband neglect and refuses to maintain his wife and child .

c)The husband is keeping a mistress, the wife would be entitled to maintenance from her
husband.
d)During the lifetime of the wife, if husband takes a second wife, it amounts to cruelty, the
wife is entitled to maintenance under S. 125,
e) Cruelty by husband. Deliberate and false imputation with intention to humiliate also
amounts to cruelty.
f) Cruelty by mother in law
g) Demand of dowry

h)Injury. The definition of injury in this section is not as rendered in section 44IPC. The
words physical or mental abnormality will prima facie take in congenital defects while injury
 leading to inability to maintain itself can have reference, be at any point of time after
attaining of majority.
i) Impotency of husband: Impotency of husband would amount to both

. Legal/mental cruelty, wife is entitled to live separately and claim maintenance from husband
j) Desertion: .-Where the wife had gone to her mother and stayed there for several months to
attend her ailing mother, that does not amount to desertion and if the husband marries with
second wife, the first wife is entitled to maintenance.79

1.3.16."Unable to maintain herself.-Inability to maintain herself is the pre condition for

grant of maintenance.80 The income of the wife's parents would not be taken into
consideration, her own individual income would be relevant.81 By the phrase "unable to
maintain herself, it is not meant that she should be absolute destitute and should be on the
street, should beg and be in tattered clothes.82 The petitioner must, positively aver in her
petition, that she is unable to maintain herself in addition to the facts that her husband has
sufficient means to maintain her and that he has neglected to maintain her."83 The statement
of the wife that she has been able to survive with great difficulty is sufficient compliance of
Section 125 CrPC.84 Failure to state in the application that she is unable to maintain herself
is not fatal to the claimant.85 The assertion of the wife that she is not doing anything is
sufficient to attract the provisions of this section. The expression "unable to maintain herself
would mean "means" available to the deserted wife. Earning capacity of a wife is not a
criterion to refuse maintenance. . The expression “ unable to maintain herself’ merely
connotes that the wife has no other means or source to maintain herself. The fact that the
father of wife is in possession of land in which she has a share is not a criterion to decline
maintenance to wife.

Wife being educated is also not a ground to refuse, maintenance to her. Even if the wife is
gainfully employed that would not be a criterion to refuse maintenance to her, if she is able to
prove that despite being employed she is unable to maintain herself.

1.3.17 Wife’s Inability

The applicant’s inability to maintain herself is the since qua non for the grant of
maintenance. A person who has means or is able to maintain herself has no right to
get maintenance from the other. Moreover, the words “unable to maintain” in S. 125
have nothing to do with the potential earning capacity of the wife. The Allahabad
 High Court in Shravan Kumar v. Usha Devi86, held that the concept of able bodied
person cannot be extended to the wife because it will defeat the very object of the
legislature and it will invoke rowing and endless enquiry about such ability, capacity,
avenues and opportunity which the law on his point does not intend.

In Mohinder Singh v. Joginder Kaur87 and Aijaz Ahmad v. Shahjehan Begum88 the
applicant wives had sought maintenance from their husbands without specifically
stating that they had no means of supporting themselves. In evidence, however, it was
brought out that in both the cases the wives were unable to maintain themselves and
so the magistrate granted their claims. The husband then invoked the inherent powers
of the High Court under Sec. 482, saying that the pleadings were defective and so the
orders of the lower courts should be quashed. The high Court, however, refused to
interfere and held that it was in evidence that the wives had no means and so the
applications were rightly decided.

A claim for maintenance under the Code can succeed only if the application is able to
establish her inability to maintain herself. However, a technical omission of such a
pleas in the application that the application does not have sufficient means of her own
to maintain herself. In Mohammad v. Ayisha89 the Kerala High Court held that a
mere omission to take plea of neglect or refusal to maintain the wife by the husband
cannot defeat a wife’s claim. Ability to maintain cannot be judged in the light of
capacity to make a living. A husband cannot escape his ability by pleading that the
wife is an educated person and can get a job and support herself.90

In Rewati Bai v. Jageshwar91, ordering maintenance of Rs. 350/- p.m. to the wife, the
M.P. High Court observed :
The only fact that she was compelled to work as labourer to survive was by itself not
sufficient to establish that the applicant was able to maintain herself.
Hence, the court held that the inability of the wife to maintain herself is a condition
precedent to granting maintenance to her under S.125. The High Courts of Karnataka
and Kerala have taken into consideration her potential capacity, while determining her
inability to maintain herself.
1.3.18 Husband’s In-Ability

When the issue of the means of the husband (or any other person called upon to pay)
is to be considered, the court will not look only at the visible means and properties
possessed by the husband but also his ability and capacity to earn. In Basanta Kumar
Mohanty v. Sarat Kumar Mohanty92, the High Court held that if a man is healthy
and able-bodied, he must be held to be possessed of means to support his wife. The
burden then is on him to show cogent ground for holding that he is unable to earn for
reasons beyond his control. Here the husband led no such evidence, hence, a decree
for Rs. 75/- p.m. was made in favour of the wife.

