14.

ORDER FOR MAINTENANCE OF WIVES,

CHILDREN AND PARENTS (Sec. 125 to 128)
(MOST IMPORTANT)

SYNOPSIS:
A. Introduction
B. Persons to whom maintenance is payable (Sec. 125)
C. Wife's right to maintenance
D. Child's right to maintenance
E. Parents' right to maintenance
F. Procedure for the proceedings (Sec. 126)
G
A l t e r a t i o n i n m a i n t e n a n c e a l l o w a n c e (Sec, 1 2 7 )
.
H. Persons entitled to maintenance
I. Persons not entitled to maintenance

A. INTRODUCTION:
This provision was added under the amended Code of Criminal Procedure 1973. If
a wife or child or father or mother is neglected or not maintained, then there are two
remedies open to them.
1. Suit under the Civil Law.
2. Proceedings under Criminal Procedure Code. (Sec. 125 to 128). The Criminal
Procedure Code tries to give quick relief with the least Court expenses to the
persons who claim maintenance.
This provision is made with an assumption that it is the natural and
fundamental duty of every person to maintain his wife, children and parents, if
they are not able to maintain themselves.
Relief can be sought under this Section by deserted wives and children
and destitute parents.

B. PERSONS TO WHOM MAINTENANCE IS PAYABLE: (Sec. 125)

If any person 'having sufficient means' neglects or refuses to maintain:
1. his wife who is unable to maintain herself.
2. legitimate or illegitimate minor child unable to maintain itself.
3. legitimate or illegitimate child who has attained majority but suffers from
physical or mental abnormalities.
4. his father or mother unable to maintain himself or herself.

‘Any person' includes the following persons:

a. Male and female
b. A Hindu not divided from his father.
c. Father, husband or son, but not daughter.

'Sufficient means' refers to the earning capacity of a person. If a man is healthy

and sound, he is considered to be having the means to support his wilt-/
children/parents. Thus, insolvency of the husband is not considered to be inability
of the person to maintain his wife.
Refusal to maintain may either be express or implied. Maintenance means
providing appropriate food, shelter {lodging) and clothing.

A First-Class Magistrate upon proof of such neglect or refusal of the above person
can order a monthly allowance for maintenance on such monthly rates as he thinks
fit.

The Magistrate may order the father of a minor female child whether married or not
to make such allowance till she attains majority and gets married and if the minor
female child is married, then the Magistrate, if he is satisfied that the husband of
such minor female child is not possessed of sufficient means, then he may make
such monthly allowance for maintenance of such minor female child.

Interim maintenance:

During the pendency of the proceeding for monthly allowance for maintenance, the
Magistrate may order the husband to make a monthly allowance for the interim
maintenance of his wife or child or father or mother and the reasonable expenses
of such proceeding to such person as the Magistrate may direct.

Such application for interim maintenance and expenses tor proceeding should be
disposed of within sixty days from the date of service of notice of the application to
such person.

The allowance for the maintenance or interim maintenance and expenses

for proceeding shall be payable from the date of the order or from the date
of the application.

C. WIFE'S RIGHT TO MAINTENANCE:

1. The term "wife" also includes a woman who has been divorced by, or
has obtained a divorce from, her husband and has not remarried. The
wife must prove that she cannot maintain herself. Proof of marriage is
necessary. If the wife can maintain herself, then maintenance may not
be granted.
i. Samirmandal Vs. State of Bihar, 2001 (3) Pat LJR (SC) 80:

When the factum of marriage is not proved, the question of grant of

maintenance does not arise.
ii. Dwarika Prasad Satpathy Vs. Bidyut Prava Dexit, AIR 1999 SC
3348:

In the absence of strict proof of marriage, if a husband and wife are living
together, and if the Magistrate is convinced of the marriage and the paternity of
the child born out of such wedlock is proved, then the Court presumes in favour
of such marriage unless the party denying the marriage rebuts such
presumption.

Thus, the object of this provision is to safeguard the interests of the destitute
women, children or parents who have been abandoned.
 iii. Rajathi Vs. C. Ganesan, AIR 1999 SC 2374:

There should be neglect or refusal by husband to maintain the wife. If the husband
is living with another woman and the wife refuses to live with him, it is considered to
be a willful neglect to maintain the wife.

