Maintenance of wives, children, parents under CrPC (Nanditta Batra)

CrPC is not just confined to adjudication of guilt, it has certain other purposes and one of such
purposes is concerned with prevention of crime.

Meaning: The term ‘maintenance’ has not been defined in the Code. The term should not be
narrowly constructed as limited only to food, clothing and shelter. It also includes means of
subsistence, supply of necessaries, aid, support and assistance which one person needs for his or
her living. It varies according to the position and status of the person.

Why maintenance? - it is generally felt that when a person does not have a means of living,
then he might resort to certain criminal tendencies, maybe for the fulfilment of his basic needs,
which can also be one of the reasons why people resort to crime. The state would not want
people to take such extreme steps and therefore as a provision for social justice, the Code has the
provision in chapter IX which provides for maintenance in certain cases. Maintenance here is
paid to a category of persons who are mentioned here and the purpose is to uphold the dignity of
the person.

Supreme Court in Bhagwan Dutt v. Kamala Devi, (1975) 2 SCC 386 laid down following
objectives of Section 125 of the Code:-

- The remedy under Section 125 is speedier and economical than the remedy enforced by
way of civil courts. So, it will be beneficial for needy persons.
- It aims at preventing destitution and vagrancy leading to commission of crime.

Scope: These provisions do not fully determine the status of personal rights of the parties. The
court would take prima facie view of facts and it need not go into the details of matrimonial
dispute.

Mohd. Ahmed Khan v Shah Bano - SC held that provisions of 125 are secular in nature and are
applicable to parties irrespective of their religion and personal laws.

Nand Lal Mishra v Kanhaiya Kumar Mishra - Relief u/s 125 is essentially civil in nature.
However the findings are not final and the parties can agitate their rights in a civil court even
after the order of the Magistrate.
Nanak Chandra v. Chandra Kishor - Provisions contained in Sections 125-128 are applicable
to all persons belonging to all religions and have no relationship with personal law of the parties.

41st Law Commission Report: primary justification of having 125 is speedy and economical
remedy as compared to that of the civil courts.

Who can apply for maintenance? (125(1)) There are 4 categories of people who are entitled to
claim maintenance:

1. Wife can claim maintenance from her husband provided she’s unable to maintain herself.
It includes a divorced woman who has not remarried, u/s 125(b). The wife may be of any
age, major or minor. However there are certain disentitlements u/s 125(4): Adultery,
Refusal to live with the husband w/o sufficient reasons (what is sufficient reason depends
on the facts and circumstances of each case), living separately by mutual consent.

What is the degree of this relationship that needs to be proved and can a presumption be
drawn in favour of parties who have lived together as husband and wife? What about the
situations of live-in partners?

Yes, s 125 applies to a wife and she should be a legally married wife, but here the
marriage need not be strictly proved. There is, in many cases, presumption of marriage.
Long cohabitation gives rise to presumption of marriage. There may be cases where two
adults have lived together as husband and wife, they may not have performed the rituals
and ceremonies as per the personal law applicable, however if they are living together as
husband and wife, there’s a presumption in their favour. Therefore in such cases, on this
prima facie evidence of cohabitation, the lady can claim compensation u/s 125 CrPC.
This has been held in the case of Kamala vs MR Mohan Kumar.

Kamala vs MR Mohan Kumar

Facts: Kamala cohabited with MR Mohan for 6 years from 1998 to 2004, where they
were living together as husband and wife. The argument of the lady was that they had
married secretly in a village temple where not many people were invited, and out of this
wedlock, two children were born. However, the husband, later on developed feelings for
another colleague of his and married that woman in front of all of his friends and family.
Immediately after, Kamala filed an application u/s 125. Question was whether she can be
considered the wife of MR Mohan or not. The contention of MR Mohan was that she
wasn’t his wife and he was married to the other woman concerned.

HC of Karnataka: respondent appellant not being the legally wedded wife, is not entitled
to maintenance - appeal to SC.