The duty to maintain a wife flows from the status of matrimony. An able bodied man
is generally presumed to have the capacity to earn and maintain his wife93. However,
it was held to the contrary by the Calcutta High Court in Dasarathi Ghosh v.
Anuradha Ghosh94. The court held that from mere fact that the husband had 3 bighas
of agricultural land or that he wore a wrist watch, a gold ring and clothes worth about
Rs.150, it cannot be said that he had sufficient means. Although the burden ofproofto
establish a case under this section is on the claimant, it does not have to be proved
beyond reasonable doubt since proceeding under S. 125 is not a prosecution of a
criminal charge nor is the respondent an accused. In Krishna Bahadur Pradhan
v.Tikamaya Newar95, the High Court held that presumption ought to be that a
prudent husband and father had means to maintain the wife and children.
In Chandra Bhan v Sudha Rani96, the Court held that mere filing of the suit for
declaring the petitioner to be an insolvent is not a sufficient ground available to
petitioner for not discharging his obligation to maintain his wife and daughter. He is
under obligation to pay the maintenance allowance as awarded by the Courts below. If
a person is declared insolvent, even then he is under obligation to maintain his wife
and daughter, ifhe is physically fit to do the labour.

The husband cannot get away by pleading that her wife had once taken up a job
(which was at a very meagre salary) and then resigned and she being highly educated
was capable of maintaining herself97. An applicant for maintenance under S.

125has to prove that there was neglect or failure to maintain on the part of respondent.
Unless this is established, no claim for maintenance will lie In J. Sampath Kumar v.
Subashini98, the wife had not asked for any maintenance pendete lite during the
course
of matrimonial proceedings, thus, there was no neglect or refusal to maintain by the
husband. An able-bodied person is presumed to have capacity to work and earn. In an
important judgement99 the M.P. High Court made a reference to various judgements
of different High Courts100 and held that a person cannot avoid his liability u/s
125(1) CrPC, merely because he had no tangible real property or income, but if
otherwise able bodied and healthy and has capacity to earn. The presumption should
be that such an able-bodied healthy person is possessed of sufficient means and it is
for him to show that by accident, disease or the condition of labour market or
otherwise, he is not capable of earning anything.101

Accordingly, the order of imprisonment made by the magistrate due to non payment
of the maintenance allowance was upheld and the husband’s petition was dismissed.

1.3.19. "Wife".-Wife means only a legitimate wife,102 only legally married wife

and, therefore, a marriage proved illegal, cannot give a wife any right to get
maintenance103. The section applies only to an abandoned Wife and not to an
abandoned mistress.104 The Explanation to sub-sec. (1) makes it clear that a woman
who has been divorced by, or has obtained divorce from, her husband is still to be
considered as wife so long as she remains unmarried. She must be unable to maintain
herself. If she can maintain herself with her own income, whether such income is
fabulous or moderate, then the Magistrate may not grant her anything as the power to
grant maintenance is discretionary.105

In Des Raj v. Sita Devi106, the court observed that though under the law, a divorced
wife can claim maintenance from her son, but she has a prior right to claim the
maintenance from her husband /ex- husband under Section 125 Cr.P.C.
In this case husband and wife were divorced. Wife got lump sum amount of Rs.
15,000/- at time of divorce . The Court held that this does not take away the statutory
right ofwife to claim maintenance under Section 125 Cr.P.C.
The Court observed that undisputedly, the respondent-wife was is an old illiterate and
rustic woman. She was suffering from old age ailment. As per the findings recorded
by both the Courts below, she had no source of income and was

unable to maintain herself. Though under the law, she can claim the maintenance from
her son, but she has a prior right to claim the maintenance from her husband /ex-
husband under Section 125 Cr.P.C.
The Court observed that grant of maintenance under Section 125 Cr.P.C. is a measure
of social justice and specially enacted to protect women and children who are not able
to maintain themselves. This statutory right of wife to be maintained by her
husband /ex- husband when she is not capable to maintain herself, cannot be taken
away by pressing into service any agreement between them which nullifies the said
right.