2. Even a divorced wife (including divorce by mutual consent) has a right

to claim maintenance if she has not remarried.
In Mohammedan law, maintenance is available to a divorced wife until the
expiry of the period of iddat.
But under Sec. 125, the wife can claim maintenance until her remarriage and
even if she has been divorced long before the commencement of the Act.
iv. Rohtash Singh Vs. Smt. Ramendhi, AIR 2000 SC 952:

The Supreme Court had held that after decree of divorce is passed, the wife
is under no obligation to live with her husband. But though marital relations
come to an end by the decree of divorce, she continues to be wife within the
meaning of Sec. 125 CrPC.

A woman after divorce becomes a destitute if she cannot maintain herself or

remains unmarried. The man who was once her husband continues to be
under statutory duty to provide maintenance to her.
Under Mohammedan laws, there are three modes by which husband gives a
divorce to his wife:
i. Unilateral divorce by husband.
ii. By agreement between husband and wife and relinquishment of entire or
part of the dower.
iii. By dissolution of marriage under Sec. 2 of the Act of 1919.

Sec. 125 takes into account all the above three modes by which a wife is
divorced, and allows maintenance.

3. The wife shall not be entitled to maintenance if she refuses to live with
her husband without a reasonable ground.

But in case of physical and mental cruelty, impotency of the husband, and
remarriage of husband, keeping a mistress etc, the wife may refuse to live
with her husband, and maintenance can be claimed.

4. 4. It must be proved that the husband has sufficient means for paying
the allowance. If there is no proof of refusal or neglect of maintenance
of wife, then there can be no allowance of maintenance.

The term 'women' under the provision includes both divorced and
judicially separated females not yet remarried.
5. If a person falls to pay the maintenance amount as ordered by the
Magistrate without sufficient cause, then the Magistrate can issue a
warrant for levying the amount due from him as in the manner
provided for levying fines and may also sentence him for his failure to
pay whole or part of each month's allowance for maintenance, interim
 maintenance and expenses of proceedings for a term extending upto
one month.
The application for the recovery of maintenance amount, etc., must have
been filed by the claimant within a period of one year from the date on which
the amount became due.
6. If such person invites his wife to live with him and if there are
reasonable grounds for her refusal, even then order for payment of
separate maintenance amount may be given to the wife by the
Magistrate.
7. If the wife lives in adultery or wrongfully refuses to live with her
husband or lives separately by mutual consent, then the maintenance
amount may not be granted.

Proof of a single act of adultery is not sufficient to disentitle the wife from
getting her maintenance amount. It means a continuous course of conduct,
and not a single act of immorality.

If a husband has contracted marriage with another woman or keeps a

mistress, it shall be considered to be a just ground for his wife's refusal to live
with him.

However, the marriage with the claimant must be legitimate and there must
be proof of relationship of husband and wife.

During the maintenance proceedings, if the husband contends that his wife was
of immoral character or he was prepared to live with her, then the Magistrate
should conduct an enquiry and cancel the order if the husband succeeds.

The maintenance of children is a statutory duty of the father. If the children are
illegitimate, even the refusal of the mother to handover the child to the father
does not release him from giving maintenance.

a. Shah Bano's case or Mahommad Ahmed Khan Vs. ShahBano Begum :

The respondent Mahommad Ahmed pronounced Talak (divorce) to the petitioner

Shah Banoo. The petitioner filed the suit for payment of Maintenance to her,
after the period of iddat as her husband refused to pay maintenance to her. The
Respondent contended that under Muslim Personal law, there is no liability for
the husband to pay maintenance as Dower has already been settled.

The Supreme Court did not accept this contention and held that Dower and
maintenance are different and payment of dower did not exclude the right of the
divorced wife from claiming maintenance. The Supreme Court came to this
conclusion based on the passages from Holy Koran. It thus held that the divorced
wife is entitled to be maintained by the husband till her marriage. It also held that
Section 125 of Cr.P.C overrides the personal law in the event of conflict between
the two.
Since the judgement of Supreme Court created furore from Muslim religious sects,
the Parliament overruled the Supreme Court judgement by passing Muslim Women
(Protection of Rights on Divorce) Act, 1986.