SC rejected the contention and said that they were being treated as husband and wife by
the people of the village and therefore strict proof of marriage not required u/s 125.

When the parties live together as husband and wife, there is a presumption that they are a
legally married couple for claim of maintenance of wife u/s 125 of CrPC.

Referred to Chanmuniya v. Virendra Kumar Singh Kushwaha - broad and expansive

interpretation should be given to the term wife to include even those cases where a man
and a woman have been living together for a reasonably long period of time and strict
proof of marriage should not be a precondition u/s 125 of the CrPC, so as to fulfil the true
spirit and essence of the beneficial provision of maintenance u/s 125 of the CrPC. Such
an interpretation would be a just application of the principles enshrined in the Preamble
to our Constitution, maintaining and upholding the dignity of the individual.

Who can grant maintenance?

JMFC is empowered to grant maintenance (order a person to make a monthly allowance

for maintenance). 125(1) - Magistrate may order the father of a married female child for
maintenance until she attains her majority if her husband is not possessed of sufficient
means.

Conditions when liability to maintenance arises u/s 125?

Section 125 lays down following circumstances when a person is liable to maintain his
dependents-

1. He must have sufficient 'means': The person must have sufficient means to maintain.
The means contemplated here are not confined to visible means only like land, income,
property etc. If a person is capable of earning then he must be held liable to maintain.
2. Neglect or refusal to maintain: There is duty upon the person to maintain his
dependents. Failure or omission to perform such duty without just cause entitles persons
mentioned in Sec-125 to claim maintenance. Also, a husband who makes it difficult for
the wife to live with him and who fails to maintain her if she lives elsewhere, he is said to
neglect or refuse to maintain his wife. Neglect or refusal to maintain may be by word or
conduct. For instance, bigamy is allowed under Muslim law and husband is not
criminally liable for contracting a second marriage. However, a Muslim wife would
surely be entitled to live separately and claim maintenance solely on the ground that the
second marriage of her husband has caused her mental agony and cruelty. In such a
situation, the husband cannot take shelter of his personal law and claim immunity from
Section 125. [Begum Sabano v. A.M. Abđul Gafoor, (1987) 2 SCC 285).

3. Dependents unable to maintain themselves: It is necessary that dependents mentioned

in Section 125 are unable to maintain themselves i.eThere is absence of source of
maintenance.

Circumstances when wife is not allowed to claim maintenance?

1. Wife living in adultery (Section 125 (4)]: If wife is 'living in adultery' then she will be
disentitled to claim maintenance. It must be noted here that a single act of adultery would
not disentitle the wife from claiming maintenance. The expression living in adultery'
means an adulterous course of life.

2. Wife living separately without just cause [Section 125 (4)] : The wife should not be
living separately with her husband without just cause. Explanation to Section 125 (3)
further provides that where husband keeps a mistress, it will be a just ground to refuse
from living with him.

3. Wife living separately by mutual consent [Section 125 (4)] : If husband and wife are
living separately by mutual consent, the latter is disentitled from claiming maintenance.
A divorced wife is not covered under this exception.

4. Remarriage of divorced wife (Section 127 (3) (a)]: If the divorced wife remarries then
the court will cancel her order of maintenance.
 5. Payment of dower [Section 127 (3) (b)]: If the wife who is divorced has received the
whole sum payable to her on such divorce under personal or customary law, her
maintenance order will be cancelled. Supreme Court in Bai Tahira v. Ali Hussain, (979)2
SC 316 held that the amount of sum payable under customary or personal laws should not
be meagre but reasonable keeping in mind her future needs.

6. Waiver (Section 127 (3) lf the divorced wife has voluntarily waived her right to claim
maintenance, her maintenance order will be cancelled.

7. Order of civil court [Section 127 (2)): lf it appears to Magistrate that order under
Section 125 of the Code shall be cancelled pursuant to decision of civil court, it may
cancel the same.