Therefore despite the dissolution of the marriage between the parties having taken
place 30 years ago and the permanent alimony paid to the respondent-wife, the Court
held that it cannot be said that the wife cannot claim maintenance under Section
125Cr.P.C wherein it was recorded that husband had sufficient source of income.The
Court observed that keeping in view the prices of the essential commodities in these
days and the cost of medicines, the amount of maintenance of Rs. 2000/- per month
awarded to the respondent cannot be said to be excessive or arbitrary.
Even if a woman married without knowing about the previous marriage of the
husband, the woman does not acquire legal status of wife and is not entitled to claim
maintenance. 107
"Wife" in S. 125 means a legally wedded wife, does not include a wife whose
marriage is void, being in the life time of the first wife of the husband. Such a wife is
not entitled to maintenance. 10ft
"Wife" includes a woman who obtains divorce by mutual consent.

A woman cannot claim maintenance unless there is a valid marriage between the
parties.109 The woman not having the legal status of a wife is thus brought within the
inclusive definition of the term "wife" consistent with the objective.110 The marriage
must have been solomnised under the recognized customs/rites. Mere
xecutants would be living as husband and wife does not confer the status of husband
and wife, and the wife is not entitled to maintenance.111
The standard of proof that the parties to the proceedings are validly married is not so
high as in a prosecution under S. 494, 495, 497 or 498 of the Penal 'Code."112 But the
burden of proof is prima facie on the applicant. Whether the petitioner wife is the
legally wedded wife of the respondent, and whether she is entitled to maintenance or
not are the questions that are to be decided in the proceedings under S. 125 Cr.P.C.
after considering the evidence let in by both the parties."114
1.3.20.Second wife.-A second wife whose marriage is void on account of the survival
of the first marriage, is not a legally wedded wife and is, therefore, not .entitled to
maintenance under this Provision.115 The two decisions of the Apex
Court with regard to this provision are Yamunabai’s case and in Savitaben Sonabhai
Bhatia V/S. State of Gujarat & Ors.116

In Yamunabai’s case, after holding that the marriages covered by Section 11 are void
ipso jure, the Apex Court considered the meaning to be given to the expression “wife”
used in Section 125 of Criminal Procedure Code. It held that the expression must be
given the meaning in which it is understood in law applicable to the parties. It was
then sought to be argued on behalf of the appellant before the Apex Court that the
personal law of the parties to a proceeding under Section 125 of the Code should be
completely excluded from consideration. While rejecting the argument, the Apex
Court observed :
The attempt to exclude “altogether the personal law applicable to the parties from
consideration also has to be repelled. The section has been enacted in the interest of a
wife, and one who intends to take benefit under subsection (l)(a) has to establish the
necessary condition, namely, that she is the wife of the person concerned. This issue
can be decided only by a reference to the law applicable to the parties. It is only where
an applicant establishes her status or relationship with reference to the personal law
that an application for maintenance can be maintained.”

With the above observations, the Apex Court rejected the appeal holding that the
marriage of a woman in accordance with the Hindu rites with a man having a living
spouse is a complete nullity in the eye of law and she is not entitled to the benefit of
Section 125 of the Code.

In it’s subsequent decision in Savitaben’s case (supra) the Apex Court followed its
decision in Yamunabai’s case in every respect. It was additionally sought to be argued
in that case that a rigid interpretation given to the word “wife” goes against the
legislative intent of protecting destitute and harassed women and also such
interpretation operates harshly against the woman who unwittingly gets into
relationship with a married man. The Apex Court dealt with the argument with
following observations :
This may be an inadequacy “ in law, which only the legislature can undo. But as the
position in law stands presently there is no escape from the conclusion that the
expression 'wife' as per Section 125 ofthe Code refers to only legally married wife.”
The Apex Court in Savitaben Somabhai Bhatiya Vs. State of Gujarat and Others
in117 observed that “It may be noted at this juncture that the legislature considered it
necessary to include within the scope of the provision an illegitimate child but it has
not done so with respect to woman not lawfully married. However, desirable it may
be, as contended by learned counsel for the appellant to take note of the plight of the
unfortunate woman, the legislative intent being clearly reflected in Section 125 of the
Code, there is no scope for enlarging its scope by introducing any artificial definition
to include woman not lawfully married in the expression 'wife'

1.3.21.Maintenance to Muslim Wife under section 125 CrPC : Although there is a

separate legislation as far as the maintenance for a muslim woman is concerned but a
muslim woman is at liberty to invoke the provisions of section 125 of Cr. P.C. She
can reap the benefits of the present legislation irrespective of the provisions of
Muslim Woman (Protection of Rights on Divorce) Act, 1986. This issue is discussed
at length under Chapter III (b).

