Chapter-IX: Maintenance of Wives, Children and Parents1

Purpose and Policy

Chapter 9 of CRPC (Sections 125-128) provide for speedy, effective and inexpensive remedy
against persons who neglect or refuse to maintain their dependent wives, children and parents.
These provisions are a measure for social Justice and fall within the constitutional sweep of
Article 15(3) reinforced by Article 14 and Article 39 (Ramesh Chandra Kaushal v. Veena
Kaushal 1978 SC)
These provisions ensure a protection of equality of sexes and protective discrimination in
favour of the weak, neglected or divorced wives, abandoned children and needy and helpless
parents. They are in a way aimed at preventing starvation and vagrancy relating to the
commission of crime (41st report of Law Commission of India 1969).

These provisions are applicable to persons belonging to all religions and have no relationship
with the personal law of the parties. This chapter is secular in nature and therefore, they apply
upon all person of all religions. However, personal law of the parties is relevant for deciding
the validity of the marriage and therefore they cannot be altogether excluded from
consideration.
The constitutional bench of Supreme Court in Mohammed Ahmed Khan v. Shah Bano
Begum 1985 SC while considering the provision of Section 125 opined that the said provision
is truly secular in character and is different from the personal law of the parties. The court
further held that chapter nine of the CrPC cut across the barriers of the religion and the liability
imposed is founded upon the individual’s obligation to the society to prevent vagrancy and
destitution.
After above judgement, Personal Law Board of Muslim contended that the judiciary is trying
to interfere with the matters related to their religion. Due to the same, parliament passed the
Muslim Woman Protection of Rights on Divorce Act 1986 which limited the liability of
Muslim man to maintain their wife during the Iddat period only. However, later in 2001
Hon’ble Supreme Court in the case of Daniel Latifi v. Union of India (2001SC) held that
Muslim woman can claim maintenance from her husband even after the Iddat period.

Maintenance under Civil Law

Section 18 and 20 of Hindu Adoption And Maintenance Act and Section 25 and 26 of Hindu
Marriage Act 1956 also provides for the provision of maintenance for the wife, minor child
and aged parents. In Savitaben Somabhai Bhatia v. State of Gujarat 2005 SC it was held
that Proceedings under above Sections and proceeding under Section 125 can continue
simultaneously as earlier is a civil proceeding and the latter is a quasi-criminal proceeding.
Both do not restrict each other however overall maintenance granted in the above two
proceedings has to be mutually adjusted as per Section 127(2) and 127(4).

1
Amar Kumar Roy, LL.M., CNLU, Patna.
Who can claim maintenance?
1. Wife
2. Minor child
3. Major child
4. Father and Mother

1. Wife
As a general rule the wife who is unable to maintain herself is entitled to claim maintenance
under Section 125(1)(a). Search wife shall be legally wedded wife and burden to prove the
same upon the petitioner is not extremely strict.
Can a wife from void marriage claim maintenance?
It has been held in Savitaben Somabhai Bhatia v. State of Gujarat 2005 SC, Maintenance
under Section 125 cannot be obtained in the cases of void marriage. On the basis of the same
reasoning the second wife has been held to be not entitled to get maintenance. The court in this
case even took the note of plight of the unfortunate woman who unwittingly enters into wedlock
with a married man however there is no scope to include a woman not lawfully married within
the expression of wife under Section 125. The bench held that this Section can only be amended
by the legislature to include such wife. However in Badshah v. Urmila Badshah Godse
(2013SC) the Court considered a peculiar situation under which if husband knowingly gets into
a second marriage and hence he knows that the marriage is void whereas the second wife is
unaware of that fact then on the basis of principles of equity and justice husband will be bound
to give her maintenance even though the marriage is void as he has duped his second wife.

Can a wife from voidable marriage claim maintenance?

In TK Sundaram v. P. Najima bindu (2019 SC), Husband was impotent at the time of
marriage and on this ground the wife later on avoided the marriage and hence marriage has
now become void. But voidness in this case was not existent from the very inception of the
marriage and this is why Supreme Court held that since wife was not knowing about the
impotency at the time of marriage and husband was aware of the same, husband will be bound
to give her maintenance on the principle of equity and justice. Husband cannot be given benefit
of his own wrongs and hence will be bound to give maintenance under Section 125 of CrPC.
Hence in cases of void and voidable marriage maintenance under Section 125 CrPC cannot be
granted in every case, however it will depend on facts of the case and if wife has been cheated
and was innocent maintenance will be granted.

