- The objective to enforce the social duty to prevent Vagrancy and
Destitution, leading to crimes.
- Maintenance granted irrespective of personal laws.
- It is a tentative remedy, the proceedings being summary.
- An economic umbrella to the weaker, having no sufficient means to
- The Wives, Children and Parents being the Beneficiaries.
The Inclusive Definition of Wife
- Wife includes a woman who has not remarried after divorce.
- The object is to frustrate the unscrupulous husbands from making easy
divorces under personal law.
- The Shah Bano Case.
- Consequently the retrograde legislation--The Muslim Women (Protection
of Rights on Divorce) Act, 1986
- S.C. resolving the controversy in Daniel Latifi V. UoI, 2001 determining
the rights of Muslim women.
The Wife to be a Legally Married Woman
- The legality of marriage decided under personal law.
- In a case of illegality due to bigamy, the victim has to suffer and the
perpetrator goes scot-free.
- The requirement of legal marriage is frustrating the very objective.
- Plea of Ignorance of first marriage refused by court stressing the
paramount nature of legislative intention
- The need to delete this precondition in a country where most marriages
could be held illegal due to manifold reasons.
- The judicial prejudice in favour of marriage.
Maintenance to the weaker means
The patriarchal social context leading the legislature and the judiciary to
provide for maintenance to:
- The wife by the husband,
- The Child by its father, and
- The father and the mother by the son.
- The silence of law respecting the liability of the daughter.
- Supreme Court making daughter duty-bound to maintain her parents,
stressing social obligation.
- (Vijaya Manohar Arbat v/s Kashirao Rajaram Sawai.)
The determination of the Quantum
- Inflation and increased standard of living paving way to the removal of
- Unable to maintain herself relates to the actual and separate income of
the wife and not the possible or potential income.
- The fixing of the amount shall go beyond the expenses for her primary
- The date of effect shall be from the date of application, considering
- Besides personal income, the income from the corpus property of the
liable person also shall be taken into account.
Eligibility to Maintenance
- Living in adultery, means not a single act, shall not be used in a way
to harass the wife.
- Wife must not refuse, without sufficient reasons, to live with her
- The wife is not living separately by mutual consent.
- Person claiming maintenance must not be capable of maintaining herself.
(Abdul Munaf v/s Salima, 1979. Cant, H.C.)
- The wife is not living separately by mutual consent.
Procedure: Maintenance Order
- The amount to be modestly consistent with the status of the family.
- The removal of ceiling of Rs 500/- per month and the fixing of
time-frame through Amendment Act, 2001
- Warrant is issued on every breach of the order for levying the amount.
- The imprisonment of one month is a last resort when recourse to
attachment and sale fail
- The imprisonment is to pressurize enforcement and not a mode to satisfy
Procedure: Cancellation of Order:
- The wife is living in adultery.
- Without sufficient reasons she refuses to live with the husband.
- They are living separately by mutual consent.
- On a decision of a competent civil court.
- She remarries after divorce, the order is cancelled w.e.f. the date of
- On complete compliance with the order.
Order for maintenance of wives and children (Section 125 of CrPc)
Legal provisions regarding order for maintenance of wives and children under
section 125 of the Code of Criminal Procedure, 1973.
The maintenance proceedings is not to punish a person for his past neglect, but
to prevent vagrancy leading to the commission of crime and starvation by
compelling those who can do so to support those who are unable to support
themselves and who have a moral claim to support. The provisions of maintenance
of the Code of Criminal Procedure are applicable to persons belonging to all
religions and have no relationship with the personal laws of the parties.
Persons entitled to claim maintenance: According to Section 125(1) of the
Code, the following persons are entitled to claim maintenance under certain
As per Section 125(l) (a) of the Code, if any person having sufficient means
neglects or refuses to maintain his wife, unable to maintain 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 at such
monthly rate, as such Magistrate thinks fit, and to pay the same to such person
as the Magistrate may from time to time direct.
' includes a woman who has been divorced by, or has obtained a
divorce from, her husband and has not remarried.
The wife may be of any age-minor or major. 'Wife' for the purposes of Section
125 means a legally married woman. The legality of the marriage would be
governed by the personal laws applicable to the parties. If the fact of legally
valid marriage is disputed, the applicant will have to prove marriage. A
marriage solemnized by exchange of garlands was held invalid.
Under Section 125(l)(a) of the Code, maintenance allowance cannot be granted to
every wife who is neglected by husband or whose husband refuses to maintain her,
but can only be granted to a wife who is unable to maintain herself but not a
wife who is maintaining herself with some difficulty.
By the phrase 'unable to maintain herself
', it is not meant that she
should be absolutely destitute and should be first on the street, should beg and
be in tattered clothes and then only she will be entitled to move an application
under Section 125 of the Code.