1.3.22."Child".- The word "minor" is now defined in the Explanation and provision
in case of children who have attained majority is also made in sub-sec. (1) to set at
rest the divergence of opinion under the old Code between the Madras.118 the
Calcutta119" and the Kerala"120 High Courts on one hand and the Bombay High Court"
on the other as to the meaning of the word "child". In Nanak Chand v. Chandra Kishore
the Supreme Court said as to the word "child": If the concept of majority is imported into
the section (old S. 488), a major child who is an imbecile or otherwise handicapped will
fall outside the purview of this section. The emphasis is always on inability to maintain
himself? The new provisions in the present Code make specific mention of major children
(except married daughters) where they are unable to maintain themselves. The children
attaining majority but are not having physical/mental abnormality are not entitled to
maintenance under S. 125.122Even if the wife might not for some reason be entitled to
for the minor child so long as he lives with the mother and the father did not take steps to
obtain the custody of the child.123 Even if the wife willfully abandons her husband, the
minor children accompanying her will be entitled to maintenance.124
A child whether legitimate or illegitimate is entitled to maintenance from his/her father.
1.3.23.Children of second wife: A second wife so long as the first wife is alive and there has
been no annulment of marriage by decree of divorce or otherwise is not entitled to maintenance,
but her children are entitled to maintenance allowance from her father.

1.3.24.Maintenance to child after  majority.-Maintenance to child cannot be granted beyond the

age after attainment of majority in the absence of any physical or mental abnormality. Any child
who has attained majority is not automatically entitled to claim maintenance even if he is unable
to maintain himself as was the case under the old Code. The inability to maintain him should
arise out of physical or mentalabnormality or injury.

In Yerram Vinod vs The State Of A.P.125 AndhraPradesh High Court while explaining
the principal changes introduced by the new code in section 125 CrPC stated that under the new
Code sub-sections (1) to (5) corresponds to sub-sections (1)to (5) of old Section 488 and certain
changes have been made in sub-section (1) clauses (a) to (d) which has been substituted for
the words " his wife or his legitimate or illegitimate child unable to maintain itself & quot;.
The principal changes introduced are:

1.In the case of wife the order can be passed only if she is unable to maintain herself [sub-
section 1(a)].
2.The benefit of the provision has been extended to a woman who has been divorced by, or
has obtained a divorce from, her husband and has not remarried [Clause (b) to Explanation
in sub-section (1)].
3.Only minor children, legitimate or illegitimate, whether married or not come under the
purview of this section with a proviso that in case of a minor married daughter order can be
passed on the father if the husband of the minor female child is not possessed of sufficient
means [Sub-section 1(b) and proviso].
4.In case of a major child, legitimate or illegitimate other than a marred daughter the liability
arises only when the child is by reason of physical or mental abnormality or injury unable to
maintain itself [sub-section 1(c)].

5.The benefit has also been extended to parents who are unable to maintain themselves [sub-
section 1(d)].
The Court observed that it is not in dispute that the proceedings in the civil court are
substantial, whereas the proceedings under Section 125 Cr.P.C. are of a summary in nature.
Once the civil court of competent jurisdiction comes to the conclusion that the wife is not
entitled to maintenance, the criminal court under Section 125 Cr.P.C. cannot sit in appeal
over the said decision. A father is liable to maintain his children, legitimate or illegitimate.
Under Section 488 of the old code maintenance covered cost of college education till the
child was old enough to earn his living. The conflict of laws as to whether child in the section
means, only a minor child or is irrespective of age, "unable to maintain herself" has now been
settled by incorporating sub-section (l)(c) to Section 125 Cr.P.C.1973. Under the new Code
only minor children unable to maintain themselves are entitled to claim maintenance from the
father or the mother. In case a major children only those who through some mental or
corporal defect or injury are unable to maintain themselves are entitled to maintenance under
Section 125 (1) (c).
45

Once the concept of majority is imported into Section 125(1) (c) a major child who is an
imbecile or otherwise handicapped will fall outside the purview of this section. The Court
further observed that in view of the same, in the present case unless the respondents 3 and 4
major daughters establish that they are covered by section 125(1)

(c)they cannot claim maintenance under Section 125 Cr.P.C. but are entitled to maintenance
under Section 20(3) of Hindu Adoption and Maintenance Act on satisfying that they are
unable to maintain themselves.
1.3.25. Omission to join children in application-Omission to join children as applicants in
the application for maintenance allowance is an irregularity and that by itselfis not a ground
to disentitle them from claiming maintenance.
The basis of an application for the maintenance of a child is the paternity of the child
irrespective of its legitimacy or illegitimacy. A woman may be of bad character and yet be
entitled to an order for maintenance of her illegitimate child if she proves that the man against
whom she proceeds was the father of the child.

