Introduction

• Section 125 of the Code of Criminal Procedure, 1973 (CrPC) provides that any person who has sufficient means to maintain himself cannot deny to maintain his wife, children and parents if they are not able to maintain themselves.
• The provisions of maintenance of the Criminal Procedure Code,1973 are applicable to persons belonging to all religions and have no relationship with the personal laws of the parties.

Maintenance to Wife

• Section 125 (1) (a) of Criminal Procedure Code, 1973 provides that if any person having sufficient means neglects or refuses to maintain his wife, who is unable to maintain herself, then in such a case a magistrate of the first class may upon proof of such neglect or refusal, order such person to pay a monthly allowance at such monthly rate which the magistrate thinks fit.
• Wife here includes a woman who has been divorced by or has obtained divorce from her husband and has not remarried.
• The ‘wife’ under Section 125 (1) (a) means a legally married wife and can be of any age, minor or major.
• The wife is not allowed to receive an allowance from her husband in three cases-
  • if she is living in adultery, or
  • if she refuses to live with her husband and without any sufficient cause, or
  • if they are living separately by mutual consent.
• While passing any order under Section 125(1) (a) it has to be kept in mind that the husband have sufficient means and also that the wife after separation does not sufficient money to maintain herself.
• The order for interim maintenance can also be passed by the court while the case is pending.

Maintenance to Child

• Section 125(1)(b) provides for maintenance to a child unable to maintain itself. The child here can be legitimate or illegitimate, whether married or not.
• Section 125 (1)(c) provides for maintenance to legitimate or illegitimate child (not being a married daughter) who has attained majority but due to physical or mental abnormality or injury is unable maintain itself.
• The magistrate, on proof of neglect or refusal to maintain the child, passes an order to pay monthly allowance at such fixed rate as it deems fit to be paid from time to time and to such person as the magistrate directs.
• However, the Magistrate may order the father of a minor female child referred to in Section 125(1)(b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.
• Here 'minor' means a person who, under the provisions of the Indian Majority Act, 1875 is deemed not to have attained his majority.
• A Muslim minor girl would be entitled to get maintenance from her father even after the enforcement of Muslim Women (Protection of Rights on Divorce) Act, 1986.
• The word child is not defined in the code. It means a male or female person who has not reached full age, i.e., 18 years as prescribed by the Indian Majority Act, 1875 and who is incompetent to enter into any contract or to enforce any claim under the law.

Maintenance to Parents

• Section 125(1) (d) provides for maintenance to father and mother who is unable to maintain himself or herself.
• A magistrate on proof that there has been refusal or neglect on the part of such person who has sufficient means may order to pay monthly allowance at such fixed rate as it thinks fit which would be paid from time to time to such person as the magistrate.
• The daughter whether married or unmarried would also be liable to maintain the parents as the Indian society casts a duty on the children to maintain the parents and this social obligation equally applies to a daughter.
• Section 125 of the code does not clearly state whether 'father' or 'mother' include 'adoptive father' or 'adoptive mother' or 'stepfather' or 'stepmother'.
• Though the 'mother' shall not include 'stepmother', a childless stepmother may claim maintenance, under Section 125 of the code, from her stepson provided she is a widow or her husband, if living, is also incapable of supporting and maintaining her and if has natural born sons and daughters and her husband is alive and capable of earning, she cannot claim maintenance from her stepson.
• If there are two or more children the parents may seek the remedy against anyone or more of them, at the place or places where they live.
• Section 125 does not contemplate the mother to pay maintenance to father or son and daughter, as the case may be.

Essential Conditions for Maintenance

• Sufficient Means to Maintain: The person from whom maintenance is claimed should have sufficient means to maintain the person or persons claiming maintenance. The word 'sufficient means' should not be confined to the actual pecuniary resources but should have reference to the earning capacity.
• Neglect or Refusal to Maintain: It has to be proved that the person from whom maintenance is claimed has neglected or refused to maintain the person claiming maintenance.
• A Person Claiming Maintenance Must Be Unable To Maintain Himself: The requirement to pay maintenance should be only in respect of persons who are unable to maintain themselves.

Procedure for Maintenance

Section 126 of CrPC deals with ‘Procedure for maintenance’.

• Proceeding under Section 125 may be taken in the following district:
  • Where he is, or
  • Where he or his wife resides, or
  • Where he last resided with his wife or mother of an illegitimate child.
• Evidence to be taken in the presence of a person against whom maintenance is to be ordered.
• If a person is willfully avoiding summons, then ex-parte evidence is taken in that case.

Alteration in Allowance

• Section 127 CrPC provides for ‘Alteration in Allowance’. Alteration means change in the monthly allowance, that is it may decrease or increase according to the change in the conditions of the parties.
• According to Section 127(1) if a magistrate ordered to give allowance for maintenance under Section 125 according to the conditions of parties at that time, but if the present conditions of parties have changed, then he can also order to alter the allowance.
• According to Section 127(2), the Magistrate shall cancel or revoke any order given under Section 125 by him, if it appears that it should be cancelled in consequences of any decision of the competent Civil Court.
• According to Section 127(3), where an order has been made in favour of women under Section 125, then the magistrate can cancel the order in the following case:
  • If a woman is remarried after divorce.
  • If a woman has taken allowance under any personal laws after divorce.
  • If a woman has voluntary leave her right to maintenance.
• According to Section 127(4), the Civil Court shall take into account the sum which has been paid to such person as monthly allowance for maintenance and interim maintenance under Section 125 at the time of making any decree for the recovery of any maintenance or dowry.

Enforcement of Order of Maintenance

• Section 128 deals with ‘Enforcement of order of maintenance’.
• A copy of the order under Section 125 is given to that person free of cost in whose favour it is made. In case the order is in favour of children, then the copy of the order will be given to the guardian of children.
• If any Magistrate has made an order under Section 125, then any Magistrate of India can enforce this order where that person lives who have to give maintenance.
• The Magistrate has to satisfy two conditions before enforcement of order:
  • Identity of parties, and
  • Proof of non-payment of allowances.

Case Laws

• Savitaben Somabhai Bhatiya v. State of Gujarat (2005):
  • The Supreme Court held that Section 125 of the Code of Criminal Procedure, 1973 has been enacted in the interest of a wife and one who wants to take the benefit under sub-section (1)(a) of Section 125 has to establish that she is the wife of the person concerned.
• Vikas v. State of Uttar Pradesh (2021):
  • The Allahabad High Court laid down that the Magistrate has the right to alter the amount of the maintenance to be paid, if he thinks that there is a change in the circumstances of the individual who has been paying or receiving the monthly allowances.
• Mohd. Ahmed Khan v. Shah Bano Begum (1985):
  • The Bench of the Supreme Court declared that a Muslim divorced woman who cannot maintain herself is entitled to maintenance from her former husband till the time she gets remarried.

Conclusion

• The provision has been formulated with the intention of achieving a social aim and for the welfare of the vulnerable class.
• Chapter IX of the Code of Criminal Procedure is essential for the protection of the rights of the divorced wife, children and aged parents. It is made to protect them from unusual livelihood. Maintenance is the duty of everyone who has sufficient means for the same.
• However, it should always be kept in mind that there should not be any misuse of the provision. The court must apply its judicial mind and examine every minute detail of the husband and the dependents regarding their means to livelihood, and then accordingly pass an order.