If a person is willing to maintain his wife in accordance with his civil
obligation, there is neither neglect or refusal. Where the husband is making
payment of some amount to the wife but the amount is not sufficient to meet her
basic necessaries of life, it is clearly 'neglect' or refusal to maintain the
wife within the meaning of Section 125 of the Code.
In Savitaben Somabhai Bhatiya v. State of Gujarat
, it was held that
Section 125 of the Code has been enacted in the interest of a wife and one who
wants to take the benefit under sub-section (l)(a) of Section 125 has to
establish that she is the wife of the person concerned.
The issue can be decided only by a reference to the law applicable to the
parties. It is only when such a relationship with reference to personal law is
established that the application for maintenance can be maintained. The issue
whether Section 125 is attracted or not, cannot be answered except by a
reference to the appropriate law governing the parties.
Marriage of a woman, even if it is in accordance with the Hindu rites with a
man, having a spouse living at the time of the marriage, is a nullity in the eye
of law. The lady will not get the status of a legally wedded wife and
accordingly not entitled to the benefit of Section 125 of the Code of Criminal
The wife is not entitled to receive an allowance from her husband in three
- if she is living in adultery, or
- if she refuses to live with her husband and without any sufficient
- if they are living separately by mutual consent.
Section 125 of the Code gives effect to the fundamental and natural duty of a
man to maintain his wife. Section 125 provides a statutory right and cannot be
affected by personal law. The right conferred upon the wife by the provisions of
Section 125 is independent of personal law and to claim protection of Mohammedan
Law in derogation of the statutory provisions of the Code is not permissible. A
wife is entitled to maintenance under Section 125, irrespective of the fact that
she is not entitled to maintenance under the personal law.
In Chaturbhuj v. SitaBai
, the respondent had filed an application under Section
125 of Cr.P.C. claiming maintenance from the appellant. The appellant and the
respondent had entered into a marital knot about four decades back and for more
than two decades they were living separately. In the application it was claimed
by the respondent that she was unemployed and unable to maintain herself.
The object of the maintenance proceedings is not to punish a person for his past
neglect, but to prevent vagrancy by compelling those who can provide support to
those who are unable to support themselves and who have a moral claim to
The phrase unable to maintain herself
would mean that means available to the
deserted wife while she was living with her husband and would not take within
itself the efforts made by the wife after desertion to survive somehow.
Under the law the burden is placed in the first place upon the wife to show that
the means of her husband are sufficient. There is no dispute that the appellant
has the requisite means. But there is an inseparable condition which has also to
be satisfied that the wife was unable to maintain herself.
These two conditions are in addition to the requirement that the husband must
have neglected or refused to maintain his wife. The appellant has placed
material to show that the respondent/wife was earning some income. This is not
sufficient to rule out application of Section 125, it has to be established that
with the amount she earned the respondent-wife was able to maintain herself.
Whether the deserted wife was unable to maintain herself, has to be decided on
the basis of the material placed on record. Where the personal income of the
wife is insufficient, she can claim maintenance under Section 125.
The test is whether the wife is in a position to maintain herself in the way she
was used to in the place of her husband. The conclusions of Courts that
respondent-wife unable to maintain herself was factual and cannot be interfered
with in absence of perversity.
In Mohd. Ahmed Khan v. Shah Bano Begum
, it is declared that a Muslim husband
having sufficient means must provide maintenance to his divorced wife who is
unable to maintain herself. Such a wife is entitled to the maintenance even if
she refuses to live with the Muslim husband because he has contracted another
marriage within the limits of four wives allowed to him by Quran.
The Bench of the Supreme Court declared that a Muslim divorced woman who cannot
maintain herself is entitled to maintenance from her former husband till the
time she gets remarried.
They rejected the plea that maintenance is payable for the iddat period only.
Pointing to the ayats of the Quran, the judges declared that the Quran imposes
an obligation to provide maintenance to the divorced wife.
The judges also rejected the contention that deferred Mahr (dower) is a payment
on the divorce of a wife and hence such payment under the personal law excludes
the payment of any maintenance by the husband to the wife. They stated that Mahr
is an amount which the wife is entitled to receive from the husband in
consideration of the marriage. They observed that according to Quran, the dower
is a consideration and mark of respect for the Muslim woman instead of being a
consideration for divorce.
The learned judges stated that the religion professed by a spouse has no place
in the scheme of Section 125 of the Code of Criminal Procedure which is a
measure of social justice founded on an individual's obligation to the society
to prevent vagrancy and destitution.
The Supreme Court has held that if there is any conflict between personal law
and Section 125 of the Code, then it is clear from the language of Section 125
that it overrules the personal law. This judgment created a storm and priest of
Islam started agitation. Then the Central Government enacted the Muslim Women
(Protection of Rights on Divorce) Act, 1986.
