RIGHT OF MAINTENANCE TO INDIAN WOMEN

I Introduction
CRIMINAL PROCEDURE Code (Cr P C) section 125 provides for speedy,
effective and inexpensive remedy against persons who neglect or refuse to
maintain their wives, children and parents.
The section applies to wives belonging to any religion. It has no relationship
with personal laws of the parties.1
Formerly the matter of maintenance was dealt with under section 488, CrP
C. It only applied to wives belonging to any religion. The section did not apply"
to a concubine, kept mistress or a nonlegally wedded wife.2
II Persons entitled to claim maintenance
According to section 125 (1), Cr P C, the following persons are entitled to
claim maintenance under circumstances to be mentioned later:
(1) Wife
The wife, who is unable to maintain herself, is entitled to claim maintenance.
She may be of any age minor or major. The term "wife" includes a woman who
has been divorced by or has obtained divorce from her husband and has not
remarried.2" This extended definition of "wife" had been^y considered necessar
in Muslim law in view of the existence of some peculiar rules permitting a
husband to divorce his wife at any time at his will. The inclusion of "divorced
wife" in the definition of "wife" was intended to prevent the unscrupulous
husbands frustrating the legitimate maintenance-claims of their wives by just
divorcing them under the above said personal laws and was aimed at securing
social justice to women belonging to poorer classes.3
The position of divorced Muslim women in India was thoroughly examined
in the landmark judgment of the Supreme Court Mohd. Ahmed Khan v. Shah Bano
Begum.4 It was observed that section 125 of Criminal Procedure Code, was
enacted in order to provide a quick and summary remedy to a class of persons who
were unable to maintain themselves. Under the Muslim personal law, the husband
is bound to pay mehr to the wife as a mark of respect to her. He may settle any
amount he likes by way of dower upon his wife, which cannot be less than ten

1. Nanak Chand v. Chandra Kishore Agarwat, (1969) 3 S.C.C. 804; Sahida Begum v. Mohamed
Mofizal Haque, 1986 Cri.LJ. 103 (Gau.). Also see, Mohammad Ahmed Khan v. Shah Bano Begum,
A.LR. 1985 S.C. 945.
2. Bansidhar v. Chahi Chatterji, A.l.R. 1967 Pat. 277; Vimala v^ Veeraswamy, (1991) 2 S.C.C.
375.
2a. Explanation (b) to s. 125(1) Cr. P.C.
3. Joint Committee Report, p. xiii.
4. Supra note I.

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1996] RIGHT OF MAINTENANCE TO INDIAN WOMEN 393

dirhams, which is equivalent to three or four rupees. But, one must have regard
to the realities of life. Mehr is a mark of resect to the wife. The sum settled by
way of mehr is generally expected to take care of the ordinary requirements of the
wife, during the marriage and after. But these provisions of the Muslim personal
law do not countenance cases in which the wife is unable to maintain herself after
the divorce. This appears to be not fair propositions. Because the Muslim personal
law, which limits the liability of the husband to provide for maintenance of the
divorced wife to the period of iddat, does not contemplate or countenance the
situation envisaged by section 125 Cr P C after divorce, where she is unable to
maintain herself till remarriage, if it is so, it would be wrong to hold that the
Muslim husband, according to his personal law, is not under an obligation to
provide maintenance, beyond the period of iddat, to his divorced wife who is
unable to maintain herself otherwise. In fact, if the divorced wife is able to
maintain herself, the liability of the husband to provide maintenance for her ceases
with expiration of the period of iddat. Otherwise she is entitled to take recourse
to section 125 Cr P C. Thus the law is that there is no conflict between the
provisions of section 125 and those of the Muslim husband's obligation to provide
maintenance for a divorced wife in case she is unable to maintain herself. It is also
important to mention here that a man may marry a woman for love.
Mehr and provision for maintenance is a symbol of respect paid to her on
wedlock. But he does not divorce her as a mark of respect. Therefore, deferred
mehr, a sum payable to the wife out of respect cannot be a sum payable 'on
divorce'. Thus, there is no escape from the conclusion that a divorced Muslim wife
is entitled to apply for maintenance under section 125 and that mehr is not a sum
which, under the Muslim personal law, is payable on divorce.
It was even observed by the Supreme Court:
It is a matter of regret that though Article 44 of the Constitution provides
that the state shall endeavour to secure for the citizens a Uniform Civil
Code throughout the territory of India but there is no evidence of any
official activity for framing common Civil Code.5
But the goal of framing the Uniform Civil Code is still hanging, because of
vote politics. Again the position of divorced Muslim women in India became
degraded by enactment of the Muslim Woman (Protection of Rights on Divorce)
Act 1986. The divorced Muslim wife's claims are now to be governed by this Act.
It is however, possible for Muslim spouses to opt to be governed by sections 125-
128, Cr PC by virtue of a provision under section 5 of the Muslim Women
(Protection of Rights on Divorce) Act 1986.
It has been observed that the said Act has not been in the interest of Muslim
women because a Muslim husband will never like to be governed by the Cr PC.
However, some of the High Courts have held that the above Act did not take
away the Muslim wife's right to claim maintenance under section 125 of the
code.6
5. Ibid.
6. See for example, Kerala High Court's decision in AH v. Sufairi, 1988 (2) K.L.T. 94. See,
contra, Abdul Gafoor Kunju v. Avvalimmal Pathumma Beevi, 1989 (1) K..L.T. 337.

