1. Certain words omitted by Act 50 of 2001, s. 2 (w.e.f. 24-9-2001).
2. Ins. by s. 2, ibid. (w.e.f. 24-9-2001).
3. Subs. by s. 2, ibid., for sub-section (2) (w.e.f. 24-9-2001).
4. Subs. by s. 2, ibid., for “allowance” (w.e.f. 24-9-2001)
5. Subs. by Act 50 of 2001, s. 2, for “allowance” (w.e.f. 24-9-2001).

Introduction 

This provision is enacted as a measure for social justice, specifically to protect women, children, and other vulnerable individuals such as old and infirm parents. It falls within the constitutional scope of Article 15(3), which promotes the interests of marginalized groups, and is reinforced by Article 39.

Section 125 of the Code of Criminal Procedure gives effect to the natural and fundamental duty of a man to maintain his wife, children, and parents when they are unable to maintain themselves. This duty is applicable irrespective of the personal law governing the parties involved.

While the personal law of the parties is relevant for determining the validity of the marriage, it cannot be completely excluded from consideration. However, it is important to note that the provisions of Section 125 are applicable to all individuals, regardless of their religion. The Supreme Court has clarified that Section 125 is also applicable to Muslim women.

Subsequently, the Parliament enacted the Muslim Women’s (Protection of Rights on Divorce) Act, 1986, which provides additional remedies for Muslim women. However, the use of Section 125 under this Act requires the consent of the husband.

The jurisdiction of the Magistrate under Section 125 was considered in relation to the conditions mentioned in Section 5 of the Muslim Women’s (Protection of Rights on Divorce) Act, 1986, in the case of Danial Latifi v UOI. The validity of the Act was upheld, and it was observed that the provisions of Section 125 CrPC could be invoked under the Act when parties agree, and the parameters and considerations are the same as those in Section 125 CrPC.

There have been cases where the question arose whether the application for maintenance under Section 125 should be restricted to the date of divorce if an application under Section 3 of the Act for grant of mehar and return of gifts was filed after the divorce. The Supreme Court held that seeking such an option does not affect the continuation of proceedings under Section 125. The Magistrate retains the power to grant maintenance to a divorced Muslim woman under Section 125, irrespective of any application under Section 3 of the Act.

There is no inconsistency between Section 125 and the Hindu Adoptions and Maintenance Act, 1956. The scope of these laws is different. Section 125 provides a summary remedy applicable to all individuals, whereas the Hindu Adoptions and Maintenance Act allows for a civil suit for maintenance even after compromise in Section 125 proceedings.

Chapter IX, which includes Section 125, provides a self-contained remedy of a civil nature. The findings of a Magistrate under this chapter are not final, and parties can further pursue their rights in a Civil Court.

If the petitioner has already chosen the alternative remedy of a regular civil suit, the proceeding under Section 125 CrPC cannot continue. The judgment of a Civil Court takes precedence over that of a Criminal Court.It’s important to note that this statutory right does not cover the same scope as the civil liability of a person to maintain their dependents under personal law. Under the Hindu Adoptions and Maintenance Act, 1956, a child can claim maintenance only until they reach adulthood. Similarly, a father’s obligation to maintain a son ceases after the son reaches puberty, and a daughter’s maintenance obligation ends upon her marriage unless she is disabled by infirmity or disease. The Hindu wife’s entitlement to maintenance under Section 18(1) of the Hindu Adoptions and Maintenance Act, 1956, is different from the scope of Section 125 of the Cr.P.C., and both provisions can coexist. Any maintenance order under Section 125 CrPC does not foreclose the remedy provided by Section 18(2) of the Hindu Adoption and Maintenance Act, 1956, and vice versa. Additionally, under Section 20(1) of the Hindu Adoptions and Maintenance Act, 1956, an aged or infirm parent who is unable to maintain themselves is entitled to maintenance. Muslim law also imposes an obligation to maintain needy parents, with certain exceptions. Maintenance during the idaat period of a divorced wife is governed by Muslim Personal Law (Shariat).

It’s important to note that this statutory right does not cover the same scope as the civil liability of a person to maintain their dependents under personal law. Under the Hindu Adoptions and Maintenance Act, 1956, a child can claim maintenance only until they reach adulthood. Similarly, a father’s obligation to maintain a son ceases after the son reaches puberty, and a daughter’s maintenance obligation ends upon her marriage unless she is disabled by infirmity or disease. The Hindu wife’s entitlement to maintenance under Section 18(1) of the Hindu Adoptions and Maintenance Act, 1956, is different from the scope of Section 125 of the Cr.P.C., and both provisions can coexist. Any maintenance order under Section 125 CrPC does not foreclose the remedy provided by Section 18(2) of the Hindu Adoption and Maintenance Act, 1956, and vice versa. Additionally, under Section 20(1) of the Hindu Adoptions and Maintenance Act, 1956, an aged or infirm parent who is unable to maintain themselves is entitled to maintenance. Muslim law also imposes an obligation to maintain needy parents, with certain exceptions. Maintenance during the idaat period of a divorced wife is governed by Muslim Personal Law (Shariat).

However, it should be noted that the remedy under Section 125 of the Code of Criminal Procedure is not barred due to a decision by a Civil Court under the Hindu Adoptions and Maintenance Act.