INTERIM MAINTENANCE

- The Code of Criminal Procedure (Amendment) Act, 2001 inserted proviso to Section 125
(1) of the Code. It provides for interim maintenance to claimants under Section 125.
- According to this proviso, the Magistrate of first class may during the pendency of
proceeding under Section 125, order the person against whom proceedings is initiated to
make a monthly allowance for interim maintenance and also the expense of proceeding
that magistrate considers reasonable.
- Such payment will be made from time to time as the Magistrate directs. Such application
for interim maintenance shall be disposed of within 60 days from the date of service of
notice of application under section 125. Such interim maintenance is provided in order to
support the claimant during the pendency of proceedings under Section 125 if they are
unable to support themselves or bear the expenses of the proceedings.

FAILURE TO PAY

Section 125 (3) provides that where a person fails without sufficient cause to comply with the
order, for every breach of order, a warrant may be issued for levying fines and he may also be
sentenced, for the whole or any part of each month's allowance remaining unpaid, to
imprisonment for a term which max extend to 1 month or until payment if sooner made. For the
issuance of a warrant for the recovery of any amount due, an application should be made to the
court within a period of 1 year from the date on which it becomes due.

ALTERATION IN ALLOWANCE (Sec. 127)

Cancellation of maintenance order - S.125(5) + S.127(2),(3)

Section 127 provides that alteration in allowance or cancellation of order of maintenance may be
made in following circumstances:

1. Due to the change in circumstances of the parties.

2. Due to a decision of a competent civil court.
3. Where a divorced woman remarried.
4. Where a woman has been divorced by her husband and she has received the whole sum which
was payable on such divorce under any customary or personal law applicable to the parties.
5. Where a woman has obtained a divorce from her husband and she had voluntarily surrendered
her rights to maintenance or interim maintenance after her divorce.

Section 127(4) provides that at the time of making any decree for the recovery of any
maintenance or dowry by any person, the Civil Court shall take into account the sum which has
been paid to, or recovered by such person in pursuance of the order made under Section 125.

Enforcement of maintenance order [Section 128] - Section 128 provides for enforcement of the
maintenance order. It provides that order may be enforced by any Magistrate in any place where
the person against whom it is made may be found.

WHERE DOES THE APPLICATION LIE AND WHAT IS THE PROCEDURE? S.126

Territorial Jurisdiction - S.126(1)

Evidence in presence of accused - S.126(2) - Ex parte only if wilful neglect by the respondent.
But ex parte can be set aside - 3 months. Costs can be ordered.

Procedure - where the respondent resides, that primarily has to be the place where the application
is to be filed. It is a civil wrong and not a criminal offence. Or it can be the place where he and
his wife last resided, the place of matrimonial home, or even at the place where his wife resides,
the wife’s place of residence. In case of parents - where the son or the daughter resides.

2. MINOR CHILDREN

- Both legitimate and illegitimate children are covered u/s 125 provided that they’re
minors. As long as they’re minor as per the majority act 1875. Any person who is less
than 18y, is regarded as minor. If it's a minor child, and he or she has married, then the
marriage is in no way stopping the child from entitling the claim from the father. It is
only when a married major daughter cannot claim.

But now as per Independent Thought v UOI - To curb child marriage - sexual intercourse
or sexual acts by a man with his own wife, the wife not being under eighteen years of
age, is not rape (s. 375).

Q. Whether the minors are entitled to claim maintenance from their father even if they are
in custody of the mother?

Yes, as per the full bench of Pb & Haryana HC in Balbir Singh vs Hardeep Singh

In the case of a wife, the husband can show that her refusal to live with him was
unjustified and can thereby get rid of his liability to maintain her. In the case of a child,
however, no such course is open to the father. The legislature must have been aware of
the impracticality of forcing the child to live with the father if the mother was living
separately and that is why the husband was only granted the right to make an offer to
maintain the wife and not the child. The only natural inference of this would be that it
was intended that the child be maintained wherever it is, as in a large no. of cases, it may
not be possible for the child to comply with the desire of the father to come and live with
him.