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In case of the divorced wife, the divorce may be at any time; and it had been
held that a woman divorced before 1 April 1974 (i.e., the date of coming into force
of this Code) could claim maintenance, provided the other necessary conditions
were satisfied.7
Wife for the purposes of section 125, Cr PC meant a legally married woman.8
The Supreme Court has ruled that the legality of the marriage would be governed
by the personal laws applicable to the parties.9 If the fact of legally valid marriage
was disputed, the applicant would have to prove marriage.10 However, the stan-
dard of proof was not so high as in case of proceedings under the Divorce Act or
under sections 494, 495, 497 or 498 of the Indian Panel Code (IPC).11

(2) Female child

(a) A minor child, male or female, if unable to maintain itself, is entitled to
claim maintenance. It is immaterial whether such a child is legitimate or illegiti-
mate, or whether married or unmarried.11" Here 'minor' means a person who,
under the provisions of the Indian Majority Act 1875 is deemed not to have
attained his majority.1 {h The child may be male or female. A minor married girl
may be entitled to claim maintenance from her husband or her father (or may be
from both) provided other necessary conditions are satisfied. If the husband of a
minor married female child is not possessed of sufficient means, the father of such
female child will be required to make allowance for its maintenance until she
attains her majority.llc*
(b) even after attaining majority a legitimate or illegitimate child is entitled
to claim maintenance if by reason of any physical or mental abnormality or injurv
it is unable to maintain itself. However, a married daughter is not entitled to
maintenance under section 125 of Cr P C if she has attained majority. In such cases
the responsibility of maintaining her is that of husband and not of the father.

(3) Mother
A mother, unable to maintain herself, is entitled to claim maintenance from
her son. Section 125 (1) Cr P C does not specifically provide for liability of a
daughter to maintain the parents. This gave rise to a conflict of opinion among the
High Courts on the question of liability of daughter.12 It has now been decided by
the Supreme Court that the daughter whether married or unmarried would also be
liable to maintain the parents. The courts pointed out that apart from any law, the

7. K. Raza Khan v. Mumtaz Khatoon, 1976 Cri. L.J. 905 at 907-8.

8. Savithrammav. Ramanarasimhaiah, (1963) 1 Cri.L.J. 131 at 133.
9. See, Anantrao Adhav v. Anantrao, (1988) 1 S.C.C. 530.
10. Jalandarv. Shobha, 1973 Cri.L.J. 1501 at 1502 (Bom. HC); LakshmiAmbalam v. Andiammal,
A.l.R. 1938 Mad 66 : (1938) 39 CriLJ 228.
11. Yanajakashamma v. P. Gopala Krishna, A.l.R. 1970 Mys 305.
Ma. S. 125 (\){b).
116. Explanation (a) to s. 125 (1).
l l c . See, proviso to s. 125(1) Cr.P.C.
12. See. Rajkumari v. Yashoda DevL 1978 Cri. L.J. 600 (P. & H.).