In interpreting both constitutional and statutory provisions, the court exercises discretion in determining the proper relationship between subjective and objective purposes of the law. Section 125 was introduced to alleviate the agony, anguish, and financial suffering of a woman who has left her matrimonial home for reasons provided in the provision. The court aims to make suitable arrangements for her and her children so that they can sustain themselves. The concept of sustenance does not imply leading a life of deprivation but rather enjoying a standard of living similar to what they would have had in the matrimonial home.

Various laws applicable to matters of maintenance for wives, parents, sons, daughters, and other dependents, as well as the Acts covered within the jurisdiction of the Family Courts established under the provisions of the Family Courts Act, 1984, are as follows:

1. Marriage Validation Act, 1892
2. Guardians and Wards Act, 1890
3. Converts Marriage Dissolution Act, 1866
4. Divorce Act, 1869
5. Christian Marriage Act, 1872
6. Anand Marriage Act, 1909
7. Dowry Prohibition Act, 1961
8. Special Marriage Act, 1954
9. Hindu Marriage Act, 1955
10. Hindu Minority and Guardianship Act, 1956
11. Parsi Marriage and Divorce Act, 1936
12. Dissolution of Muslim Marriage Act, 1939
13. Muslim Women Personal Law (Shariat) Application Act, 1937
14. Muslim Women (Protection of Rights on Divorce) Act, 1986
15. Muslim Women (Protection of Rights on Divorce) Rules, 1986
16. Foreign Marriage Act, 1969
17. Code of Criminal Procedure, 1973 (Sections 125 to 128)
18. Maintenance Orders Enforcement Act, 1921
19. Protection of Women From Domestic Violence Act, 2005
20. Protection of Women From Domestic Violence Rules, 2006
21. Maintenance and Welfare of Parents and Senior Citizens Act, 2007
22. Prohibition of Child Marriage Act, 2006

In addition to these Acts, judicial pronouncements by courts have also contributed to the interpretation and development of laws related to maintenance.

-Nature of proceeding :

The provisions under Section 125 of the Code of Criminal Procedure (CrPC) are considered as social justice legislation. These provisions require a distinct approach in dealing with cases under Section 125. It is necessary to shift from an “adversarial” litigation approach to a context-sensitive adjudication approach. This means that the focus should be on the social context and the aim of providing justice to the marginalized and needy individuals. Two notable cases that emphasize this approach are the judgments in Badshah vs. Urmila Badshah Godse & Another (2014) 1 SCC 188 and Dwarika Prasad Satpathi vs. Bidyut Prava Dixit (AIR 1999 SC 3348).

Furthermore, it is important to note that the nature of the proceedings under Section 125 of the CrPC is civil in nature. Although it falls within the domain of criminal procedure, the jurisdiction of the magistrate under Chapter IX of the CrPC is not strictly criminal jurisdiction. The proceedings under Section 125 are considered civil proceedings. A relevant case supporting this interpretation is Vijay Kumar Prasad vs. State of Bihar (2004) 5 SCC.

Notes on Section 125 

s.125(1) If any person having sufficient means neglects or refuses to maintain-

Section 125(1) of the Code of Criminal Procedure, 1973 states that if a person with sufficient means neglects or refuses to maintain his dependents, he can be held liable for maintenance. The term “sufficient means” does not only refer to the possession of property or employment but encompasses an individual’s natural capacity to earn and support themselves. It implies that a person who is healthy and able-bodied should be able to provide for their wife, children, and parents. Even if a person is insolvent, a professional beggar, a minor, or a monk, as long as they are physically capable of sustaining themselves, they have a duty to support their dependents.

The words “neglects or refuses to maintain” in the provision indicate that there is an inherent obligation on the person to fulfill their duty of maintenance. This neglect or refusal can be expressed through words or demonstrated through conduct. It can be either explicit or implicit. While generally, “neglect or refusal” implies more than a mere failure or omission, in cases of maintenance, even a failure to fulfill the duty of maintenance can be considered as neglect or refusal. Once it is established that a person has neglected to maintain their wife, children, or parents, the Magistrate has the authority to issue orders for maintenance under Section 125.

Therefore, Section 125 of the Code of Criminal Procedure provides a legal recourse for dependents who have been neglected or refused maintenance by a person who possesses sufficient means to support them.

WHO CAN CLAIM MAINTENANCE

S.125 (1)(a) his wife, unable to maintain herself, 

read along with  Section 125(1) Explanation (b) “wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

-Strict Proof of Marriage Not Required for Maintenance

(Chanmuniya vs. Virender Kumar Singh Kushwaha, JT 2010 (11) SC 132):

⦁ The term ‘wife’ should be given a broad and expansive interpretation.

⦁ It should include cases where a man and woman have been living together as husband and wife for a reasonably long period of time.

⦁ Strict proof of marriage should not be insisted upon as a pre-condition for maintenance under Section 125 CrPC.

-‘Wife’ in Section 125 CrPC and Hindu Adoptions & Maintenance Act Means Legally Married Wife

(Savitaben vs. State of Gujarat, (2005) 3 SCC 636):

⦁ The term ‘wife’ in Section 125 CrPC and the Hindu Adoptions & Maintenance Act refers specifically to a legally married wife.