Similarly, an unchaste wife is entitled to maintenance for her husband's child. A divorced
wife, entitled to the custody of her children, can recover for their maintenance. A father is
bound to maintain his child even though the child is living with its mother who refuses to
return to her husband under a decree for restitution of conjugal rights. When the custody of a
child is wrongfully withheld from its father, who is its legal guardian, he cannot be called
upon to pay for its maintenance. In the aforementioned cases, however, it has been held that a
child cannot be deprived of his right to maintenance because the mother refuses to keep him
in the custody of his father. The father cannot insist that the child should be kept in his
custody as a condition precedent to his liability to maintain him."
2.3.26. 'Legitimate or illegitimate child unable to maintain itself.-The phrase means "unable
to earn a livelihood for itself," that is to say, a complete livelihood, such as an adult person
might earn, without depending on any other person. In different communities and different
circumstances the words "unable to maintain itself may mean different things. Among the
labouring classes it may even be
possible to hold that a healthy boy aged 16 is not unable to maintain itself. Unable to
maintain does not mean that the person must be destitute.127
 The maintenance allowed to a girl cannot be cancelled on her marriage without proof
that she has thereby become able to maintain herself and ceased to depend upon the
maintenance ordered.128

In Dwarika Prasad Satpathy, vs. Bidyut Prava Dixit and Anr.129 it was held that the
validity of the marriage for the purpose of summary proceedings under Section 125 of the
Code is to be determined on the basis of the evidence brought on record by the parties. The
standard of proof of marriage in such proceedings is not as strict as is required in a trial of
offence under Section 494 of Indian Penal Code, 1860 (in short the "IPC"). If the claimant in
proceedings under Section 125 succeeds in showing that she and the respondent have lived
together as husband and wife, the Court has to presume that they are legally wedded spouses,
and in such a situation one who denies the marital status can rebut the presumption. Once it is
admitted that the marriage procedure was followed then it is not necessary to further probe as
to whether the said procedure was complete as per the Hindu rites, in the proceedings under
Section 125 of the Code. It is to be noted that when the respondent does not dispute the
paternity of the child and accepts the fact that marriage ceremony was performed though not
legally perfect, it would hardly lie in his mouth to contend in proceedings under Section 125
of the Code that there was no valid marriage as essential rites were not performed at the time
of said marriage. The provision under Section 125 cannot be utilize for defeating the rights
conferred by the legislature on the destitute women, children or parents who are victims of
social environment. The provision is a measure of social justice and as noted above specially
enacted to protect women and children and falls within the constitutional sweep of Article
15(3) reinforced by Article 39 of the Constitution.

2.3.27. Unmarried daughter.-An unmarried daughter whether minor or major is entitled to

maintenance.
2.3.28.Adopted son.-An adopted child is entitled to maintenance allowance in proceedings
under S. 125(3)
2.3.29.Mother's liability to pay maintenance.- The expression "any person" in S. 125 Cr.P.C.
includes mother also. Hence a child is entitled to claim maintenance from her mother also.

2.3.30.Quantum of maintenance : The earlier provision that only a sum of money not
exceeding Rs. 500/- should be ordered to be paid has now been omitted by an amendment of
the year 2001. After this amendment the maximum limit of Rs. 500/- has been removed and
now the amount of allowance for the maintenance or the interim maintenance shall be in the
discretion of the Magistrate. Of course no other payment in other shape such as tuition fees or
medical expenses can be ordered to be paid in addition to the allowance for the maintenance
or interim maintenance. The Magistrate can also not order the husband to provide other
additional facilities like house accommodation etc. Every wife and every child and father and
mother can be awarded such amount of allowance of maintenance or interim maintenance
which the person ordered has the means to pay. The amount of maintenance allowance or the
interim maintenance can be varied if a change in the circumstances is brought to the notice
ofthe court.

While determining the amount of maintenance or interim maintenance the court will
take into consideration the existing situation, such as that one of the child, was a student of
some course involving heavy expenditure, at the time of passing order.130 Where the trial
court and the court of appeal have given concurrent finding

about amount of maintenance, its correctness cannot ordinarily be questioned in revision

petition in the High Court.131 However, the rate cannot be fixed on an abstract and
hypothetical thing like capacity to earn money.132
While awarding the amount of maintenance allowance or interim maintenance the
court shall fix it taking all the items of maintenance together and separate amount may be
ordered for each ofthe claimant.
It was held in Sudeep Chaudhary v. Radha Chaudhary,133 that the amount awarded
under section 125, Cr. P.C., for maintenance was adjustable against the alimony amount
awarded in the matrimonial proceeding under Section 24 of the Hindu Marriage Act, 1955
and was not to be given over and above the same.
Whether maintenance be granted from the date of the Order passed by the Family
Court or from the date of application made under Section 125 of the Code There is difference
on opinion among different High Courts on the aforesaid issue.