According to this Act. the husband’s liability to pay maintenance ceases once Uie
dower is paid in full and in the event that the divorced wife is unable to maintain
herself her relatives who are entitled to inherit her properties must maintain her and
if she has no properties then the State Wakf Board must maintain her.
Section 125 Cr. P.C is applicable only if both husband and wife agree for its
applicability.

b. Sudeep Chaudhary Vs. Radha Chaudhary (1998):

In this case, it was held that the maintenance amount awarded under Sec. 125
Cr.P.C. is adjustable against amount awarded in matrimonial proceedings under
Sec. 24 of Hindu Marriage Act.
c. Hem Raj Vs. Urmila Devi (1997):
The Court held that the wife should obey the decree of Restitution of
Conjugal Rights and should not refuse to abide by it and make a complaint that the
husband has refused to maintain her.

D. CHILD'S RIGHT TO MAINTENANCE:

Minor child, legitimate or illegitimate minor married daughter, major children with
mental or physical defect or injury even if the mother can maintain the children, the
father is liable to maintain and his liability is absolute till the child ean maintain
himself.

The children can claim maintenance even if the mother is living separately,
and refuses to come to her husband under a decree for restitution of conjugal
rights.

A child need not be a minor but should be unable to maintain itself due to
mental or physical abnormality or injury.
a. K. K. Nath Vs. Kanchan Bala Nath:
Here, it was held that though the mother of the child was not the wife
of the father who is in custody of the ehild, the child was entitled to
maintenance.
'Unable to maintain itself means that they are unable to earn their
livelihood.
b. Noor Saba Khatoon Vs. Mohd. Quasim, (1997 SC 3280):

In this case, it was held that the children of muslim parents are entitled to claim
maintenance under Sec. 125 Cr.P.C. for the period till they attain majority or
are till they are able to maintain themselves, whichever is earlier.
If the child is a female, the period of maintenance is till her marriage. This right
of the children is absolute even if they live with the divorced mother and not
restricted by the divorcee's right to claim maintenance.

E. PARENTS' RIGHT TO MAINTENANCE:

 A parent who is not able to maintain himself can claim maintenance from
his/her sons or daughters, if they do not have sufficient means to maintain
themselves.
Maintenance amount includes the medical expenses of the parents and the amount
is fixed according to the status of the parties and the income arid liabilities of the
son/daughter.

a. Jagdesh Jugtawat Vs. Manju Lata. 2002 (5) SCC 422):

In this case, it was held that granting of maintenance to minor unmarried daughter
till her marriage under Sec. 125 is not an interference with Sec. 20 (3) of the Hindu
Adoption and Maintenance Act, which also provides the right of minor girl for
maintenance from parents after attaining majority till marriage.

Regarding maintenance of the father, the son/daughter cannot refuse maintenance

by declaring that the father had failed to perform his parental obligation during
his/her minority.

Parents may claim maintenance from any of their children. Maintenance shall be
payable from the date of the order or date of application of maintenance.

Remedies for enforcement of order of payment of maintenance allowances or

interim maintenance and expenses for proceeding:
1. Issue of warrant for levying the amount due.
2. Sentence the husband or father to imprisonment which may extend to one
month for whole or part of monthly allowance.
i. Before enforcement of payment of allowance, the Magistrate must get
confirmed that the person was ordered to pay the maintenance and that he
failed to comply with the order and that his failure was without sufficient
cause. Insolvency of the husband is not a 'sufficient cause'.
ii. Sentencing a person to jail is only a mode of enforcement or recoveiy of
the order of maintenance and not a mode of satisfaction or a substitute of
recovery.
Salary payable can be attached for recovery of maintenance which is due
but not for future maintenance. Future salary can be attached for recovery of
arrears of maintenance.
iii. The order of maintenance or interim maintenance and expenses of
proceeding, may be enforced by the Court which passed the order. The
Court may issue show cause notice and for each month's default there
may be imprisonment.
The cause of default in payment need not be inquired by the Court before
passing imprisonment. Imprisonment may be simple or rigorous.

b. Vijaya Manohar Arbat Vs. Kashik Rao Rajaram Sawai:

In this case, it was held that if the parents claim maintenance from a married
daughter, it must be verified whether she has independent income apart from her
husband's. The parents must be unable to maintain themselves.
 iv. Application for taking action against non-payment of maintenance amount
should be made within one year from the date, when it becomes due. (if
such application is dismissed for default, a second application after lapse
of one year may also be considered).