⦁ The scope of Section 125 CrPC cannot be enlarged by introducing an artificial definition to include a woman not lawfully married.

⦁ A woman who is not legally married is not entitled to maintenance under Section 125 CrPC.

-Presumption of Marriage in Long-Term Live-in Relationships

(Madan Mohan Singh vs. Rajanikant, AIR 2010 SC 2933):

⦁ In the case of live-in relationships that continue for a long time, they cannot be regarded as mere casual or temporary arrangements.

⦁ There is a presumption of marriage between the parties involved.

-Preconditions for Live-in Relationships to be Treated as Marriage (D. Velusamy v. D. Patchaiammal, AIR 2011 SC 479):

⦁ Not all live-in relationships will be considered as marriages.

⦁ To be treated as a marriage under the Protection of Women from Domestic Violence Act, 2005, live-in relationships must fulfill the following conditions:

1. a) The couple must hold themselves out to society as being akin to spouses.
2. b) They must be of legal age to marry.
3. c) They must be otherwise qualified to enter into a legal marriage, including being unmarried.
4. d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.

-Presumption in Favor of Marriage:

⦁ Sections 50 and 114 of the Evidence Act establish that the law presumes in favor of marriage and against concubinage when a man and woman have continuously cohabited for a significant period.

⦁ However, this presumption is rebuttable, and if there are circumstances that weaken or destroy the presumption, the court cannot ignore them. (Shobha Hymavathi Devi vs. Setti Gangadhara Swamy, (2005) 2 SCC 244)

Standard of Proof of Marriage in Maintenance Cases:

⦁Amit Agarwal vs. State of UP, 2007 (1) ALJ 277 (All) and Bhirari Singh vs. State of UP, 1990 Cr LJ 844 (All) hold that Section 125 CrPC proceeds on the basis of de facto marriage, not marriage de jure. The existence of a conjugal relationship is the foundation for the payment of maintenance under Section 125 CrPC.

⦁ Laws enacted as measures of social welfare, like Section 125 CrPC, should be interpreted in a manner that ensures their enforcement, regardless of minor crucial obstacles.

⦁ Section 125 CrPC is a social welfare legislation meant for the benefit of destitute women, and its operation should not be obstructed or hindered due to claims about the marriage being void, voidable, or irregular.

In summary, there is a presumption in favor of marriage when a man and woman have continuously cohabited. However, the standard of proof of marriage can vary depending on the context. While religious rites are considered fundamental for traditional Hindu marriage, marriages based on customs that do not require such rites can still be legally recognized. In maintenance cases, the existence of a de facto conjugal relationship is crucial, and obstacles related to the validity or irregularity of the marriage should not impede the operation of Section 125 CrPC, which is intended for the welfare of destitute women.

-Maintenance to a Muslim Wife 

-Mohd. Ahmed Khan v. Shah Bano Begum (1985 SC)

⦁ Section 125 is a secular provision: Section 125 of the Code of Criminal Procedure (CrPC) is a secular provision that applies to all individuals regardless of their religion. It provides a mechanism for speedy proceedings to ensure maintenance and is based on principles of equity and justice.

⦁ Muslim wife entitled to benefits of Section 125: The court held that a Muslim wife cannot be deprived of the benefits of Section 125. The term ‘wife’ in Section 125 includes a Muslim law wife, which means that a Muslim wife can claim maintenance not only under Muslim personal law but also under Section 125 of the CrPC.

⦁ Maintenance beyond iddat period: The CrPC does not prohibit the payment of maintenance to a Muslim woman beyond the period of iddat (the waiting period after divorce). Section 125 expressly states that maintenance shall be provided until the wife remarries. As Section 125 is an enabling provision with the social purpose of preventing destitution and vagrancy, it was held that maintenance should be given to Muslim wives even after divorce until they remarry.

⦁ Enactment of The Muslim Women (Protection of Rights on Divorce) Act, 1986: After the Mohd. Ahmed Khan v. Shah Bano Begum case, there was controversy and public outcry. In response, the Parliament enacted The Muslim Women (Protection of Rights on Divorce) Act, 1986. This Act restricted the direct application of Section 125 for seeking maintenance by Muslim women. According to Section 5 of the Act, a Muslim woman can only approach Section 125 with the consent of her husband.

⦁ Applicability of Shah Bano’s case guidelines: The guidelines laid down in the Shah Bano case will apply only when both the husband and wife agree to proceed under Section 125 of the CrPC. If the husband does not agree to the Section 125 hearing, the case would be heard under The Muslim Women (Protection of Rights on Divorce) Act, 1986.

Danial Latifi and Another v. Union of India (2001 SC)

⦁ Interpretation of Section 3(1) of The Muslim Women (Protection of Rights on Divorce) Act, 1986: The court held that a literal construction of Section 3(1) would render the Act unconstitutional, while a liberal construction would make it applicable. The word ‘within’ in Section 3(1)(a) does not mean ‘during’ or ‘for,’ but implies that the husband, upon divorce, must make a reasonable and fair provision and pay maintenance to the wife before the expiry of the iddat period. The Act does not specify that maintenance is to be paid only for the iddat period; rather, the husband is obligated to pay maintenance until the wife remarries.

⦁ Continuation of maintenance beyond iddat period: The court emphasized that there is no reason why a husband under Muslim law should be relieved of his liability to maintain his wife after the expiry of the iddat period. The obligation to provide maintenance continues even after the iddat period ends.