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1996] RIGHT OF MAINTENANCE TO INDIAN WOMEN 395

Indian society cast a duty on children to maintain the parents and that social
obligation equally applied to the daughter.13 It is not quite clear from the section
whether "father or mother" will also mean "adoptive father" or "adoptive
mother" or "step-father" or "step-mother". According to section 3(20) of the
General Clauses Act 1897 the word "father" shall include an "adoptive father"
; and though the term mother had not been similarly defined, it had been held that
the term "mother" included "adoptive mother".14 However, it has also been held
that having regard to the object and intention of section 125, the term "mother"
will have to be given its natural meaning, and that it would not include a "step-
mother".15 This question came to be re-examined by the Andhra Pradesh High
Court and it has been reiterated that it would not.16 The position appears to be
quite logical.
It is feared that there might be considerable difficulty in the amount of
maintenance awarded to parents apportioning amongst children in a summary
proceedings of this type.17 However, it has been suggested that if there are two or
more children, the parents may seek the remedy against any one or more of them. 18

Ill Persons from whom maintenance can be claimed

Section 125 (1), Cr P C required only a husband, father, son or daughter, as
the case may be, to pay maintenance to the respective persons namely, wife, child,
father or mother under certain circumstances. Section 125 did not contemplate the
mother to pay maintenance to father or son and daughter as the case may be. 19
The question is whether the wife can also be held liable to pay the alimony
to her husband.
According to the Hindu Marriage Act 1955, either a husband or wife, if
separated or divorced, can ask the other for alimony.20
Although the law is over three decades old, husbands demanding alimony are
rare enough to make headlines but the question came up before the Madras High
Courts for consideration, in which, it was held that the woman should pay alimony
to her husband. Thus, in a case a film actress preferred an appeal to the Supreme
Court against such unusual order of the Madras High Court.21 The case is yet to
be decided.

13. Vijaya Manohar Arbat v. Kashirao Rajaram Sawai, (1987) 2 S.C.C. 278.
14. Baban v. Parvatibai, 1978 Cri. L.J. 1436 at 1440 (Bom.).
15. Ramabaiv. Dinesh, 1976 Mah. L.J. 565 (Bom.J; but see contra., Havaben v. Razakbhai, 1977
Cri. L.J. 381 (Guj.).
16. Ayyagari Suryanarayana Vara Basada Rao v. A.S. Venkatakrishna Veni, 1998 Cri. L.J. 673
(A.P).
17. See, 41st Report, p. 304, para 36.
18. Joint Committee Report, p. xiv. See also, observations on Ahathinamiligai v. Arumugham,
1988 Cri. LJ. 6 (Mad.).
19. See, observations in Raj Kumari \. Yashoda Devi, 1978 Cri. L.J. 600, 601 (P. & H.).
20. S. 24. Hindu Marriage Act 1955.
21. See, AnjuGovil, "No to equality if it means alimony", The Pioneer 15-5-1992, p. 7(Lucknow).

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396 JOURNAL OF THE INDIAN LA WINSTITUTE [Vol. 3 8 : 3

While men and women may notionally be equal, but one has to acknowledge
that Hindu society is still a male-dominated one. There is such inequality of
opportunities. The main task of law should be to protect women and their rights,
in right earnest.
Since the Indian Constitution stipulates that women and men are equal in the
eyes of the law, it may be very difficult to have the maintenance law repealed.
Indian women may simply have to live with equality as a notion until they can
struggle to make it a reality.22
Before 1956 the traditional law put personal liability on the Hindu male to
maintain his virtuous wife, infant children, aged and infirm parents even if they
committed 100 misdeeds. The traditional law has not been changed much 1956
except that illegitimate children have been provided maintenance. This is a
reformative step and quite commendable for the reason that why children should
suffer for the fault of their parents. This has been the recommendation of Royal
Commission in UK also.

