Chapter16

Sec. 125 Cr.P.C

Maintenance under Sec.125 Cr.P,C

It is available to
all wives
Neglected, or discarded or divorced wives,
Children
Abandoned and helpless children,
belonging to any religion, community or nationality or having any
domicile against husband ,father or son
Jurisdiction
The Magistrate of the Ist class has the jurisdiction to entertain a
petition
As pointed by Krishna Iyer, in Bai Tahira Vs. Ali Hussain
Fissali, AIR 1979 SC 362,
to ameliorate the economic condition of neglected wives and
discorded divorcees

 It meant to serve social,economic, and moral

purpose
Applicability
It is applicable to minor children. The only
qualification is that the child must be unable
to maintain
section. 125, was confined to children who
were under the age of majority
Basis
Paternity is the basis of the obligation
legitimacy or illegitimacy is not the material

 Where ever the minor may be, father has the

obligation
Where some other person is entitled to the custody of
the child , ex; mother, guardian, or third party under the
order of the court, still the father has the obligation to
maintain
No Obligation , if wife refuses
A person is not obliged to pay maintenance to his wife,
who is on his invitation to live with him refuses to do so
without just cause
In Balbir Singh Vs. Hardeep Singh,82,Cr.L.J 1136 (1976)

Punjab & Haryana High Court

has laid down

 The father cannot compel

the natural mother, when the child is living with

her, to live with him, for maintenance
In such condition since he is the natural guardian his
obligation to maintain subsists.
Get Custody through court
If he wants to have the custody he must get the same
from the Court. He must provide maintenance till such
order is obtained
Obligation to maintain does not cease
merely because the child has attained the age of
discretion, but is living with the natural mother on
account of love and affection or attachment.

 Wife
Here the wife include unmarried divorced wife
Under the old Code wife did not include a
divorced wife. she was not entitled to maintenance.
Hence caused great injustice to several cases
Husband used to evade his obligation to
maintain her
A Muslim husband could successfully defeat an
order, by pronouncing divorce.
Where in she could claim maintenance through a
Court only till the completion of the period of
iddat

Under the New Code, She can claim maintenance

In KHURSHID Khan Vs. Husnabanu,1976 Cr.L.J. 1584
it was contendedthat
since under Muslim law, the divorced wife was
entitled to maintenance only during the period ,
therefore, provisions of sec.125 Cr.P.C were not
applicable to the parties governed by the Muslim
Personal Law
Bombay H.C rejected this contention and held that
Sec.125 Cr.P.C was applicable
to muslim wives as well as for all the divorced
wives

Parents
Sec.125 speaks of the father or mother,
it does not use the word parent
That is, the obligation to maintain is only
that of legitimate child
Illegitimate child has no obligation to
provide maintenance under Sec.125 Cr.P.C
A daughter too has no such obligation,
whether she is legitimate or Illegitimate
child

Nature of proceedings
Proceedings under Sec. 125 Cr.P.c are
criminal proceedings of the summary nature
But these Cr. Proceedings are of civil nature

orders as to costs
Sec.126(3) authorises the Court to make such orders as to costs,
If the Magistrate is satisfied that the person against whom an order for
maintenance is proposed to be made,
is willfully either avoiding
or neglecting to attend the court, He may proceed to hear exparte
power to set aside for good cause
He has also the power to set aside the exparte oder
within 3 months from the date, for good cause


Sec,125 and Personal law different
maintenance under any personal law is
separate and distinct from Cr.P.C
No conflict between the two provisions
A person may sue for maintenance Under
Sec.125 Cr.P.C.
If a person has already applied for maintenance
UNDER PERSONAL LAW, THE MAGISTRATE while fixing the
maintenance, may take into consideration
the quantum of maintenance under the
code

Civil court would also take into

consideration the amount of maintenance
fixed by the Magistrate Under Sec.125
Cr.P.C
Basis for claim
If a person refuses or neglects to maintain the
wife,children, father or mother , who has
sufficient means, he will be answerable to the
Court,, when a petition is filed under the Code
If he is capable of earning, he will be
considered to have sufficient means

 Since the basis for holding the husband liable

for maintenance of his wife is the notion that there
is a continuous obligation upon the husband to
support and maintain his wife, whenever he fails
to do so, he is deemed to have neglected
Maintenance of wife
It is not necessary to prove that valid
ceremonies of marriage have taken place
There is a presumption of marriage, if a man
and a women have a cohabitation as husband and
wife and have been so treated by the society

 In Sec.125 Cr.P.C the standard of

proof of marriage need not be so high
as is required In prosecution for bigamy
or proceedings under the Divorce Act,
Even if the marriage is void,
a wife is entitled to maintenance under
Sec.125, if factum of marriage is estd., or
presumption on account of prolonged
cohabitation is available

 When the claim of maintenance of wife may be

defeated
(a) If the wife is living in adultery Continuous
course of adulterous relationship
(b) if without sufficient reason she refuses to live
with her husband

Two valid grounds on which her living

separately from her husband is just :
(i) husband has contracted a second marriage
(ii) Husband keeps a mistress
Anything which a ground for any matrimonial relief
will be a just ground for living separately

 If the parties are living separately by mutual consent

Jurisdiction
A wife can sue her husband for maintenance

any place where he is

(ii) where he resides
(iii) where the wife resides
the place where the husband last resided along with his wife
(i) at

Cancellation of maintenance
where the divorced wife remarries (Sec.127(a)
(ii) where she voluntarily obtains divorce from her husband
and surrenders her right of maintenance (Sec.127
(I )

 Till Shah Banoos case

whole of the sum which under the customary
or personal law applicable to the parties was
payable on such divorce in clause (b) of
Sec.127(3)
were thought to indicate dower or mahr under
Muslim law
Some thought that
once a muslim husband has divorced his wife and
had paid her dower no maintenance order could
be passed against him under Sec.125 Cr.P.c

The purpose of Sec.127 (3)(b) is simply that

a wife cannot be allowed double benefit, one by the
customary or the personal law and
other by the payment of maintenance under
Sec.125. But if the former is insufficient,
the court has the power to award maintenance
undesec.125
Execution of maintenance
Sec125(3) two modes of execution
(a) Issue of warrant for levying fines
(b)) Sentence of fine which may extend to one month
till paymant is made

 The proceedings cannot be dismissed on the -ground of

non- appearance
Court is bound to enquire the reasons for non-payment
of maintenance and should issue a warrant for levying
dues
When a issue of warrant is made for the recovery of
arrears of maintenance, no notice need be served by the
wife against the husband
On a breach of any order of maintenance, the Magistrate
may issue warrant for levying the amount of fine
No warrant can be issued for arrears of

maintenance

 Enforcement by attachment of
husbands property
Imprisonment for a term which may
extend to one month
Jail term for one year arrears
If a person sleeps over the order
and
does not care to enforce with in one
year she does not deserve the
sympathy of the court