There is no appeal from such order but revision may lie to the High Court and the
Sessions Court.

F. PROCEDURE FOR THE PROCEEDINGS: (Sec. 126)

The proceedings may be taken against any person in any district on any
date where he is living or where he or his wife is residing or where both last resided
together.
If the Magistrate is satisfied that such person wilfully avoids the service
of the summons of the Court or wilfully neglects to attend the Court, then he may
proceed exparte.
G. ALTERATION IN MAINTENANCE ALLOWANCE:
(Sec. 127)
1. It there is any change in the circumstances of any person who receives or who is
ordered to pay a monthly allowance for maintenance or interim maintenance to
his wife, child, father or mother, then the Magistrate may make alteration as he
thinks fit-
Change in circumstances may be due to change in cost of living, status or
income, child growing older, death or birth of a child or a valid divorce.
2. In consequence of any decision of the Civil Court, if it appears to the
Magistrate that the order should be cancelled or varied, he may cancel or
vary the same.
3. Cancellation of order of maintenance: In the following circumstances, the
Magistrate may cancel
a. If the woman after divorce has remarried, the maintenance will be
cancelled from the date of her remarriage.
b. If the woman has received the whole of the amount payable on divorce
under any personal law before or after maintenance, it will be cancelled.
If such sum was paid before such order, it shall be cancelled from the
date on which such order was made and in other cases, from the date of
expiry of the period, if any, for which maintenance has been actually paid by
the husband to the woman;
If the divorced woman has voluntarily surrendered her rights to
maintenance or interim maintenance after her divorce, it will be cancelled
from that date.
At the 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, the Court shall take into account the sum paid, or recovered by such
person as monthly allowance or interim maintenance in pursuance of the
said order.
H. PERSONS ENTITLED TO MAINTENANCE:
I. Wife.
2. A Muta wife.
3. Adi Dravidar wife of a Naidu husband.
4. Mohammedan wife during period of iddat.
 5. . Abandoned wife.
6. A deaf and dumb child.
7. Son and daughter unable to maintain themselves.
8. Both legitimate and illegitimate child unable to maintain itself and parents
unable to maintain themselves are now entitled to maintenance.
I. PERSONS NOT ENTITLED TO MAINTENANCE:
1. Daughter-in-law.
2. Adopted child.
3. When father is separate.
4. Divorced wife after remarriage. If she is getting maintenance it will be
cancelled from the date of remarriage.
5. Person taking custody of child.
QUESTIONS FOR REVIEW:
1. State the circumstances under which a Criminal Court is empowered to
grant maintenance of wives and children.
2. Explain the provisions of the Code of Criminal Procedure Code 1973 relating
to maintenance of wives, children and parents.
3. Summarise the law relating to maintenance of wife, children and parents as
provided under the Criminal Procedure Code.
Explain the provisions relating to maintenance under Sec. 125 Cr.P.C. r with
reference to decided cases.
15. MAINTENANCE OF PUBLIC ORDER AND
TRANQUILITY
(Sec. 129 to 148)
___i
(MOST IMPORTANT)
SYNOPSIS:
A. In t r o d u c t i o n
1. Unlawful Assembly (Sec. 129 to 132)
2. Public Nuisance (Sec. 133 to 143)
3. Urgent cases of nuisance or apprehended danger (Sec. 1 4 4 &
1 44- A)
4. Disputes as to immovable property (Sec. 145 to 148)
B. Distinction between (Sec. 1 4 4 and Sec. 1 4 5 )
A. INTRODUCTION:
Regarding maintenance of public order and tranquility, the general
problem that arises to Police Officers and Magistrates is of four kinds.
1. Unlawful assembly.
2. Public nuisance.
3. Urgent cases of nuisance or apprehended danger. Disputes as to
immovable property.
1.. UNLAWFUL ASSEMBLY: (Sec. 129 to 132)
a. When five or more persons join together with the intention to cause a
disturbance of public peace, such assembly of persons is called an unlawful
assembly. By way of dispersing such assembly, unlawful acts are prevented from
being committed. (Sec. 129)
b. Any Executive Magistrate or Police Officer not below the rank of a Sub-
Inspector may command an unlawful assembly to disperse. If the assembly
does not disperse, force may be used. Sometimes, arrest and confinement of
the members of the assembly are also made.
 Before conviction, the prosecution must prove that there was a common
object or the acts were done in furtherance of such common object by the
members of the unlawful assembly. The force used must be moderate and
proportionate to the nature and circumstances of each case. (Sec. 130)