⦁ Validity of Section 5 of The Muslim Women (Protection of Rights on Divorce) Act, 1986: The court did not declare Section 5 unconstitutional. It clarified that even if proceedings are conducted under this Act, they would be conducted before the same Judicial Magistrate of the first class who would have handled proceedings under Section 125 of the Code of Criminal Procedure (CrPC). The proceedings under the Act are speedier, similar to those under Section 125 of the CrPC.

Shabana Bano v. Imran Khan (2009 SC)

⦁ Jurisdiction of Family Courts: The court held that the Family Courts Act overrides other provisions, and where a Family Court is established, it has exclusive jurisdiction over family disputes, including maintenance proceedings under Section 125 of the CrPC.

⦁ Direct filing of petition under Section 125: A Muslim woman can directly file a petition under Section 125 of the CrPC before a Family Court, and Section 5 of The Muslim Women (Protection of Rights on Divorce) Act, 1986 will not apply in such cases.

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

⦁ Bigamous child entitled to maintenance: Despite the illegality of a bigamous marriage under Section 11 of the Hindu Marriage Act, 1955, if a Hindu male and female live together as husband and wife for a substantial period of time after such a marriage, the child born from that union is considered legitimate under Section 16(1) of the Act. Consequently, the child is entitled to maintenance under Section 125 of the Criminal Procedure Code (CrPC). [Case reference: Bakulabai vs. Gangaram, (1988) SCC 537]

⦁ Minor daughter entitled to interim maintenance: In cases where a minor daughter reaches the age of majority during the pendency of an application under Section 125 CrPC, it has been held that she is entitled to receive interim maintenance until the date of attaining majority. [Case reference: Shahbuddin vs. State of UP, 2006(1) ALJ 372(All)]

⦁ Major unmarried girl entitled to maintenance from parents: Although Section 125 CrPC does not impose a legal obligation on parents to maintain their children beyond the age of majority, a combined reading of Section 20(3) of the Hindu Adoptions and Maintenance Act, 1956 and Section 125 CrPC grants the right to maintenance to an unmarried major daughter from her parents. [Case reference: Jagdish Jugtawat vs. Manjulata, 2002 SCC (criminal) 1147(SC)]

These cases highlight the provisions and interpretations that ensure the rights of children, including those born out of bigamous marriages or reaching adulthood during maintenance proceedings. The court recognizes the importance of providing financial support to children, whether they are legitimate or illegitimate, minor or major, and ensures that they receive the necessary maintenance for their well-being.

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:

It states that if a person who has sufficient means neglects or refuses to maintain his minor female child, the Magistrate may order the child’s father to provide an allowance for her maintenance until she reaches the age of majority (18 years), but with an additional condition.

The additional condition is that the Magistrate must be satisfied that the husband of the minor female child, if she is married, does not have sufficient means to maintain her. In other words, if the minor female child is married and her husband lacks the financial resources to support her, the responsibility of maintenance falls back on her father.

Example:
Let’s consider an example to illustrate this provision. Suppose there is a minor girl named Anaya, who is 16 years old and married. Anaya’s father, Mr. Singh, neglects his responsibility to maintain her. Anaya’s husband, Mr. Verma, is currently unemployed and unable to support her financially.

In this scenario, Anaya’s mother can file an application under Section 125 CrPC on behalf of Anaya, seeking maintenance from Mr. Singh. The Magistrate, upon reviewing the case, determines that Mr. Verma, Anaya’s husband, does not possess sufficient means to maintain her.

In such a situation, the Magistrate can order Mr. Singh, Anaya’s father, to provide an allowance for Anaya’s maintenance until she attains the age of majority (18 years). This ensures that Anaya’s financial needs are met despite her being married and her husband’s inability to support her financially.

It’s important to note that the Magistrate will consider the specific circumstances of the case and the financial capabilities of both the husband and the father before making a decision regarding maintenance.

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(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, 

Section 125(1)(c) of the Code of Criminal Procedure (CrPC) states that a person is obligated to maintain their legitimate or illegitimate child (not being a married daughter) who has attained majority, if the child is unable to maintain themselves due to any physical or mental abnormality or injury.

Here are some key points regarding this provision:

⦁ Maintenance for children with disabilities: This provision recognizes that children, whether legitimate or illegitimate, who have attained majority but suffer from physical or mental abnormalities or injuries may be unable to support themselves. In such cases, the person responsible for the child’s maintenance, typically the father, is legally obliged to provide financial support.

⦁ Irrelevance of legitimacy: The provision does not differentiate between legitimate and illegitimate children. Both categories of children have the right to seek maintenance from their father if they are unable to maintain themselves due to a physical or mental abnormality. Legitimacy or illegitimacy does not impact the entitlement to maintenance in such cases.

⦁ Focus on the child’s inability to maintain themselves: The key criterion for maintenance under this provision is the child’s inability to support themselves due to a physical or mental abnormality or injury. The focus is on the child’s condition and their need for financial support, rather than other factors such as their age or marital status.

Overall, Section 125(1)(c) aims to ensure that children who have attained majority but are unable to maintain themselves due to physical or mental limitations receive the necessary financial support from their parent, regardless of their legitimacy or illegitimacy.