2.3.31Does the expression "imprisonment" in Section 125(3) Cr.P.C take within its sweep
rigorous imprisonment also
The decision of the Supreme Court in Kuldip Kaur v. Surinder Singh134 while
considering the question whether the default sentence, if undergone shall wipe off the liability
makes the position crystal clear with respect to the nature of imprisonment as mentioned in
section 125(3) Cr.P.C. In paragraph 6 of the said judgment it has been clearly held that the
sentence is imposed under Section 125(3) Cr.P.C only as a mode of enforcement of the
direction to pay the amount of maintenance and not as a punishment. 'The default sentence
under Section 125(3) Cr.P.C cannot hence be
reckoned as a punishment as such. Even a sentence of imprisonment in default of fine
vi
is not a pifiishment. It,is only a penalty which a person incurs on account of non payment of
fine. In Shantilal v. State of M.P 2008(1)KLT 503], the Supreme Court has observed that the
term of imprisonment in default of payment of fine is not a sentence. It is a penalty which a
person incurs on account ofnon-payment of fine. The sentence is something which an
offender must undergo unless it is set aside or remitted in part or in whole either in appeal or
in revision or in other appropriate judicial proceedings or "otherwise". A term of
imprisonment ordered in default of
payment of fine stands on a different footing. A person is required to undergo imprisonment
either because he is unable to pay the amount of fine or refuses to pay such amount.

In Moideenkutty vs State of Kerala135, the Court observed that to come to the

conclusion that rigorous imprisonment can be imposed, reliance was placed by the Calcutta
High Court, Moddari Bin v. Sukdeo Bin136, and the Allahabad High Court, Emperor v. Beni
(FB)137 on Form XL of Schedule 5 of the former Code while holding that rigorous
imprisonment can be imposed. That form is not now available. Form 18 in the second
schedule to the present (1973) Code does not contain anything to indicate that the option of
imposition of rigorous imprisonment is available to the court for default in payment of
maintenance amount.

The Court further observed that it can assume that the framers of the present code,
with the march of civilization felt that if is not necessary to authorize the court

to impose a sentence of rigorous imprisonment for default in payment of the maintenance

amount. That may only be a meager indication.
The rationale underlying Section 125(3) Cr.P.C makes it clear- that the law wants the
direction to pay maintenance to be enforced and executed strictly. Under the threat of
detention in a criminal prison compliance is insisted. That going by the purpose which such
detention/imprisonment has to serve also, it is not necessary to impose the harsh punishment
of rigorous imprisonment under Section 125(3) Cr.P.C.
The threat of being sent to prison is by itself sufficient deterrenjgp^-^si^iot necessary to cap
the same with the further direction that such prisonal^p5uIduii^P|o rigorous
Imprisonment with obligation to render hard labour. .........1 ★))

The Court held that it follows from the above "imprisonment" in Section 125(3)
Cr.P.C must receive and a humane interpretation consistent with the constitutional ideals as
to avoid the consequence of subjecting such a defaulter to the ordeal of rendering involuntary
hard labour for the mere indiscretion of failure/refusal to make payment of the maintenance
amount.
2.3.32One view-Maintenance from the date of order: According to one view, since Sub-
section (2) of Section 125 declares that maintenance shall be payable "from the date of the
order", or, "if so ordered, from the date of application for maintenance", normal rule is that a
Magistrate should pass an order directing payment of maintenance only from the date of the
order. If he decides to deviate that course and makes an order granting maintenance not from
the date of the order but from the date of application for maintenance, he must record reasons
in support of such order138

2.3.33 .Other view-Maintenance from the date of application: However, some High Courts

have taken a contrary view; they held that normally, maintenance should be granted from
the date of the application and not from the date of the order. If the Magistrate is inclined
to make an order granting maintenance from the date of the order and not from the date of
application, he should record reasons to do so.139

However, the aforesaid controversy with respect to the date from which the
maintenance is payable has come to rest by the landmark decision of the Hon’ble Supreme
Court in the case of Shail Kumari Devi and Anr. Vs. Krishan Bhagwan

. Pathak Vs. Kishun B. Pathak140 in which the Hon’ble Supreme Court has not agreed to
view that as a normal rule, the Magistrate should grant maintenance only from the date ofthe
order and not from the date of the application for maintenance, and in case magistrate intents
to pass such an order, he is required to record reasons in support of such order. The
magistrate is not required to record special reasons, if he intends to order maintenance from
the date of application as there is nothing in Section 125 (2) which requires so. However, the
magistrate must record reasons as envisaged by Sub section (6) of Section 354 of the Code in
 support of the order passed by him. Finally, the apex court held that while deciding an
application under Section 125 of the code, a Magistrate is required to record reasons for
granting or refusing to grant maintenance to wives, children or parents. Such maintenance
can be awarded from the date ofthe order, or, if so ordered, from the date of the application
for maintenance, as the case may be. For awarding maintenance from the date of the
application, express order is necessary. No special reasons, however, are required to be
recorded by the Court.”