c. Sometimes armed forces may be used to disperse unlawful assemblies. The
officer commanding the troops must obey the order of the Magistrate.
On the ground of State necessity there may be summary suppression of
riotous assemblies by using force even to the extent of causing death to the
member. The term "armed forces" include Military and Air forces.
No officer wrongfully ordering the dispersion of assemblies can be
prosecuted without obtaining sanction from the State Government or Central
Government as the case may be. (Sec. 131 & 132)
2. Public NUISANCE: (SEC. 133 TO 143)
A nuisance is an obstruction, 'risk* or injurv to health, comfort or
convenience to others. If it causes damage to the public in general, it becomes a
'public nuisance'.
The following six kinds are termed as 'public nuisance' under the Criminal
Procedure Code:
1. Unlawful obstruction of any public way, river or channel lawfully used by the
public.
2. Any trade injurious to public health or comfort.
3. Any construction of building or any disposal of substances likely to explode.
4. Any building, tent or tree likely to fall and cause injury to person.
5. An unfenced tank, well or pit in a pubiic way or plaee.
6. Any dangerous animals.
The Magistrates are authorised to order for abatement (removal) of such
nuisance.
The order by Magistrates may be three kinds:
a. Conditional order.
b. b. Absolute order.
c. c. Injunction.
a. conditional order: (Sec. 133 to 137)
1. The District Magistrate or Sub Divisional Magistrate or Executive Magistrates
are empowered to make conditional o r d e r s to r e m o v e s u c h n u i s a n c e
o r obstruction.
2. To desist from any trade injurious to public health.
3. To prevent or stop the construction of any building.
4. To remove or repair any building, tent or tree.
5. To fence such tank, well or pit.
6. To destroy or confine such dangerous animals.
The Magistrate issues an order and it is notified by proclamation. If
the person against whom the order is passed does not comply with it, then he
is liable to be prosecuted by way of penalty, etc.
b. Absolute order:
If the person against whom the order is passed appears and gives
evidence before the Magistrate, the Magistrate after hearing such person
may declare an absolute order, permanently depriving such person from
committing nuisance or may cancel the conditional order of nuisance.
(Sec. 138)
 For the purpose of enquiry, the Magistrate may direct all local
investigation. He may also summon and examine experts. When the order,
becomes absolute, the Magistrate gives notice to the concerned person and
require him to perform the act as directed by the order
within a stipulated time.
If such person disobeys the order, he is held liable to pay penalty.
The Magistrate may also cause the act to be performed by some other
person and may recover the cost from the disobeying person. (Sec. 139
to 141)
c. Injunction:
The Magistrate may issue an injunction during the period of enquiry
to prevent imminent danger of
injury to the public. If the injunction is not obeyed, he may himself take steps to
prevent it. (Sec. 142 & 143)
3. Urgent cases of nuisance or apprehended danger: (SEC.
144 & 144A)
The Magistrates are armed with special powers to take quick action in
cases of emergency. A Magistrate may declare the suspension of some
fundamental rights.
Such emergency circumstances are temporary and are valid only for
two months but with the permission of the State Government, it may be extended
upto six months. The power conferred on the Magistrate is an extraordinary
power and hence he must resort to use of such powers under extreme
circumstances only.
The Magistrate by his own motion or on the application of the aggrieved
persons may revise or alter the order issued by him. H e must also give an early
opportunity to the aggrieved person to represent his case.
Power to prohibit carrying arms in procession or mass drill
or mass training with arms: (Sec. 144A)
The District Magistrate may, for the preservation of public peace or
public safety or for maintenance of public order, by public notice or by order,
prohibit the carrying of arms in any procession or mass drill or mass training with
arms in any public place.
4. DISPUTES AS TO IMMOVABLE PROPERTY: (SEC. 145 TO 148)
The disputes regarding use of land or water or boundaries generally
lead to breaches of peace. Though the settlement of disputes is through a Civil
Court, the Magistrate has ancillary jurisdiction.
E.g: Disputes relating to right to possession ot a bund temple, right to
mining and boring rights, fishery, possession of standing crops, ferry, e t c .
If the Executive Magistrate receives a report from the Police Officer or