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(d) his father or mother, unable to maintain himself or herself,

Section 125(1)(d) of the Code of Criminal Procedure (CrPC) states that a person is obligated to maintain their father or mother if they are unable to maintain themselves.

Here are some key points regarding this provision:

⦁ Gender-neutral interpretation: The expression “his father or mother” mentioned in the section should be interpreted to also include “her father or mother.” This means that both sons and daughters have a moral and legal obligation to maintain their parents.

⦁ Moral duty to maintain parents: Indian society places a moral duty on children to support and maintain their parents. This duty applies equally to sons and daughters. The court, when ordering maintenance in favor of a mother or father, considers whether the married daughter has sufficient means of her own independent of her husband’s income, and whether the father or mother is unable to maintain themselves.

⦁ Remedy against one or more children: If there are multiple children, the parents can seek maintenance from any one or more of them. This means that the parents have the right to claim maintenance from any child who has the means to support them.

⦁ Step-parents and maintenance: In the case of a childless stepmother, she may claim maintenance from her stepson if she is a widow or if her husband is incapable of maintaining her. However, if the stepmother has her own natural born sons and daughters and her husband is alive, she cannot claim maintenance from her stepson.[Kirtikant D. Vadodaria v. State of Gujarat, 1996 SC]

⦁ Specific right to claim maintenance: The parental obligation to maintain and bring up children is not a precondition for parents to claim

maintenance under this section. The parents have a specific right to seek maintenance if they are unable to support themselves, irrespective of their ability to maintain their children.

In summary, Section 125(1)(d) recognizes the moral and legal duty of children, both sons and daughters, to maintain their parents if the parents are unable to support themselves. The provision aims to ensure that parents who are incapable of self-maintenance receive financial support from their children, and parents can seek maintenance from any child who has the means to provide it.

Provided 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 of 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.

The proviso states that the Magistrate, during the ongoing proceedings related to the monthly maintenance allowance, has the authority to order the person responsible to pay a monthly allowance for interim maintenance to their wife, child, father, or mother. Additionally, the Magistrate can also order the person to pay the reasonable expenses associated with the legal proceedings. The application for the interim maintenance allowance and expenses should ideally be disposed of within sixty days from the date of serving notice of the application to the person concerned.

⦁ Interim Maintenance Allowance:

During the pendency of the proceedings for the monthly maintenance allowance, the Magistrate can order the responsible person to provide a monthly allowance for the interim maintenance of their dependents. This interim allowance aims to ensure the financial well-being of the dependents during the ongoing legal process.

Example: Mr. Kumar has filed an application for monthly maintenance against his wife, Mrs. Kumar, who is currently unemployed. The court proceedings are ongoing, and in the meantime, the Magistrate orders Mr. Kumar to pay a monthly interim maintenance allowance of Rs. 25,000 to Mrs. Kumar to cover her living expenses until a final decision is reached.

⦁ Expenses of the Proceeding:

The Magistrate has the power to order the person responsible to pay the reasonable expenses associated with the legal proceedings. These expenses may include legal fees, court charges, or any other costs incurred during the course of the case.

Example: In a maintenance case filed by a child against their father, the Magistrate orders the father to pay the expenses of the legal proceedings, such as the child’s legal representation, court fees, and other reasonable costs required for the proper presentation of the case.

⦁ Timely Disposal of Interim Maintenance Application:

The provision also emphasizes that the application for the interim maintenance allowance and the expenses of the proceeding should ideally be disposed of within sixty days from the date of serving notice to the person responsible. This ensures a timely resolution of the application, providing relief to the dependents at the earliest.

Example: Mrs. Sharma files an application for interim maintenance and expenses of the proceeding under Section 125 CrPC against her husband, Mr. Sharma. The Magistrate takes prompt action and ensures that the application is heard and disposed of within sixty days from the date of serving notice to Mr. Sharma, allowing for a swift resolution of the interim maintenance matter.

Case Law: Savitri Vs. Govind Singh Rawat, (1985) 4 SCC 337

In the case of Savitri Vs. Govind Singh Rawat, the issue at hand was whether a magistrate can pass an ex parte interim order of maintenance under Section 125 of the CrPC, pending the service of notice of the application, subject to modification or cancellation after the respondent is heard. The Court held that in appropriate cases, such an ex parte order can be passed, but the magistrate must insist on the filing of an affidavit by or on behalf of the applicant, stating the grounds supporting the claim for interim maintenance. This requirement ensures that there is a prima facie case for making such an order.

The Court further observed that if a Civil Court can pass interim orders based on affidavits, there is no reason why a magistrate should not rely on them for the purpose of issuing directions regarding the payment of interim maintenance. The filing of an affidavit helps the magistrate to satisfy themselves regarding the merits of the case and the need for interim maintenance.

Therefore, based on the judgment in Savitri Vs. Govind Singh Rawat, it is established that in appropriate cases, a magistrate may pass an ex parte interim order of maintenance under Section 125 of the CrPC, pending the service of notice of the application. However, the magistrate must insist on the filing of an affidavit stating the grounds supporting the claim for interim maintenance, ensuring there is a prima facie case for such an order.

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(2) Any such allowance for the maintenance or interim maintenance and expenses of 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.