IV Essential conditions for granting maintenance

Following are the essential conditions for granting maintenance:

(1) Sufficient means to maintain

According to section 125 (1), Cr P C the person from whom maintenance is
claimed must have sufficient means to maintain the person or persons claiming
maintenance. The 'means' contemplated are not confined only to visible means
such as land, and other property or employment. If a person is healthy and able
bodied, he must be held to have the means to support his wife, children and
parents. 23

(2) Neglect or refusal to maintain

The person from whom maintenance is claimed must have neglected or
refused to maintain the person or persons entitled to claim maintenance. Neglect
or refusal to maintain may be by words or by conduct. It may be express or
implied.24 Burden of proving neglect is on the claimant.25
A husband who makes it difficult for the wife to live with him and who fails
to maintain her when she lives elsewhere, neglects or refuses to maintain the wife,
cannot expect any self-respecting wife, in keeping with modern ideas, to share the
conjugal home with a mistress or another wife. Thus the offer of a husband, who
has taken a second wife, to maintain the first wife on condition of her living with
him cannot be considered to be a bona fide offer and the husband will be
considered to have neglected or refused to maintain the first wife.26 Even where

22. Ibid.
23. In re Kandasamy Chetty, A.LR. 1929 Mad. 346; Dhani Ram v. Ram Dei, A.LR. 1955 All. 320,
Basant Kumari Mohanty v. Sarat Kumar Mohanty, 1982 Cri. L.J. 485 (Ori.).
24. Bhikaji v. Maneckji, (1907) 5 Cri. L.J. 334 at 336 (Bom.).
25. See, observations in Dasarathi Ghosh v. Anuradha Ghosh, 1988 Cr. L.J. 64 (Cal.).
26. ChandBegum v. Hydrabaig, 1972 Cr. L.J. 1270 at 1273 (A.P.).

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1996] RIGHT OF MAINTENANCE TO INDIAN WOMEN 397

the husband, by virtue of the personal law applicable to him is entitled to marry
a second wife while the first marriage subsists, the first wife may be justified in
considering the second marriage itself a ground for living separately and seeking
maintenance from the husband.27
It has been observed that the term maintenance means proper maintenance and
it should not be narrowly interpreted,28 Looking after the person in need of
maintenance and showing concern for his physical and spiritual well being,
includes clothing, medical treatment, academic persuits and a decent living.
(3) Person claiming maintenance must be unable to
maintain himself or herself
The object of section 125, Cr P C is mainly to prevent vagrancy, therefore the
requirement to pay maintenance should be only in respect of persons who are
unable to maintain themselves. Under section 125 (1) (a) maintenance allowance
cannot be granted to every wife who is neglected by her husband or whose husband
refuses to maintain her, but can be granted only if the wife is unable to maintain
herself.29 Wife, need not specifically plead that she is unable to maintain,30
However, in a case where the wife is hale and hearty and is adequately educated
to earn for herself but refuses to earn and claim maintenance from her husband,
it has been held that she is entitled to as claim but that her refusal to earn under
the circumstances would disentitle her to get full amount of maintenance.31
The circumstances which debar a wife to claim maintenance are as follows:
(a) The right of maintenance to wife is subject to the rule that she must be
chaste and has not remarried.

(b) Wife must not refuse without sufficient reasons to live with her husband
It may however be noted that if a husband has contracted marriage with
another woman or keeps a mistress, it shall be considered to be just ground for his
wife's refusal to live with him.
When the husband denies the parentage of the child he indirectly refers to the
unchastity of his wife. The accusation of adultery is sufficient cause for refusal
on the part of the wife to reside with the husband.32 Imputation of unchastity made
by the husband for the first time was held sufficient to constitute cruelty. Such
events subsequent to filing of complaint should also be considered in granting
maintenance.33

27 Begum Subanu alias Sairabanu v KM Abdul Ghafoor, (1987) 2 S C C 285

28 Purnasashi Devi v Nagendra Nath, A I R 1950 Cat 465 at 466
29 Manmohan Singh v Mahmdra Kaur, 1976 Cr L J 1664 (All)
30 Malanv Baburao Yeshwant Jadhav, 1981 Cn LJ 184 (Kant)
31 Abdulmunaf\ Salima, 1979 Cn L J 172(Kant)
l\a S 125(4)
31 Expln to s 125(3)
32 Mango v Mangtu, 1976 Cn L J 93 at 94 (H P )
33 Shakuntala v Rattan Lai, 1981 Cn L J 1420 (H P )