Thus, from the aforesaid judgment of the Apex Court, the following point emerges:

(i)It is incorrect to say that as a normal rule, the Magistrate should grant maintenance only from the
date of the order and not from the date of the application for maintenance, and in case
magistrate intents to pass such an order, he is required to record reasons in support of such
order.

(ii)The Magistrate" has the discretion to grant maintenance from the date of application or date of
order.
(iii)For awarding maintenance from the date of the application, express order is
necessary but no special reasons are required to be recorded by the Court.

2.4SECTION 126 CrPC PROVIDES FOR THE PROCEDURE, JURISDICTION ,

MODE OF TAKING EVIDENCE AND GRANT OF COSTS IN RESPECTOF
PROCEEDINGS INITIATED UNDER SECTION 125 CrPC.
IT RUNS AS UNDER:
(1)Proceedings under section 125 may 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 ease may be, with the mother ofthe illegitimate
child.
(2)All evidence to such proceedings shall be taken in the presence of the person against
whom an order for payment of maintenance is proposed to be made, or, when his personal
attendance is dispensed with in the presence of his pleader, and shall be recorded in the
manner prescribed for summons-cases:
 Provided that if the Magistrate is satisfied that the person against whom an order for
payment of maintenance is proposed to be made is willfully avoiding service, or willfully
neglecting to attend the court, the Magistrate may proceed to hear and determine the case ex-
parte and any order so made may be set aside for good cause shown on an application made
within three months from the date thereof subject to such terms including terms as to
payment of costs to the opposite party as the Magistrate may think list and proper.

(3)The Court in dealing with applications under section 125 shall have power to make such
order as to costs as may be just.
In Kumutham v. Kannappan141 The Supreme Court had held that petition

under S. 125 Cr. P.C by the wife for maintenance for herself and her daughter at the place of
residence of the wife is maintainable. The Court has jurisdiction to try the petition, it is
immaterial that the husband is not residing in its jurisdiction.
The words “in any district ” do not mean in any Court in any district where the
husband resides. It means only a Court in the district within whose jurisdiction the husband
resides.142

For modification or alteration the wife is entitled to file application where she resides.
Kailashben Arvindkumar Joshi v. Arvindbhai Ratilal Joshi, 1986 (1) Crimes 556, 561
(Guj).143

2.4.1“Resides”

The word “resides” connotes some sort of permanent intention to stay at a particular
place and a mere casual visit to place other than the one where a person has a fixed home,
will not be sufficient. In the case of persons who have a fixed residence

a visit to another place for however long a period , so long as it is casual, will not confer
jurisdiction . Where , however , the parties have no home of any sort and are moving about
from place to place, each place where they so live would be their home for the time being; the
sole test being whether a party has animus manendi or an intention to stay for an indefinite
period , at one place , and if he has such an intention, then alone can be said to reside
there.144
 Last resided - The term “resided” includes a temporary residence and is not to be
confined to permanent residence,145 However it implies something more than a mere brief
flying visit.146
2.4.2Within three months from the date thereof [Sub - section (2), Proviso], -
There is difference of opinion as to whether the period of three months runs from the
date of the ex parte order or begins from the date the aggrieved party had or ought to have
knowledge thereof. The Punjab147 and the Mysore148 High Courts hold the former view and
the Andhra Pradesh High Court149 the latter. In a recent frill bench judgment of the Punjab
High Court, which overruled its previous decision in Hari Singh v. Mt Dhanna.150 It has
been held that a decision adversely affecting a party does not come into force before that
party acquires notice thereof and the period of limitation should, therefore, be reckoned from
the date of knowledge of the ex parte order. Terminus a quo for reckoning the period is not
the date ofthe order.151

It has been held that where the husband opposite party has been evading service of
notice of petition , limitation for setting aside will be seen from the date of passing of ex parte
order152 In a case where the husband willfully did not participate in the proceedings despite
service of notice on him, petition for setting aside ex parte order of maintenance was
disallowed.153

In Sumathi v . N.J Peter154 the Court held that if an ex parte order is passed without
complying with the provisions of the proviso , the bar of three months also will not apply.
It has also been held that an application for setting aside the ex parte order beyond
three months, without showing good cause would be rejected as time barred.155