-Granting Maintenance from the Date of Order or Application:

⦁ The magistrate has the discretion to grant maintenance either from the date of the order or from the date of the application for maintenance or interim maintenance and expenses of proceedings.

⦁ The magistrate must record the reasons for the choice of the date in the order.

⦁ If the magistrate passes an order granting maintenance from the date of the application without recording reasons, the order is still valid, and the maintenance is payable from the date of the application.

⦁ Section 354(6) of the Code of Criminal Procedure (CrPC) requires every final order made under Section 125 to contain the point or points for determination, the decision thereon, and the reasons for the decision.

Example: In a maintenance case, the wife filed an application seeking maintenance from her husband. The magistrate, after considering the circumstances, passes an order granting maintenance from the date of the application, stating compelling reasons for the decision.

-Contents of Final Order

⦁ Every final order made under Section 125, Section 145, or Section 147 of the CrPC should contain the point or points for determination, the decision thereon, and the reasons for the decision.

⦁ Section 354(6) of the CrPC mandates the inclusion of these elements in the final order.

Example: In a maintenance case, the magistrate delivers a final order granting maintenance to the wife. The order clearly states the specific issues considered, the decision made by the magistrate, and the reasons supporting the decision, as required under Section 354(6) of the CrPC.

-Interim Maintenance Order is Not an Interlocutory Order

⦁ An order granting interim maintenance is not considered an interlocutory order.

⦁ Revision is not barred under Section 397(2) of the CrPC in relation to an order granting interim maintenance.

Example: In a maintenance case, the magistrate passes an order granting interim maintenance to the wife. The husband seeks to challenge this order by filing a revision petition, which is permissible as an order granting interim maintenance is not considered an interlocutory order under Section 397(2) of the CrPC.

-Compromise Does Not Result in a Final Order:

⦁ An order granting maintenance based on a compromise between the husband and wife is not considered a final order under Section 353 and 354 of the CrPC.

⦁ Consequently, if the compromise fails, the proceedings can be revived.

Example: In a maintenance case, the husband and wife reach a compromise and agree on a certain amount of maintenance. The magistrate passes an order based on this compromise. However, if the compromise fails and the agreed-upon maintenance is not paid, the wife can revive the proceedings and seek further maintenance.

Jaiminiben Hirenbhai Vyas & Another Vs. Hirenbhai Rameshchandra Vyas & Another, AIR 2015 SC 300

In this case, the issue before the Supreme Court was whether the court is required to record reasons for determining whether maintenance under Section 125 of the CrPC should be payable from the date of the order or from the date of the application.

The court held that Section 125(2) of the CrPC explicitly empowers the court to grant maintenance from the date of the order or from the date of the application. However, this provision must be read in conjunction with sub-Section (6) of Section 354 of the CrPC. According to Section 354(6), every final order made under Section 125 and other relevant sections must contain the points for determination, the decision thereon, and the reasons for such decision.

The court emphasized that Section 125 and Section 354(6) should be interpreted together, implying that the court is required to consider both options and choose a date based on the relevant facts of the case. The court stated that it is not appropriate or desirable for the court to simply state that maintenance should be paid from either the date of the order or the date of the application without providing reasons.

The court further explained that the purpose of this provision is to prevent vagrancy and destitution in society. Therefore, the court must carefully consider the options and apply its mind to the facts of the particular case when determining the effective date for the maintenance order.

In summary, the court held that the court must record reasons in support of its decision on whether maintenance under Section 125 should be payable from the date of the order or from the date of the application. This requirement ensures that the court applies its mind to the options and considers the relevant facts of the case. The purpose of the provision is to prevent vagrancy and destitution, and the court’s decision should align with this objective.

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(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 months allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may 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 date on which it became due:

-Failure to comply with the order:

⦁If a person fails to comply with an order for maintenance without sufficient cause, the Magistrate has the authority to take appropriate action.

-Issuing a warrant for levying the amount due:

⦁For every breach of the maintenance order, the Magistrate can issue a warrant to recover the unpaid amount. This warrant is executed in a manner similar to the process of levying fines.

-Sentencing to imprisonment:

⦁After the execution of the warrant, if any part or the whole of each month’s allowance for maintenance or interim maintenance, as well as expenses of the proceeding, remains unpaid, the person can be sentenced to imprisonment.

⦁ The term of imprisonment can extend up to one month or until the payment is made, whichever occurs sooner.

-Time limit for issuing a warrant:

⦁ No warrant can be issued for the recovery of any amount due under Section 125 unless an application is made to the court to levy such amount within one year from the date on which it became due.

⦁ This provision sets a time limit within which the application for recovery must be filed.

Example:

Suppose a Magistrate has passed an order for maintenance, directing a husband to pay a certain amount to his wife every month. However, the husband consistently fails to comply with the order and does not pay the maintenance amount for several months. In such a case, the wife can approach the Magistrate and file an application for the recovery of the unpaid maintenance.

Upon receiving the application, the Magistrate can issue a warrant to recover the unpaid amount. The warrant will be executed to levy the outstanding maintenance as if it were a fine. If even after the execution of the warrant, the husband still fails to pay the remaining amount, the Magistrate can pass an order for his imprisonment for a term of up to one month or until the payment is made.

It is important to note that the application for recovery must be made within one year from the date on which the maintenance amount became due. After this one-year period, no warrant can be issued for the recovery of the outstanding amount.