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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 of the ease,
(c) The wife must not be living separately by mutual consent33"
A divorced wife cannot, however, be characterised as a wife living separately
by mutual consent. She is a person who lives separately from her former husband
by virtue of a change in status consequent upon dissolution of the marriage,34
However, in the case of divorce by mutual consent if the wife had relinquished
her right to maintenance she cannot later claim maintenance,3*
i 5 n

V Jurisdiction of magistrates

(1) Magistrates empowered to deal with maintenance proceeding

Only judicial magistrates of the first class can deal with and decide petitions
in respect of maintenance under section*125-128 of Cr P C, No other magistrate
has such jurisdiction. If any magistrate, not being empowered by law In this
behalf, makes an order for maintenance his proceeding shall be void,35"
(2) Territorial jurisdiction
Proceedings for maintenance under section 125, Cr P C be taken against a
person in any district-
(a) where he is, or
(b) where he or his wife resides, or
(c) where he last resided with his wife, or as the case may be, with the
mother or illegitimate child.35*.
Often a deserted wife is compelled to live with her relative far away from the
place where the husband and wife last resided together. For her convenience venue
of the proceeding has been made wide enough to include the place where she may
be residing on the date of application for maintenance.36
The expression "resides" means something more than a flying visit and does
not include a casual stay in a particular place, and what is required is an intention
to stay for a period, to length depending upon circumstances of each case.37
Similarly the expression "last residence, whether permanent or temporary,'*8

33a. S. 125(4)
34. Ravindran v. Sakunthala, 1978 Cri. LJ. 1049 (Ker.).
35. Sharwan Sakharam Ubhale \. Sou Durga Sharawan Ubhale, 1989 Cri, LJ. 211 (Bom,),
35a. See, s. 461(g).
35b. S. 126(1).
36. See. 41st Report 306, para 36.
37. Jagir Kaur v. Jaswant Singh, A.LR. 1963 S.C. 152L
38. Ibid.

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1996] RIGHT OF MAINTENANCE TO INDIAN WOMEN jyy

The word 'is' connotes in the context the presence or existence of the person
in the district when the proceedings are taken. It is much wider than the word
"resides". What matters is the physical presence at a particular point of time, i.e.,
when the application is made,39
VI Procedure
An application under section 125, Cr P C for obtaining maintenance must
positively aver that the applicant is unable to maintain himself or herself, in
addition to the fact that the person against whom the demand for maintenance has
been made has sufficient means to maintain the applicant and that he has neglected
or refused to maintain the aplicant.40 It has, however, been held by the court that
the wife's claim cannot be rejected on the technical plea that she did not
specifically plead that she was unable to maintain herself.41
No period of limitation has been prescribed for filing an application for
maintenance.42 All evidence in such proceedings is to be taken in the presence of
the person against whom the proceedings were taken, However, if for good
reasons, the personal attendance of such person is dispensed with by the magis-
trate, the evidence then be taken in the presence of pleader of such person.42"
All the evidence is to be recorded in the manner prescribed for summon
cases.42b
If the magistrate is satisfied that the person against whom an order for
payment of maintenance is proposed to be made is willfully either avoiding
service, or neglecting to attend the court, the magistrate may proceed to hear and
determine the case exparte,43
Any ex parte order so made however may be set aside; for good cause shown
on an application made within 3 months from the date subject to appropriate terms
including there relating to payment of costs to the opposite party.43"
Going through the Code it appears that the proviso restricts limitation of time
within which an application must be made, to three months from the date of the
order itself.44 However, it has been held by the courts that the period of limitation
in this connection begins from the date of knowledge of the ex parte order to the
aggrieved party and not from the date of the passing of that order.45
The court in dealing with application under section 125, CrPC for mainte-
nance may make an appropriate order as to costs.45"

39. Ibid.
40. Zubedabi v. Abdul Khader, 1978 Cri. L J . 1955 at 1557 (Kant.)
41. See, Malan v. Baburao Yeshwant Jadhav, 1981 Cri. L J . 184 (Kant.) and observations in
Udaivir Singh v, Vinod Kumari, 1985 Cri. LJ. 1923 (All.).
42. Mithu Devi v, Siya Choudhary, 1975 Cri. L J . 1694 at 1695 (Pat.).
42a. S. 126(2).
42£. S. 126(2).
43. See, discussions in Balan Nair v. Bhavani Amma Valsalamma, 1987 Cri. L J . 399 (Ker.). See
also, Savitri v, Govind Singh Rawat, 1986 Cri. LJ. 41.
43a. Proviso to s. 126 (2).
44. Hyder Khan v. Safeera Bee, A.LR. 1968 Mys. 9.
45. Jehra Begum v. Mohammad Ghouse, A.LR. 1966 A.P. 50.
45a. S. 126(3).