Can a woman living together as wife claim maintenance under Section 125?
The term wife has to be given a broad and expansive interpretation and it would include even
those cases where a man or woman have been living together as husband and wife for a
reasonably long period of time. The Supreme Court in Badri Prasad v. Deputy Director Of
Consolidation 1978SC has held that a strong presumption arises in favour of wedlock where
the partners have lived together for a long spell as husband and wife. The court has further held
that Section 125 CrPC has been enacted merely to provide a summary remedy to neglected
wives to obtain maintenance and maintenance cannot be denied where there was some evidence
on which conclusions of living together could be reached.

In Savitaben Somabhai Bhatia v. State of Gujarat 2005 SC, it was held that Section 125 is
a provision for social justice and therefore Court has to be liberal in its approach towards the
petitioner. The court will expect the petitioner wife, to prove her lawful marriage with the
respondent, but burden upon the petitioner will not be extremely strict rather, petitioner has to
prove a prima facie case of her marriage and upon that Court may presume the marriage in her
favour and the burden will shift upon the respondent to prove that she is not his lawfully
wedded wife.
If wife proves long cohabitation by testimony of the neighbours then code will presume that
she’s a lawfully wedded wife and burden will shift upon the husband to rebut this fact of
marriage.

Moreover, the reference can also be made to the definition of “domestic relationship” as
defined under the Domestic Violence Act 2005. Therefore maintenance under Section 125
CrPC can also be awarded in the domestic relationship in the nature of live in relationships as
has been held in Chanmuniya v. Virendra Kumar Singh Kushwaha (2010SC).

Can a divorced wife claim maintenance?

Explanation to Section 125(1) defines “wife” and it includes a woman who has been divorced
by or has obtained a divorce from her husband and has not remarried.

Even if wife has been divorced but is living with another person but has not remarried then also
husband cannot deny her maintenance, until she remarries.

Sufficient Means
It means that respondent has sufficient means of income in which petitioner can also be
maintained. There is no rigid formula but court will decide the amount of maintenance as per
the facts and circumstances of the case. The only criteria is that the wife should get some
standard of living as husband would have maintained to her.
If husband is qualified but he’s not working and therefore does not have a source of income,
here also, the court will be tilted in favour of wife and may still order him to maintain her wife
and find source of income. However, if wife is qualified but is not working and claiming
maintenance from her husband then court can compel wife to work but it will keep in mind the
same and will award lesser amount of maintenance.

The court may also take into consideration the fact that whether husband was indifferent or
cruel toward the wife in such a case the Court may award more maintenance.

Section 125(3), 2nd Proviso, Explanation

If wife has deserted the husband and is claiming maintenance then husband can put up
condition that wife has to live with him, to maintain her. However, when wife has reasonable
grounds for leaving his husband, then husband has to give maintenance to her wife without
putting any condition of living with him. Reasonable grounds may include-

• husband has married another woman

• husband is keeping a mistress in the same house
• parents of wife are very ill and there is no one who could care
• Husband has been committing cruelty against her wife, et cetera.
Section 125(4)
Wife shall not be entitled to receive any maintenance from her husband under Section 125
when she is living in adultery.
However, here the term ‘wife’ does not include divorced wife as after divorce wife is not bound
to live with her earlier husband and thus when she lives with another man without marriage
then it would not amount to adultery and on this reasoning, a divorced wife living with another
man can claim maintenance from her earlier husband.

Wife shall also be not entitled to maintenance when she refuses to live with his husband or if
they are living separately with mutual consent. Here also wife does not include divorced wife.

Section 125(5)
After order has been passed in favour of wife for maintenance under Section 125 and husband
proves that-

• wife is living in adultery

• wife refuses to live with her husband without sufficient reasons
• They are living separately by mutual consent
then, in such case magistrate shall cancel the order.

Section 127
Section 125 is about passing of order of maintenance, whereas, Section 127 is about varying
or cancelling the amount of maintenance already granted, on change in circumstances.
Under Section 127(3), where order under Section 125 has been made in favour of woman who
has been divorced by husband, or, has obtained divorce from her husband and if magistrate is
satisfied that-

• after date of divorce woman has remarried, the magistrate shall cancel order of
maintenance. here the order of cancelling the maintenance shall be made effective from
the date when divorced wife remarries
• when maintenance is paid as per customs or personal law then also order of
maintenance by court will be cancelled.
Exception- Danial Latifi Case as discussed above.
• a woman has obtained divorce from her husband and she voluntarily surrendered her
right to maintenance then order of maintenance shall be cancelled from the date of
surrender. This situation does not include where in wife has been divorced by husband.
 2. Minor Child
The minor child, whether son or daughter, whether legitimate or illegitimate who is unable to
maintain itself has to be maintained by the father. The duty has been imposed under Section
125(1)(a).