Held,
1. If the child was living with the mother who was its natural guardian, the father is
bound to maintain it and it is not open to him to impose a condition that the child
must live with him.
 2. Even in a case where the father is the natural guardian, but the child is in the
custody of the mother, father’s obligations to maintain the child subsists and he
cannot impose a condition requiring the child to come and live with him in the
case the child has not attained the age of discretion or is not living with the
mother of its free will or volition.
3. In such a case, in order to escape his liability to pay maintenance allowance, the
father must obtain custody of the child from the proper court, but till the custody
is obtained, the child must be maintained wherever it is.
4. Father’s liability to maintain the child does not cease merely because the child has
attained the age of discretion but is living with the mother on account of natural
love and affection or attachment with her. Till the father gets the custody of the
child, it can successfully claim maintenance.

3. MAJOR CHILDREN

- Major Children cannot claim in any condition from the parents, particularly married
daughters cannot claim from her father. However the only exception is that if there is any
physical or mental abnormality or injury, thereby unable to maintain himself/herself, then
only the major children can claim from the father. Again, if such a child is a married
daughter then she has to claim from her husband and not from her father. She can claim
from her father until she attains the age of majority.

4. FATHER OR MOTHER

- u/s 125, father or mother are also entitled to claim maintenance. The question is whether
the liability is only of the son or the daughter.The wordings in ec 125 clearly states that
“any person” is liable to give maintenance to his father or mother.
- Vijay Manohar Arbat vs Kashirao Rajaram Sawai - SC has held that any person would
include both son and daughter. So maintenance can be claimed from a daughter including
that of a married daughter. However, the married daughter should have sufficient income,
separately from her husband. Parents can claim maintenance from her separate personal
income only. Therefore it is not a mere moral obligation but a legal obligation.
 - Whether it includes step father and step mother? - It has been held that step parents can
claim maintenance u/s 125 only if they don’t have any natural children of their own.

Section 144 CrPC: Order in urgent cases of nuisance and apprehended danger

Crime control is also one of the purposes of CrPC.

Who can issue order u/s 144? - Orders are issued by executive authorities. There are limited
ways in which executive authorities can also issue these orders. It is not a judicial order. The first
person authorised to issue orders u/s 144 is the District Magistrate. If not him, then the sub
divisional magistrate or any other executive magistrate specially empowered by State Govt.

When can they issue order u/s 144 and what is the nature of this order?

The order can be issued to prevent the following 5 situations: - (there is a likely of the occurrence
of the event and hence preventive action needs to be taken) -

1. Obstruction, annoyance or injury to any person lawfully employed

2. Danger to human life, health, safety
3. Disturbance of the public tranquillity
4. Riot or
5. Affray

Prior Inquiry before issuing order:

Before issuing the order u/s 144 CrPC, the DM or any authorised magistrate should be of the
opinion that -

1. There’s sufficient ground for proceeding under this section i.e. the order is likely to
prevent obstruction, annoyance or injury to any person lawfully employed or danger to
human life, health or safety or disturbance to the public tranquillity, and
2. Immediate prevention or speedy remedy is desirable.

The phrase opinion suggests that it must be arrived at after a careful inquiry by the Magistrate
about the need to exercise the extraordinary power conferred under the provision.
Babulal Parate v State of Maha - there is no express mention anywhere in s.144 that the order of
the magistrate should be preceded by an inquiry. But the section must be construed as a whole.

The latter part of sub-s (1) of s.144 specifically mentions that the order of the magistrate should
set out the material facts of the case. It would not be possible for the magistrate to set out the
facts unless he makes an inquiry or is satisfied that about the facts from personal knowledge or
on a report made to him which he prima facie accepts as correct. Clearly, therefore the section
does not confer an arbitrary power on the magistrate in the matter of making an order.

What does order relate to?

- To abstain from a certain act (prohibitory) or

- To take certain order with respect to certain property in his possession or under his
management (mandatory).

