Legal Narrative
Abstract
Maintenance laws in India have been established to ensure the financial well-being of individuals who are unable to sustain themselves. One of the key provisions governing maintenance is Section 125 of the Criminal Procedure Code (CrPC)/ Section 144 of Bharatiya Nagarik suraksha sanhita(BNSS).
Section 125 of the CrPC (now Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)) provides a secular, summary legal remedy for the maintenance of destitute wives, children, and parents, operating in harmony with various personal laws in India.The remedy covers a wife (including a divorced wife who has not remarried), legitimate and illegitimate children, an adult child unable to maintain itself because of a disability, and aged parents. This article sets out who can claim maintenance under Section 125 CrPC, what an applicant must prove, how the quantum is fixed, the procedure and enforcement, the Section 144 BNSS equivalent, and the leading judgments.
Keywords:- Maintenance, Section 125 crpc( now section 144 BNSS), women, child, guardian, relationship, personal laws.
Introduction
Section 125 of the Code of Criminal Procedure, 1973 (CrPC)/Section 144 of Bharatiya Nagarik suraksha sanhita (BNSS) 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.
Who Can Claim Maintenance?
Under Section 125 CrPC(now section 144 BNSS) , various categories of individuals can claim maintenance:
Wife: A wife who is unable to maintain herself can seek maintenance from her husband.
Children: Minor children, including legitimate and illegitimate children, are entitled to claim maintenance from their father.
Parents: A person who is unable to maintain themselves and is the parent of someone with the means to provide maintenance can claim support from their child.
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 has sufficient means and also that the wife after separation does not have 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)Crpc /Section 144(1)(b) BNSS 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)Crpc /Section 144(1)(c) BNSS provides for maintenance to a legitimate or illegitimate child (not being a married daughter) who has attained majority but due to physical or mental abnormality or injury is unable to 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)Crpc / Section 144(1)(d) BNSS 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.
Legal Requirements for Claiming 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/145 of BNSS 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/ 146 BNSS provides for ‘Alteration in Allowance’. Alteration in allowance means an order to increase, decrease or remove/cancel the allowance which was ordered by the Magistrate under Section 125.
- According to Section 127(1) if a magistrate is 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 consequence 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 voluntarily 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 persons 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 Crpc / 147 BNSS 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.
Where Else Can the Wife Ask for Maintenance?
Under Hindu Marriage Act, 1955
Under Section 24, in any proceedings under HMA, 1955, like divorce, restitution of conjugal rights, judicial separation, etc., either party having no sufficient means to support themselves will get maintenance pendente lite during the proceedings to take care of expenses of proceedings. Under Section 25, either party may get permanent alimony or maintenance from the other party for their lifetime subject to certain conditions.
Under Hindu Adoptions and Maintenance Act, 1956
Under Section 18, a duty is created on the husband for maintaining his wife and she can seek maintenance while living with or separately from her husband. But this maintenance is only available to Hindu wives and subject to certain conditions.
Landmark judgement
Shabana Bano v. Imran Khan (2009), the question arose whether a muslim divorced wife would be entitled to file for maintenance after divorce under Section 125 of the Cr.P.C. and through which forum. The SC said that even after divorce, a muslim woman is entitled to claim maintenance from her husband under Section 125 of the Cr.P.C. even after the expiry of the iddat period, as long as she does not remarry.
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 son 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.
Mohd. Abdul Samad v. State of Telangana (2024): Reaffirmed that Section 125 CrPC / Section 144 BNSS is religion-neutral, holding that personal law remedies (such as iddat or mahr) do not extinguish a divorced Muslim woman’s right to claim secular maintenance until remarriage.
Danial Latifi v. Union of India, (2001) 7 SCC 740. Deals with the constitutional validity of rights post-Shah Bano and harmony between secular and personal laws.
Rajnesh v. Neha & Ors., (2021) 2 SCC 324.
The most critical contemporary judgment by the Supreme Court of India, which streamlined the law on overlapping maintenance claims and mandated the filing of comprehensive Assets and Liabilities Affidavits.
CONCLUSION
Section 125 of the Criminal Procedure Code is not just a legal provision; it is a beacon of hope for those who may find themselves in dire financial circumstances. It embodies the principles of compassion, fairness, and social justice that are at the heart of a just and equitable society, ensuring that the vulnerable receive the support they need to lead dignified lives.
DECLARATION
“I declare that this article is my original work on the topic allotted to me; that the similarity index
is below 9%; that any use of generative AI is below 15% and has not substituted my own
analysis; and that all authorities have been cited.”
REFERENCES:
- SCC Online / Manupatra / CaseMine
- https://indiankanoon.org/doc/17588886/
- https://advocatepraveshjoshi.com/family-law/maintenance-section-125-crpc-bnss/
- Law Commission of India Reports
- https://www.manupatrafast.com/Defaults/training-manual-courts-judgments-caselaw-database.aspx
- Section 125 of the Code of Criminal Procedure, 1973
- Bharatiya Nagarik Suraksha Sanhita, 2023