any other person t h a t a d i s p u t e l i k e l y to cause breach of the peace e x i s t s ,
then he may order the concerned parties to the dispute to attend t h e Court in
person to settle such disputes. The summons is served by publication or affixing in a
conspicuous place
near the place of dispute.
The Magistrate hears the parties, receives all evidence and peruses
records. He issues a preliminary order authorising a particular person to possess
and enjoy it and the person considered to be the encroacher to vacate the place. If
the subject matter is any perishable object, he may order for its sale.
 Thus, the object of the provisions regarding settlement of disputes
relating to immovable properties is to maintain public tranquility. The Magistrate
has also the power to attach the subject matter of the dispute and appoint a
receiver till the dispute is settled conclusively.
The term 'land or water' includes buildings, markets fisheries, crops or
other.produce of land and the rents or profits of any such property.
When any party to the proceedings before the Magistrate, dies the
Magistrate may make his legal heirs as party and continue the enquiry. All persons
claiming as legal representatives may be made as party to proceedings.
If the Magistrate is of the opinion that the crop or the produce of the
subject matter of dispute is subject to a speedy and natural decay, he may make
order for proper custody or sale of the property.
The Magistrate can issue summons to any witness on the application of
either party directing him to attend or produce any document or thing.
On emergencies, the Magistrate can order attachment of the subject
matter of dispute. He can do so if he is unable to decide who was in possession of
the property. The attachment of property continues till the competent Civil Court
determines the rights of the parties.
The Magistrate has also power to withdraw his order of attachment at
anytime, if he feels that there is no longer any likelihood of breach of peace
regarding
the property.
The Magistrate can also appoint a Receiver if the competent Court has
not appointed the Receiver. The Receiver will have all the powers as authorised by
Criminal Procedure Code.
The Receiver appointed by Magistrate has to hand over the possession
of the subject matter to the Receiver appointed by the Civil Court. Immediately after
his
appointment.
In case of disputes concerning right to use of land or water, the
Magistrate orders for removal of any obstruction in the use of land or water.
The District Magistrate or Sub Divisional Magistrate can order for local
enquiry by any Magistrate subordinate to him. He shall also order the party to
bear the expenses there of.
Amresh Diwari Vs. L a l i t h a Prasad Dubey, AIR 2000 SC 1504:
The Supreme Court has held that only in certain cases where civil suit
is pending for possession or for declaration of title in respect of same properties
and where reliefs regarding protection of the property concerned can be applied
for and granted by Civil Court, the proceeding under Section 145 should not be
allowed to continue.
This is because the Civil Court is competent to decide the question of
title as well as possession between the parties and the orders of the Civil Court
would be binding on the Magistrate. However, it can't be said that in every case
where a civil suit is pending, proceedings under Sec. 145 in Criminal Court
would never lie.
B. DISTINCTION BETWEEN SECTION 144 AND
SECTION 145:
Sec. 144:
1. An order Sec. 144 can be made under various circumstances including a
danger of breach of peace.
2. It is discretionary.
3. Sec. 144 can be invoked in any circumstances.
4. The scope of Sec. 144 is narrow.
Sec. 145
1. Sec, 145 applies only where there is a danger of breach of peace in respect of
property or water, etc
2. It is mandatory.
3. Only where there is likelihood of breach of peace on account of dispute of
property or water it can be invoked.
4. The scope under Sec. 145 is wide and the Court may
inquire into the dispute as to the possession of the
parties.
UNIVERSITY QUESTIONS FOR REVIEW:
1. Discuss the power of the Magistrate to prevent breach of peace.
where there is a dispute concerning land
2. Summarise the law relating to dispute as to possession of immovable
properties under the CriminalProcedure Code.
3. Under what circumstances can a Magistrate order for the removed of
a 'public nuisance' and who are competent to take such action?
4. Outline the powers of the Magistrate regarding the abatement of
public nuisance under the Criminal Procedure Code.
5. What is public nuisance? Explain the powers of magistrate to deal
with it.
6. W r i t e s h o r t n o t e s o n : ( a ) U n l a w f u l a s s e m b l y (b) Public
nuisance.