Procedure for issuing an order u/s 144

- Written order - order u/s 144 must be a written order

- Stating material facts of the case - the order cannot be a blanket order. It must set out the
material facts of the case. The material facts must indicate the reasons which weighed
with the magistrate to issue an order u/s 144 CrPC.
- Served in manner provided u/s 134
- Can be ex parte u/s 144(2)

Un-notified orders/ Un reasoned orders: Anuradha Bhasin v UoI (J&K Special POS Case)

facts : post the constitutional amendment of abrogation of sec 370, there was apprehension of
terrorist activities and threat to law and order due to which certain actions were taken by the
central govt. The state was already under the rule of the governor, therefore the central govt
issued orders immediately. The order was to totally shut down communications within J&K.
Leaders of political parties were issued under house arrest. Freedom of press was curtailed.
Effectively a lockdown of some sort was imposed. It was said that these lockdown measures
were imposed after obtaining the orders from the magistrate however the copies of those orders
were not notified. They were not published orders, as is required. The non notification of these
orders were challenged before the SC.
SC, while showing their concerns reg how centre had handled the situation post 370, held that,

- Non Production of the orders by State is illegal: Mandate to produce the orders passed by
the Magistrate.
- Order passed u/s 144 CrPC have direct consequences upon the fundamental rights of the
public in general. Such a power, if used in a casual and cavalier manner would result in
severe illegality. This power should be used responsibly, only as a measure to perverse
law and order. The order is open to judicial review, so that any person aggrieved by such
action can always approach the appropriate forum and challenge the same. But the
aforesaid means of judicial scrutiny will stand crippled if the order itself is unreasoned or
unnotified.
- It is for the magistrate and the state to make an informed decision about the likely threat
to the public. The state is best placed to make an assessment of the threat to the public
peace and law and order.However, the law requires them to state the material facts for
invoking this power. This will enable judicial scrutiny and a verification of whether there
are sufficient facts to justify the invocation of this power.
- Orders passed mechanically or in a cryptic manner cannot be said to be passed in
accordance with law.
- One of the most important criteria to test the reasonableness of such a measure is to see if
the aggrieved person has the right to make a representation against such a restriction. It is
the fundamental principle of law that no party can be deprived of his liberty w/o being
afforded a fair, adequate and reasonable opportunity of hearing. Therefore in a situation
where the order is silent on the material facts, the persons aggrieved cannot effectively
challenge the same.
- It is imperative for the state to make such orders public so as to make the rights available
u/s 144(5) CrPC, a practical reality.
- Order u/s 144 must be proportional

Ratio of the case:

- The powers u/s 144 CrPC being remedial as well as preventive is exercisable not only
where there exists present danger, but also when there is an apprehension of danger.
However, the danger contemplated should be in the nature of an emergency and for the
 purpose of preventing obstruction and annoyance or injury to any person lawfully
employed.
- The power u/s 144 CrPC cannot be used to suppress legitimate expression of opinion or
grievance or exercise any democratic rights
- An order passed u/s 144 CrPC should state the material facts to enable judicial review of
the same. The power should be exercised in a bona fide and reasonable manner, and the
same should be passed by relying on material facts, indicative of application of mind.
This will enable judicial scrutiny of the aforesaid order.
- While exercising the power u/s 144 the magistrate is duty bound to balance the rights and
restrictions based on the principles of proportionality and thereafter apply the least
intrusive measure
- Repetitive orders should not be passed.

To whom?

- Particular individuals
- Persons residing in a particular place or area or
- Public generally

Duration of the Order

- Can be rescinded or altered by the magistrate - on its own or application of aggrieved

(S.144(5))
- Maximum - 2 months (S.144(4))
- Extendable by 6 months - notification by state govt (proviso to s. 144(4))

- Preventing Danger

● Human life
● Health or
● Safety
- Preventing any riot or an affray

If extended can be rescinded by State Govt (144(6)) - on its own or application of

aggrieved
- While considering any application for modification or alteration, the magistrate or the
state govt is required to act judicially i.e. give a personal hearing.