The divorced Muslim wife's claims are now to be governed by this Act. It is
possible for the Muslim spouses to opt to be governed by the provisions of the
Code of Criminal Procedure by virtue of a provision in that Act.
According to that Act, a divorced Muslim wife whose relatives are incapable of
maintaining her as required under her personal law can straight away apply to
the State Wakf Board for maintenance.
Since the Muslim Women (Protection of Rights on Divorce) Act, 1986 does not
contain any provision excluding application of the Family Courts Act a claim for
maintenance even by a divorced Muslim woman under Chapter IX (Sections 125 to
128) of the Code of Criminal Procedure shall be to the Family Court.
The Code of Criminal Procedure must override his personal law if it conflicts
with it. A proceeding under Sections 24 and 25 of the Hindu Marriage Act, 1955
could not operate as a bar to a proceeding under Section 125 of the Code. In the
same way Section 18 or 20 of the Hindu Adoption and Maintenance Act, 1956 does
not override the provisions of relief of Section 125 of the Code.
he Hon'ble Supreme Court in a path breaking judgment Chanmuniya Vs. Chanmuniya
Virendra Kumar Singh Kushwaha and Anr
1 held that "Where partners lived together
for a long spell as husband and wife, a presumption would arise in favour of a
According to Section 125(1)(b) of the Code of Criminal Procedure, if any person
having sufficient means neglects or refuses to maintain his legitimate or
illegitimate minor child, whether married or not, unable to maintain itself or
as per Section 125(1)(c) of the Code, 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, 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
such child, at such monthly rate, as such Magistrate thinks fit, and to pay the
same to such person as the Magistrate may from time to time direct.
However, the Magistrate may order the father of a minor female child referred to
in Section 125(1)(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. Here 'minor' means a person who,
under the provisions of the Indian Majority Act, 1875 is deemed not to have
attained his majority.
A Muslim minor girl would be entitled to get maintenance from her father even
after the enforcement of Muslim Women (Protection of Rights on Divorce) Act,
The word Child
is not defined in the Code. It means a male or female person
who has not reached full age, i.e., 18 years as prescribed by the Indian
Majority Act, 1875 and who is incompetent to enter into any contract or to
enforce any claim under the law.
Father or mother:
According to Section 125(l)(d) of the Code of Criminal Procedure, if any person
having sufficient means neglects or refuses to maintain 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 father or mother, at such monthly rate, as such
Magistrate thinks fit, and to pay the same to such person as the Magistrate may
from time to time direct.
The daughter whether married or unmarried would also be liable to maintain the
parents as the Indian society casts a duty on the children to maintain the
parents and this social obligation equally applies to a daughter.
Section 125 of the Code does not clearly state whether 'father' or 'mother'
include 'adoptive father' or 'adoptive mother' or 'stepfather' or 'stepmother'.
According to Section 3(20) of the General Clauses Act, 1897, the word 'father'
shall include an 'adoptive father', and though the term 'mother' has not been
similarly defined, it has been held that the term 'mother' includes adoptive
Though the 'mother' shall not include 'stepmother', a childless stepmother may
claim maintenance, under Section 125 of the Code, from her stepson provided she
is a widow or her husband, if living, is also incapable of supporting and
maintaining her and if has natural born sons and daughters and her husband is
alive and capable of earning, she cannot claim maintenance from her stepson.
If there are two or more children the parents may seek the remedy against anyone
or more of them, at place or places where they live.
As per Section 125(1) of the Code, only a husband or a father or a son or a
daughter, as the case may be, to pay maintenance to the respective persons,
namely, wife, child, father or mother, under certain circumstances. Section 125
does not contemplate the mother to pay maintenance to father or son and
daughter, as the case may be.
As per second proviso to Section 125(1) of the Code of Criminal Procedure,
during the pendency of the proceeding regarding monthly allowance for the
maintenance under Section 125(1) of the Code, 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.
Further, 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.
Essential conditions for granting maintenance:
Sufficient means to maintain:According to Section 125(1) of the Code of Criminal Procedure, the person from
whom maintenance is claimed must have sufficient means to maintain the person or
persons claiming maintenance. Here, the expression 'means' does not signify only
visible means such as real property or definite employment.
If a man is healthy and able-bodied, he must be held to possess the means such
as real property or definite employment. The words 'sufficient means' should not
be confined to the actual pecuniary resources but should have reference to the
Earning capacity or 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 full. If a person is healthy and able-bodied, he must
be held to have the means to support his wife, children and parents. Capability
of a person to pay must be proved to fix the quantum of maintenance.
Neglect or refusal to maintain:As per Section 125(1) of the Code of Criminal Procedure, the person from whom
maintenance is claimed must have neglected or refused to maintain the person or
persons entitled to claim maintenance.