Perusal of aforesaid authorities clearly reveal that the interpretation of the proviso is
done so as to give effect to the true object ofthe beneficial legislation.
2.4.3Criminal Procedure Code, Section 125 - Limitation Act, 1963, Section 15 In Amarendra Kumar
Paul v. Maya Paul,156 an order granting maintenance to
three minor children was passed by Magistrate in the year 1994.Revision against the said
order was filed by father . The order remained stayed during pendency of revisions firstly
before Sessions Court and thereafter by High Court. Revision was dismissed by High Court
in the year 2004. Thereafter, execution application was filed in the year 2005. An objection
was raised that children were not entitled to maintenance as they had attained majority in the
 year 1997 before filing of execution application. The Court held that contention was not
tenable. Children will be entitled to maintenance till the age of attaining majority and the
daughter till she was married. Another issue before the Court in this case was whether the
Execution application not barred by limitation? In this case, an order granting maintenance to
children under Section 125 Cr .P.C was passed by Magistrate in the year 1994. Limitation to
execute the order is one year. However, revisions were filed against the order by husband in
higher courts. Therefore the order remained stayed during pendency of revisions. Revisions
were dismissed in the year 2004. Consequently, Execution application was filed in the year
2005. The Court held that Execution application was not barred by limitation as under
Section 15 of Limitation Act period of one year would be computed excluding the period
during which order ofMaintenance remained stayed.

2.5SECTION 127 CrPC PROVIDES FOR ALTERATION OF ALLOWANCE OF

MAINTENANCE BY CHANGE OF CIRCUMSTANCES OF THE PERSON RECEIVING
OR PAYING THE AMOUNT.

15
7 *

 
[(1) On proof of a change in the circumstances of any person, receiving, under
section 125 a monthly allowance for the maintenance or interim maintenance, or ordered
under the same section to pay a monthly allowance for the maintenance, or interim
maintenance, to his wife, child, father or mother, as the case may be, the Magistrate may
make such alteration, as he thinks fit, in the allowance for the maintenance or the interim
maintenance, as the case may be.]
(2)Where it appears to the Magistrate that, in consequence of any decision of a competent
Civil Court, any order made under Section 125 should be cancelled or varied, he shall cancel
the order or, as the case may be, vary the same accordingly.
(3)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] after her divorce, cancel the order from the
date thereof.

(4)At the time of making any decree for the recovery of any maintenance or dowry by any
person, to whom159 [monthly allowance for the maintenance and interim maintenance or any
of them has been ordered] to be paid under Section 125, the Civil Court shall take into
account the sum which has been paid to, or recovered

by, such person 160 [as monthly allowance from the maintenance and interim maintenance or
any ofthem, as the case may be, in pursuance of] the said order.
The order can relate back to the date of filing of application. It can also be cancelled if
it is superseded by the decree of civil court
2.6Section 128 provides for the provision for enforcement of order of maintenance. It
runs as under:
A copy of the order of161 [maintenance or interim maintenance and expenses of
proceeding, as the case may be,] shall be given without payment to the person in whose
favour it is made, or to his guardian, if any, or to his guardian, if any, or to the person to
[whom the allowance for the maintenance or the allowance for the interim maintenance and
expenses of proceeding, as the case may be,] is to be paid; and such order may be enforced by
any,; Magistrate in any place where the person against whom it is made may be, on such
Magistrate being satisfied as to the identity of the parties and the non-payment of the 163
[allowance, or as the case may be, expenses, due].
Sentencing to jail is the means for achieving the end of enforcing the order by
recovering the amount of arrears. It is not a mode of discharging liability. The section does
not say so. The Parliament in its wisdom has not said so. Even commonsense does not
support such a construction.
 The above study explicitly reveals that both the legislature as well as judiciary had
through their respective roles contributed to achieve the objectives of the provision and
thereby remove the vagrancy, impoverishment and destitution.
It is worth appreciation that judiciary is making pace with time ; acknowledging the
constant change in social attitudes and values have recommended for a broader definition of
the term “wife” used in Section 125 of Cr.P.C so that the benefit ofthis social legislation may
be extended to many more.
Recently in Chanmuniya vs Yirender Kumar Singh Kushwah & anr,164

Supreme Court held that since the Protection of Women from Domestic Violence Act 2005
gives a very wide interpretation to the term ‘domestic relationship’ as to

take it outside the confines of marital relationship , and even includes ‘live in relationship’ in
the nature of marriage within the definition of ‘domestic relationship’ under section 2(f) ofthe
Act and monetary relief and compensation can be awarded in cases of live in relationship
under the Act of 2005, they should also be allowed in proceedings under section 125 of
Cr.P.C., as it seems the same is also confirmed by section 26 of the Act. The Court believed
that such an interpretation would be a just application to the principles enshrined in the
Preamble to our Constitution, namely, social justice and upholding the dignity of an
individual. In view of above the Court requested the Hon’ble Chief Justice to refer the
following amongst other questions to be decided by a larger Bench.

Whether strict proof of marriage is essential for a claim of maintenance under section
125 Cr.P.C having regard to the provisions of Domestic Violence Act, 2005?

We cannot ignore the fact that the values and principles of society are changing
rapidly and so must the law lest the objective of the aforesaid provisions cannot be fulfilled
rather it would give way to more cases of destitution and impoverishment. But at the same
time necessary caution must be taken not to encourage severing from basic social values.