Chapter IX: Maintenance Of Wives, Children And Parents
The provision relating to maintenance of Wife, Children and Parents (section
125-128) is a measure for social justice and fall within the constitutional
sweep of Article 15 (3) [Ramesh Chandra Kaushal v. Veena Kaushal
41st Report of Law Commission, 1969:
The provision aims at preventing
starvation and vagrancy for neglected or divorced wives, abandoned children and
needy and helpless parents.
Applicability of the provision on Personal Laws
The provision is applicable to persons belonging to all religions and have no
relationship with the personal law of the parties, their nationality or domicile
(Nanak Chand v. Chandra Kishore
AIR 1970). But the personal law of the parties
is relevant for deciding the validity of the marriage and therefore cannot be
altogether excluded form consideration (Yamunabai v. Anantrao
The Constitutional Bench in Mohammad Ahmed Khan v. Shah Bano Begum AIR 1985,
opined that the said provision is truly secular in character and is different
from the personal law of the parties.
Section 125 confers a statutory right and is, therefore, not affected by
personal laws. Thus, a Shia wife under a muta marriage would be entitled to
maintenance under section 125, although she may not enjoy the right of
maintenance under Muslima Law
Section 125: Person Entitled to Claim Maintenance
- Wife (minor or major) unable to maintain herself.
Illustration (b) of section 125 (1)- wife includes a woman who has been divorced
or who has obtained divorced and not remarried.
Interpretation of wife by the Apex court for claim relief under section 125
Wife means only a legitimate or legally wedded wife. Legality of the marriage
would be governed by the personal law applicable to the parties (Yamunabai v.
Strict proof of marriage is not sine quo non in considering relief under section
125. However, man and woman must live together as husband and wife for
reasonably a long period of time (Chanmuniya v Virender Kumar Singh Kushwaha) &
Justice V.S. Malimath committee report 2003.
Under the old Code, a divorced wife was not entitled to maintenance but now they
are entitled (Shah Bano Begum Case). Further, a woman divorced before April 1,
1973 (date of coming into force of this code), could claim maintenance (Md.
Haneef v. Anisa Khatoon)
The standard of proof of marriage in section 125 proceeding is not as strict as
required in a trail for an offence under section 494 of IPC,1860 and the remedy
is summary in nature (Dwarika Prasad Satpathy case)
- To prevent vagrancy and destitution (Vimala v. Veera swamy)
- To provide speedy remedy for the supply of food, clothing and shelter to
Mino Child (legitimate or illegitimate) whether married or not, unable to
Illustration (a) of section 125 (1):
- A minor means a person who has not attained
age of majority according to Indian Majority Act, 1875.
- Interpretation of minor child by Apex Court for relief under section 125
- Minor includes female married daughter whose husband doesn't hve sufficient
means to maintain her
- No order of maintenance could be passed for child in the foetus
legitimate or illegitimate child (not being married daughter) is entitled
to claim maintenance even after attaining majority if by reason of any
physical or mental abnormality or injury it is unable to maintain itself.
A minor child could claim maintenance from father living abroad (Priyal v. Dr.
Pradeep K. Kamboj).
Father or Mother unable to maintain himself or herself
Interpretation of Father & Mother by Apex Court for relief under section 125
Children includes son as well as daughter so even daughter is liable to maintain
her parents (Vijaya Manohar Arbat Case)
Sec 3 (20) of General Clause Act, 1897, the word 'father' includes adoptive
father. So, adoptive father is also entitled to claim maintenance from the
children. Even, adoptive mother is entitled to claim maintenance (Baban v.
Parvatibai). However, Mother does not include Stepmother (Ramabai v. Dinesh)
But Supreme Court in Kirtikant v. State of Gujarat, held that a childless
stepmother may claim maintenance from her step son provided she is a widow or
her husband, if living, is also incapable of supporting and maintaining her.
Basis for the Claim of Maintenance
Sufficient means to maintain: An order under section 125 can only be passed if a
person 'having sufficient means' neglects to maintain the person or persons
claiming maintenance. If a person is abled then unemployment, insolvent or
professional beggar cannot be the grounds to get relieved from his obligation (Chander
Prakash v. Sheela Rani)
Neglect or Refusal to maintain: Neglect is used in a wider sense so as to
include disregard of duty whether willful or intentional (Ishar v. Soma Devi).