Section 125 also imposes a duty upon the father in cases of married minor daughter to maintain
them if husband of such minor daughter does not have sufficient means to give the maintenance
to her. In such case she can obtain maintenance totally or partly from her father.
However Section 125 does not impose the same duty on the mother to maintain their child. In
normal circumstances, the petition of maintenance on behalf of child is filed by mother only
and if mother has some source of income then court will consider the same while deciding
amount of maintenance under Section 125 and thus the above fact does not absolve the father
from maintaining his child. Even when mother has been entitled to the custody of the child by
the court or is keeping the child away from the father, father has to provide maintenance to the
child.

It is also immaterial whether the child is the natural born or the adoptive child. Therefore a
child can claim maintenance from her adoptive father.

3. Major Child
Even after attaining majority, a legitimate or illegitimate child is entitled to claim maintenance
if by reason of any physical or mental abnormality or injury it is unable to maintain itself.
However, here child does not include a major married daughter.
In cases otherwise as above discussed, a major child has no right to claim maintenance from
his father.

4. Father and Mother

A father or a mother who are unable to maintain themselves can claim maintenance from their
son or daughter.
In Dr. Vijay manohar Arbat v. Kashirao Rajaram Sawai, 1987SC, the court has clearly
held that even a daughter is liable to give maintenance to her parents if she has sufficient means.
Father can claim maintenance only from his legitimate child and not from his illegitimate child,
however the mother can claim maintenance from legitimate child as well as illegitimate child.
Father and mother also cannot claim maintenance from step children. However if mother is a
childless widow then she can claim maintenance from her stepchild as has been held in Kirti
Kant D. Vadodaria v. State of Gujarat (1996SC).

Procedure
The petition for claiming maintenance under Section 125 has to be filed before a Court of
Judicial Magistrate First Class or Family Court.
Section 126- Proceedings against respondent under Section 125 may be filed against him in
any district-

• where he is
• where he resides or his wife resides
• where he last resided with his wife or with the mother of illegitimate child.
As per Section 126, parents cannot file a suit for maintenance where they reside but only where
respondent resides. In Vijay Kumar Prasad v. State of Bihar 2004SC, The court has held
that all clauses of Section 126(1) will not apply in cases of all petitions rather it has to be seen
from the circumstances as to in what kind of petition which of these clauses will be made
applicable.
During the pendency of the proceeding, the court may also order the respondent to make a
monthly allowance as an interim maintenance to the petitioner. The application for monthly
allowance for interim maintenance shall be disposed of within 60 days from the date of the
service of notice of the application to such person.
If respondent fails to pay monthly instalment, he may be imprisoned for one month or until
payment if sooner made. Here, first warrant is issued which is called distress warrant and
afterwards respondent has to appear before the court and specify the reason for non-payment
of maintenance. If sufficient reasoning is given the court may give further time to the
respondent, however if respondent does not appear on warrant or does not furnish sufficient
reason then he may be arrested and produced before the court.

The application for the above purpose has to be made within one year from the date on which
the maintenance becomes due. Therefore the limitation for non-payment of every instalment
of maintenance is one year.
During trial, as per Section 126, all evidence to maintenance proceedings shall be taken in
presence of respondent or pleader if his personal appearance is dispensed with and shall be
recorded in manner as provided in Summons cases.

If magistrate is satisfied that respondent is willfully avoiding service or neglecting to attend

Court, then in such a case court may hear and determine the case ex-parte. Such ex parte order
may be set aside for good cause shown within three months subject to cost.
Amount of Maintenance- The Court will order the respondent to pay the petitioner such
amount of monthly allowance of maintenance as it deems reasonable a per the facts and
circumstances of the case. (Before 2001 Amendment, the same was fixed as monthly allowance
not exceeding Rs. 500)

Irregularity in proceedings
If magistrate who did not have territorial jurisdiction passes the order of maintenance then as
per Section 462 it will not vitiate the proceedings per se, rather, in such cases failure of justice
has to be proved.
However when magistrate is not empowered by law and he makes an order for maintenance
then the proceeding shall be void as per Section 461(g) (For instance, Maintenance has been
ordered by Judicial Magistrate Second Class who has not been empowered under Section 125
to order maintenance to the petitioner).