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, if he 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 wifes refusal to live with him.

Offer to maintain wife on condition of living together:

⦁ If the person ordered to pay maintenance offers to maintain his wife on the condition of her living with him, and she refuses to live with him, the Magistrate can consider the grounds of refusal stated by her.

Magistrate’s discretion:

⦁ The Magistrate has the discretion to consider the grounds of refusal and make an order under Section 125, even if the husband has made an offer to maintain the wife conditional upon living together.

Just ground for refusal:

⦁ The Magistrate can make an order for maintenance despite the husband’s offer if he is satisfied that there are just grounds for the wife’s refusal to live with him.

⦁ The term “just ground” refers to valid and reasonable reasons that justify the wife’s refusal to live with her husband.

Explanation:

⦁ If a husband has contracted marriage with another woman or keeps a mistress, it will be considered a just ground for the wife’s refusal to live with him.

⦁ This means that if the husband has entered into a marriage with another woman or maintains a relationship with a mistress, the wife is justified in refusing to live with him.

Example:

Let’s consider a scenario where a husband, who has been ordered to pay maintenance to his wife, offers to maintain her on the condition that she lives with him. However, the wife refuses to live with him due to his involvement with another woman or a mistress.

In such a case, the wife can state her grounds for refusing to live with the husband before the Magistrate. The Magistrate will then consider these grounds and determine if they are valid and justifiable. If the Magistrate is satisfied that the husband’s involvement with another woman or a mistress is a just ground for the wife’s refusal to live with him, the Magistrate can make an order for maintenance under Section 125, notwithstanding the husband’s offer.

It is important to note that each case is evaluated based on its specific facts and circumstances, and the Magistrate’s decision will depend on the evidence and arguments presented before them.

(4) 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 this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.

(5) On proof that any wife in whose favour an order has been made under this section in 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.

Living in adultery:

⦁ A wife is not entitled to receive maintenance under Section 125 if she is living in adultery.

⦁ Living in adultery refers to being involved in a sexual relationship outside of the marital relationship without the consent of the husband.

Refusal to live with husband without sufficient reason:

⦁ A wife is not entitled to maintenance if, without any sufficient reason, she refuses to live with her husband.

⦁ The refusal to live with the husband should be without a valid or justifiable reason.

Living separately by mutual consent:

⦁ If the husband and wife are living separately by mutual consent, the wife is not entitled to receive maintenance under Section 125.

Cancellation of the order:

⦁ If it is proven that the wife, who has been granted an order for maintenance under Section 125, is living in adultery or unreasonably refuses to live with her husband, or if they are living separately by mutual consent, the Magistrate has the authority to cancel the maintenance order.

Example:

Let’s consider a scenario where a husband has been ordered by the Magistrate to pay maintenance to his wife under Section 125. However, it is later proven that the wife is living in adultery or unreasonably refuses to live with her husband. Alternatively, if it is established that the husband and wife are living separately by mutual consent, the Magistrate has the power to cancel the maintenance order.

In such a case, if evidence is presented before the Magistrate demonstrating that the wife is engaged in an extramarital affair without the husband’s consent, or if it is shown that she unreasonably refuses to live with her husband, or if the couple is living separately by mutual consent, the Magistrate can exercise their authority to cancel the order for maintenance.

The decision to cancel the maintenance order will be based on the evidence and arguments presented before the Magistrate, and each case will be evaluated on its specific facts and circumstances.

Here are detailed notes on the provisions mentioned in Section 126 of the Code of Criminal Procedure (CrPC):

Jurisdiction of the Court:

Proceedings under Section 125 can be initiated against any person in any district based on the following criteria:

1. a) Where the person is located.
2. b) Where the person or his wife resides.
3. c) Where the person last resided with his wife or the mother of the illegitimate child.

The word “is” in this section is broader than “resides” and signifies the presence or existence of the person in the district when the proceedings are initiated.

Residence and Last Resided:

• Resides: It implies a proper animus (intention) of a person to stay at a given place for a particular length of time, depending on the circumstances of each case. It goes beyond a casual stay and requires a genuine intent to make a place one’s abode.
• Last Resided: It refers to the place where the person had his last residence, whether permanent or temporary.

Filing the Complaint:

A complaint for the grant of maintenance can be filed in the court within the jurisdiction where:

1. a) The person from whom maintenance is claimed resides.
2. b) The wife resides.
3. c) The husband last resided with the mother of the illegitimate child.

The interpretation of “resides” is broader, and it requires the physical presence of the person from whom maintenance is claimed in the district at the time of filing the application.

Recording of Evidence:

• All evidence in the proceedings should be taken in the presence of the person against whom the maintenance order is proposed, or in the presence of their pleader if personal attendance is dispensed with.
• The recording of evidence follows the procedure prescribed for summons cases.

Ex Parte Proceedings:

• If the Magistrate is satisfied that the person against whom the maintenance order is proposed is willfully avoiding service or neglecting to attend the court, the Magistrate can proceed to hear and determine the case ex parte.
• An ex parte order can be set aside if the person shows good cause for their failure to attend the court.
• The application to set aside the ex parte order must be made within three months from the date of the order, subject to the terms and conditions set by the Magistrate.