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An inquiry under sections 125-126 CrPC is not a trial, nor the result of such
inquiry can be considered as a conviction or acquittal. Therefore section 300 ol
the Code does not apply and a second application under section 125 is not barred.46
It has been held by the courts that it was maintainable when the first application
had been dismissed on the basis of a compromise.47

VII Maintenance order

Upon considering the evidence, and on satisfaction of essential conditions for
granting maintenance as mentioned above the magistrate may order the person
proceeded against to make a monthly allowance for the maintenance of the
applicant at an appropriate monthly rate, not exceeding five hundred rupees in the
whole, and to pay the same to such person as the magistrate may direct from time
to time.
The fixing of the rate of allowance is to be done on the merits of each case
and the separate income and means of the person claiming maintenance are
relevant circumstances to be taken into account for this purpose. In a case where
the wife is claiming maintenance from her husband, the magistrate has to find out
as to what is required by the wife to maintain a standard of living which is neither
luxurious nor penurious, but is modesty consistent with the status of the family.
The needs and requirements of the wife for such moderate living can be fairly
determined, only if her separate income also is taken into account together with
the earning of the husband and his commitments.48
The monthly rate of allowance for maintenance is not to exceed Rs. 500 on
the whole. The words 'in the whole' means only one sum of money, not exceeding
Rs. 500 to be awarded to each person for all the items of maintenance taken
together; these words should not be understood to one sum not exceeding Rs. 500
for maintenance of all the claimants taken together.49
In a writ petition under article 32 of the Constitution oflndia, the validity of
section 125 CrPC had been challenged on the ground that the section unreasonably
limited the maintenance to Rs. 500 for an individual. It was held by the Supreme
Court that section 125, CrPC provided a speedy remedy against starvation of civil
labilities of parties. The order made under it was tentative and subject to the final
determination of the rights in a civil court. Therefore, there was no reason to issue
decree nisi. The writ petition was, thus, accordingly dismissed.50
The allowance for maintenance ordered to be paid shall be payable from the
date of the order, or from the date of the application for maintenance, if so directed
by other order.50"

46 Nafees Ara v AsifSaadat All, A I R 1963 All 143

47 Nathuram v Ramsri, (1965) 1 Cri L J 273 at 274-75 (All )
47a S 125 (1)
48 BhagwanDutt Kamla Devi, (1975) 2 S C C 368 at 391
49 M Bulteelv R C Bulteel. A I R 1938 Mad 721
50 Inderjit Kaur v Union oflndia, (1990) 1 S C C 344
S0a S 125 (2)

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1996] RIGHT OF MAINTENANCE TO INDIAN WOMEN 401