Offer of the husband to maintain his first wife on a condition of living her
with his second wife is neglect or refusal to maintain his first wife (Chand
Begum v. Hyder Baig)
Claimant must be Unable to Maintain himself or herself: If a wife is educated
and healthy but willfully refuses to earn and claims maintenance then she will
be entitled to maintenance but circumstance would disentitle her to get full
amount of maintenance. Children cannot refuse or neglect to maintain disabled
father or mother on the ground that they didn't fulfill the parental obligation.
Under section 125 (2), the Magistrate may, during the pendency of the
proceeding, allow reasonable interim maintenance and expenses of the proceedings
to the applicant. Provided that such application shall be disposed of within
sixty days from the date of service of notice of the application to such person.
Remedies for the Enforcement of Order of Maintenance
Section 125 (3) provides two modes of execution of maintenance order:
- Issue a warrant for levying fines
- Sentence such person to imprisonment for a term which may extend to one
month or until payment if sooner made
Provided that no such warrant shall be issued unless the application is made to
the court within a period of one year from the date on which such amount became
Wives not entitled to claim maintenance or interim maintenance
Section 125 (4) provides that no wife shall be entitled to maintenance if�
- Living in adultery: Isolated acts of adultery even if frequent, do not
amount to living in adultery.
- Refuses to live with her husband: Refusal must be without sufficient
- Living separately by mutual consent: Even in such cases children living
with mother can claim maintenance.
Quantum of Maintenance
Amendment Act no. 50 of 2001-no maximum limit for maintenance amount has been
fixed. Magistrate may order such monthly rate as he thinks fit. The rate may be
altered under section 127 based on change of circumstances.
Alteration and Cancellation of Maintenance Order
- Section 127 (1), an order of maintenance may be altered or cancelled upon change
- Section 127 (2) an order can be varied in consequence of any decision of a
competent civil court
- Section 127 (3) an order of maintenance may be cancelled when:
- wife remarries
- wife has received the whole sum under customary or personal law
- wife has voluntarily surrender her right to maintenance after her
Section 125 (5), the magistrate may, on proof, cancel an order of maintenance if
wife started living in adultery, refuses to live with her husband without
sufficient cause or if they are living separately by mutual consent.
Section 126: Procedure (Jurisdictional Rule)
Wife can sue her husband for maintenance:
- At any place where he is
- At the place where he or his wife resides
- At the place where he last resided with his wife or with the mother of
the child, in case the child is illegitimate
Section 126 (2) all evidences to such proceeding shall be taken in the present
of the person or his pleader (if attendance dispensed) against whom an order of
maintenance is proposed to be made and it shall be recorded in the manner of the
Provided that if person is willfully avoiding service or willfully neglecting to
appear then magistrate may proceed ex parte but such order may be set aside
within three months on sufficient cause being shown up.
Section 126 (3) the court dealing with an application under section 125 shall
have power to make such order as to costs as may be just.
The provision relating to maintenance under any personal law is separate and
distinct. There is no conflict between the two provisions. If a person has
already obtained maintenance under his or her personal law then magistrate while
fixing the amount of maintenance may take that into consideration while fixing
of quantum of maintenance under section 125 the code.
However, if the marriage is declared void under section 11 of HMA, 1955 then the
wife is not entitled to claim maintenance under this code. But she can claim
maintenance under section 25 of HMA, 1955
Section 125 (1) (d) mentions 'father' or 'mother', and does not use the word
'parents'. This means that the obligation to maintain father or mother is only
that of a legitimate child, and not that of an illegitimate child.
Nature of Maintenance Proceeding- It is civil in nature. An inquiry under
section 125-126 is not a trial, nor the result of such inquiry can be considered
as a conviction or acquittal. Therefore, section 300 of the code does not apply
and a second application under section 125 is not barred.
Period of Limitation: No, period of limitation has been prescribed for filing an
application for maintenance.
Consequences of the death of Husband: A claim for arrears of maintenance abates
on the death of the husband and cannot be thereafter enforced against his estate
(Ead Ali v. Lal Bibi)