Power to Award Costs:

• The court dealing with applications under Section 125 has the power to make an order regarding costs.
• The order regarding costs is based on what the court deems just and fair in the particular case.

Example:

Suppose a wife files a complaint for maintenance against her husband under Section 125 of the CrPC. The husband had last resided with the wife in District A, but he has now moved to District B. The wife currently resides in District C. In this scenario, the complaint can be filed in the court within the jurisdiction of District A (where they last resided together), District B (where the husband now resides), or District C (where the wife currently resides).

During the proceedings, the court records the evidence in the presence of the husband or his pleader. If the husband willfully avoids service or neglects to attend the court, the court may proceed ex parte and make an order for maintenance. However, the husband can later apply to set aside the ex parte order if he shows good cause for his failure to attend the court within three months from the date of the order.

The court also has the power to award costs based on what it considers just and fair in the case.

1. Subs. by Act 50 of 2001, s. 3, for sub-section (1) (w.e.f. 24-9-2001).
2. Subs. by Act 50 of 2001, s. 3, for “maintenance” (w.e.f. 24-9-2001).
3. Subs. by s. 3, ibid., for “monthly allowance has been ordered” (w.e.f. 24-9-2001).
4. Subs. by Act 50 of 2001, s. 3, for “monthly allowance in pursuance of” (w.e.f. 24-9-2001).

Section 127 of the Code of Criminal Procedure allows for the alteration, cancellation, or variation of orders related to maintenance under Section 125. Here are the key points:

1.Alteration in Allowance:
Under Section 127(1), if there is proof of a change in the circumstances of the person receiving or paying monthly maintenance or interim maintenance under Section 125, the Magistrate may make alterations in the maintenance allowance.
The Magistrate has the discretion to decrease or increase the amount of maintenance based on the changed circumstances.
The alteration in the maintenance allowance will be effective from the date of the Magistrate’s order (not from the date of the application for alteration).
If there is an enhancement of the maintenance, the court that awarded the maintenance (not the execution court) can pass the order for enhancement.

Example: If a person who is paying maintenance experiences a significant decrease in income or faces financial difficulties, they can apply for a reduction in the maintenance amount based on their changed circumstances.

2.Cancellation or Variation of Orders:
According to Section 127(2), if a competent Civil Court decision requires the cancellation or variation of an order made under Section 125, the Magistrate must comply with the decision.
The term “decision” refers to the determination of a question or controversy on which the maintenance was sought and granted.
The Magistrate can cancel or vary the earlier maintenance order based on the decision of the Civil Court, and such cancellation or variation will have a prospective effect.
Example: If a competent Civil Court grants a divorce decree or determines that the maintenance order made under Section 125 is no longer applicable due to changed circumstances, the Magistrate can cancel or vary the maintenance order accordingly.

3.Cancellation of Maintenance Order after Divorce and Remarriage:
Section 127(3) states that if a woman who has been divorced remarries after the divorce, the Magistrate shall cancel the maintenance order as of the date of her remarriage.
If a divorced woman has received the whole sum payable under any customary or personal law applicable to the parties on divorce, the Magistrate can cancel the maintenance order accordingly.
The cancellation of the maintenance order can take effect from the date of the order or from the date of the expiry of the period for which maintenance has been actually paid.
Example: If a divorced woman remarries, she is not entitled to claim maintenance. Similarly, if the woman has received the full amount payable on divorce according to personal or customary law, the maintenance order can be cancelled.

4.Consideration of Maintenance Payments in Civil Court Decrees:
Section 127(4) requires the Civil Court, while making a decree for the recovery of maintenance or dowry, to take into account the sum already paid or recovered as monthly maintenance or interim maintenance under Section 125.
The Civil Court considers the amount paid as part of the monthly allowance for maintenance while making a decree for recovery.
Example: In a civil court proceeding for recovery of maintenance or dowry, if the person to whom monthly allowance for maintenance has been ordered under Section 125 has already received some amount as maintenance, the Civil Court will take that into account while determining the final decree.

1. Subs. by s. 4,ibid., for “maintenance” (w.e.f. 24-9-2001).
2. Subs. by s. 4, ibid., for “whom the allowance” (w.e.f. 24-9-2001).
3. Subs. by s. 4, ibid., for “allowance due” (w.e.f. 24-9-2001).

Section 128 of the Code of Criminal Procedure deals with the enforcement of orders of maintenance. Here are the key points:

Issuance of Order Copy:

• A copy of the order of maintenance or interim maintenance, along with the expenses of proceedings (if applicable), is to be given to the person in whose favour the order is made or to their guardian (if applicable) or to the person who is entitled to receive the maintenance allowance.
• The copy of the order is provided free of charge to the concerned person.

Example: If a court issues an order for maintenance in favour of a wife, a copy of the order will be given to the wife or her guardian, if any, or the person designated to receive the maintenance allowance.

Enforcement of the Order:

• The order of maintenance can be enforced by any Magistrate in any place where the person against whom the order is made can be found.
• The enforcing Magistrate needs to be satisfied about the identity of the parties involved and the non-payment of the maintenance allowance or expenses mentioned in the order.

Example: If a person fails to comply with a maintenance order and moves to a different district, the Magistrate in that district can enforce the order by taking appropriate actions to ensure payment of the maintenance allowance.