VIII Enforcement of order of maintenance

An order of maintenance can be enforced under the following circumstances:
(1) If any person ordered to pay a monthly allowance for maintenance under
section 125 (1) fails without sufficient cause to comply with the order the
magistrate making such order may, for every breach of such order, issue a warrant
for levying the amount in the manner prescribed for levying fines.50h No such
warrant for the recovery of any amount due under section 125, shall however be
issued unless the application for levying such amount is made to the court within
a period of one year from the date on which such amount became due. 50c
Where the order of maintenance is made in favour of a wife (presumably not
divorced wife) and if the husband offers to maintain her on condition of her living
with him and she refuses to live with him, the magistrate may consider any ground
of refusal stated by her and may make an order under section 125 of CrPC
notwithstanding such offer if he is satisfied that there is just ground for so
doing,5(k/ It has been further explained that contracting marriage with an other
woman or keeping a mistress shall be considered to be just ground for wife's
refusal to live with her husband.50e The words 'without sufficient cause' in
relation to a failure to comply with the maintenance order should be understood
in the light of this explanation.
After execution of the warrant, if the whole or any part of the amount of
maintenance remains unpaid, the court may sentence the defaulter proceeded
against to imprisonment for a term which may extend to one month or until
payment if sooner made.50^ It has been held by the Supreme Court that imprison-
ment imposed under this section was a mode of enforcement rather than a mode
of satisfying the liability. A person ordered to pay maintenance may not be
absolved of his liability merely because he was sent to jail. 51 A warrant of arrest
can be issued only if recourse to attachment and sale of property (of the defaulter)
fails.52
In order to facilitate enforcement of the maintenance order, it has been made
obligatory by section 128 to supply a copy of the order free of cost to the person
in whose favour it is made or to his guardian, or to the person to whom, the
allowance is to be paid.
It has been further provided by section 128 that such order of maintenance
may be enforced by any magistrate in any place where the person against whom
it is made may be, on such magistrate being satisfied as to the identity of the
parties, and the non-payment of the allowance due. This provision makes the
maintenance order enforceable anywhere in India even in a place outside the
territorial jurisdiction of the magistrate who passed the order.

50b. S. 125 (3).

50c. First proviso to s, 125 (3).
50a\ Second proviso to s. 125 (3).
50e. Expln. to second proviso to s. 125 (3).
SO/*. S. 125 (3),
51. See, Kuldip Kaur v. Surinder Singh, (1989) 1 S.C.C. 405.
52. Karnail Singh v. Gurdial Singh, 1974 Cri. LJ. 38, 39 (P & H.).

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IX Alteration of allowance
On proof of a change in the circumstances of (/) any person receiving a
monthly allowance, or (//) a person paying such allowance, the magistrate may
make appropriate alteration in the rate of the allowance. However, if it is
increased, the monthly rate of Rs. 500/- in the whole may not be exceeded.52a
Where it appears to the magistrate that in consequence of any decision of a
competent civil court, any maintenance order should be varied, he may vary it
accordingly.52ft The order may have prospective effect only.53
X Cancellation of order for maintenance
On proof that any wife in whose favour a maintenance order has been made,
(/') is living in adultery, or (ii) that without sufficient reason she refuses to live with
her husband, or (Hi) that they are living separately by mutual consent; the
magistrate may cancel the maintenance order,52c
Where it appears to the magistrate that in consequence of any decision of a
competent civil court, any order for maintenance made under section 125 should
be cancelled, he may cancel it.54
Where an order for maintenance has been made in favour of a woman who has
been divorced by, or has obtained a divorce from her husband the magistrate can,
if he is satisfied that-
(a) the woman has, after the date of such divorce, remarried, cancel such
order as from the date of such remarriage;54"
(b) the women has ben divorced by her husband and that she has received,
whether before or after the date of the said order, the whole of the sum
which under such customary or personal law applicable to the parties,
was payable on such divorce, cancel such order-
(/) Where such sum was paid before such order from the date on which
it was made,
(ii) in any case other case, from the date of expiry of the period, if any,
for which maintenance has been actually paid by the husband to
the woman54*,
It may however be pointed out that, "No husband can claim under section 127
(3) (b) of Criminal Procedure Code absolution from his obligation to pay main-
tenance under section 125 towards a divorced wife except on proof of payment of
a sum stipulated by customary or personal law whose quantum is more or less

52a. S. 127 m .

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19961 RIGHT OF MAINTENANCE TO INDIAN WOMEN 403

sufficient to do duty for maintenance allowance. The payment of illusory amounts

by way of customary or personal law requirement will be considered in the
reduction of maintenance rate but cannot annihilate that rate unless it is a
reasonable substitute",55
(c) the women has obtained a divorce from her husband and that she has
voluntarily surrendered her rights to maintenance after her divorce, (the
magistrate shall) cancel the order from the date thereof.55"