Neglect means a default or omission in the absence of a demand whereas 'refuse'
means a failure to maintain or a denial of obligation to maintain after demand.
A neglect or refusal to maintain may be by words or by conduct. It may be
expressed or implied. Neglect or refusal may mean something more than mere
failure or omission. Burden of proving neglect is on the claimant.
The expression wilful negligence is a question of law though it has to be
decided on given facts. 'Wilful' means designedly, deliberately of set purpose,
that is to say, the mind and the overt action moving together.
When there is duty to maintain, mere failure or omission may amount to neglect
or refusal. Maintenance means appropriate food, clothing and lodging.
Person claiming maintenance must be unable to maintain himself or
herself:As the object of Section 125 of the Code is mainly to prevent vagrancy; the
requirement to pay maintenance should be only in respect of persons who are
unable to maintain themselves. The inability of the wife to maintain herself is
a condition precedent to the maintainability of her application for maintenance.
As per Section 125(1) (a) of the Code, maintenance to a wife can be granted when
she is unable to maintain herself. Maintenance means appropriate food, clothing
and lodging. By the phrase 'unable to maintain herself', it is not meant that
she should be absolutely destitute and should be on the street, should beg and
be in tattered clothes.
The maintenance has to be determined in the light of the standard of living of
the person concerned. The amount of maintenance should be such that the woman
should be in a position to maintain herself and that it should not be much below
the status which she was used to at the place of her husband.
The wife need not specifically plead that she is unable to maintain herself. The
wife who is hale and healthy and is adequately educated to earn for herself but
refuses to earn and claims maintenance from her husband is entitled to claim
maintenance but that her refusal to earn under the circumstances would
disentitle her to get full amount of maintenance.
Special requirements where maintenance is claimed by wife:
- The wife must not be living in adultery:
As per Section 125(4) of the Code of Criminal Procedure, no wife shall be
entitled to receive an allowance for the maintenance or the interim
maintenance and expenses of proceeding, as the case may be, from her husband
under Section 125 if she is living in adultery. The term living in adultery has been
consistently held to mean an outright adulterous conduct where the wife lives in
a quasi-permanent union with the man with whom she is committing adultery.
- Wife must not refuse without sufficient reasons to live with her
According to' Section 125(4) of the Code of Criminal Procedure, no wife shall be
entitled to receive an allowance for the maintenance from her husband, if she
refuses to live with her husband. Wife must not refuse to live with her husband
without sufficient reason to get maintenance. What could be considered as a
sufficient reason for the wife's refusal to live with her husband would depend
upon the facts and circumstances in each case.
Civil Court's finding as to desertion by wife is binding on the criminal Court
hearing petition for maintenance. But, if the civil Court comes to hold, while
directing divorce, that the wife is not entitled to maintenance, it would not
deprive her of her right to claim maintenance in a criminal Court though the
criminal Court has to consider the decision of the civil Court. In the same way
the civil Court's finding on a fact on which interim maintenance is rejected by
it is not binding on the criminal Court.
As per explanation to Section 125(3) of the Code, if a husband has contracted
marriage with another woman or keeps a mistress, it shall be considered to be a
just ground for his wife's refusal to live with him.
- The wife must not be living separately by mutual consent:
As per Section 125(4) of the Code of Criminal Procedure, no wife shall be
entitled to receive an allowance for the maintenance from her husband if they
are living separately by mutual consent.
A divorced wife cannot be characterised as a wife living separately by mutual
consent. A divorced wife is a person who lives separately from her former
husband by virtue of a change in status consequent upon the dissolution of the
A divorce decree by mutual consent to live separately cannot disentitle the wife
to claim maintenance. The concept of living separately by mutual consent arises
so long as the marriage subsists and the parties agree to live separately by
consent. Where the marital relations have been terminated by an agreement, the
wife would be entitled to claim maintenance from her ex-husband so long she
remains unmarried and is unable to maintain herself. However, in the case of
divorce by mutual consent if the wife had relinquished her right to maintenance,
she cannot later claim maintenance.
DNA Test for determination of paternity cannot be directed in a petition under
Section 125.—In a proceeding under Section 125 of Cr.P.C. the Magistrate was not
justified in directing DNA tests of the child to determine paternity.
On failure to pay maintenance detention in prison could not exceed one month:
A warrant has to be issued under Section 125 (3) of the Code for payment of
maintenance, when an application is made by the person who has been held
entitled to maintenance under Section 125 of the Code.
When such a warrant is issued for making payment of maintenance, it has to be
levied as the amount due in the manner provided for levying fines and if this
warrant is not responded by making the payment, then the Magistrate can order
imprisonment and the imprisonment in no case can exceed one month. Therefore, it
is immaterial whether there were arrears of twelve months or of any other