XI Maintenance order to stand till vacated or cancelled

Section 125, CrPC is a provision to protect the weaker of the two parties.
Therefore, if an order for maintenance has been made against the deserter husband
it will operate, until it is modified or cancelled by a higher court or is varied or
vacated in terms of section 125 (4) or (5) or section 127 of the Code of Criminal
Procedure. The order is enforceable and no plea that there has ben cohabitation
in the interregnum or that there has been a compromise between the parties can
hold good as a valid defence.56
XII Civil court to take note of maintenance order under section 125
At any time of making any decree for the recovery of any maintenance or
dowry by any person to whom a monthly allowance has been ordered to be paid
under section 125 of CPC the civil court shall take into account the sum which has
been paid to such person as monthly allowance in pursuance of the said order.56"
XIII Conclusion
It is being summed up in the following words that all personal laws accept the
ba$ic idea of the woman having some rights to support in the event of the
disolution of a marriage. These rights are circumscribed by various conditions. In
a marriage that is void the wife is not permitted to sue for maintenance. She is
entitled to maintenance if a voidable marriage is annulled, or if a valid marriage
is dissolved. In the event of a judicial separation, she is also entitled to mainte-
nance.57
Where she is entitled to maintenance, the extent she is entitled to claim varies
not only according to the limitations imposed by the laws but also the decision of
the judge. In the Hindu Adoption and Maintenance Act 1956, the court has the
discretion to fix the amount of maintenance. The amount varies from case to case
and is calculated on the basis of the income and liabilities of the parties, In one
case it may be RsT 100/- and, In other pases it may be Rs, 800/- or more, It is merely
illustrative and not exhaustive. A complete survey of the financial condition and

55. Ihu Jafura y. AH Hwww Ftssatfi, (1979) 2 S.C.C. 316 at 321. But see, Mohd AhmedKhw V.
Shah Bano Begum, supra note |.
55a. S 127 (3) (c).
56. Bhnpmder Singh v Dal/it Kaur. (1979) 1 $.C.C. 352 at 354.
57. See. Ilimanshu J. Trivedi,"Permanent Alimony and Maintenance under the H.M. Act, 1955",
,/ I R Jn 65 (1990).

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404 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol, 38 : 3

liabilities of the parties is to be taken in consideration before fixing the quantum

of maintenance. The amount of maintenance can be increased or decreased by the
court on altered situations.58
According to Muslim law, she may be given the agreed amount of mahr and
as for continued support, she is legally entitled to it only during the period of iddat.
This point was thoroughly considered in Mohd. Ahmed Khan v. Shan Bano
Begum".50 It is worth mentioning that the sum settled by way of mahr is generally
expected to take care of the ordinary requirements of the wife, during the marriage
and after. But these provisions of the Muslim Personal Law do not countenance
cases in which the wife is unable to mantain herself after the divorce. It is not only
incorrect but unfair. Because the Muslim Personal Law, which limits the liability
of the husband to provide for the maintenance of the divorced wife during the
period of iddat, does not comtemplate or countenance the situation envisaged by
sec, 125 CrPC it would be wrong to hold that the Muslim husband, according to
his personal taw, is not under an obligation to provide maintenance, beyond the
period of iddat, to his divorced wife who is unable to maintain herself, Infact, if
the divorced wife is able to maintain herself, the liability of the husband to provide
maintenance for her ceases with the expiration of the period of iddat, otherwise
she is entitled to take recourse to sec. 125 Criminal Procedure Code. Thus, the
conclusion is that there is no conflict between the provisions of sec. 125 and those
of the Muslim Personal Law on the question of the Muslim Husband's obligation
to provide maintenance for a divorced wife who is unable to maintain herself.
In 1986, The Muslim Women (Protection of Rights on Divorce) Act was
passed, The Act has consolidated and harmonised the different schools of the
Muslim law in the matter of payment of maintenance to the wife on divorce. While
the orthodox view of the husband's liability to pay maintenance only upto iddat
period finds prominence in this Act, the women trend as reflected in section 125
of the CrPC has also been included making it optional on the choice of the both
parties. In Christian law it has been observed that "the wife is entitled to 25
percent to 30 percent of her husband's income calculated on the basis of his
earnings in the three years immediately preceding the decree of divorce,60
Anjani Kant*

58. See, s. 23, Hindu Adoption and Maintenance Act, 1956.

58a. See, id., s. 25.
59. Supra note I.
* LX.D. Scholar, Lucknow University.

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