19

CHAPTER-2
PROVISION OF MAINTENANCE U/S 125-128 OF THE CODE OF
CRIMINAL PROCEDURE AND JUDICIAL APPROACH.

Section 125 to 128 of Cr.P.C lay provisions for maintenance of wives,

children and parents. Seetionl25 of the Code gives effect to the natural and
fundamental duty of a man to maintain his wife, children and parents so long as they
are unable to maintain themselves This provision is a measure for social justice and
specially enacted to protect women and children, (also old and infirm poor parents)
and falls within the constitutional sweep of Article 15(3) reinforced by Article 39.1
2.1 Territorial Jurisdiction:
Prior to 1973 the place where the wife resided after desertion or divorce was
not material for granting jurisdiction to the court in a maintenance proceeding. This
caused a lot of hardship to the wifes who had to go all the way to the place where the
husband resided or where they last resided together. A recommendation was therefore
made by the Law Commission to amend the provision and remove this hardship.
Consequently changes were made and the present position is that proceedings under
section 125may be taken against any person in any district - (a) where he is , or (b)
where he or his wife resides, or (c)where he last resided with his wife, or as the case
may be , or with the mother of even illegitimate child. Of late , it has been held by the
Supreme Court that maintenance application may be filed in any court where husband
or wife is residing even temporarily (but not casually).
2.2 Application:
Its provisions apply and are enforceable whatever may be the personal law by
which the persons concerned are governed2 But the personal law of the parties is
relevant for deciding the validity of the marriage and therefore cannot be altogether
excluded from consideration.3 The Supreme Court had held that s. 125 was applicable
to all irrespective of their religion. It was, therefore, applicable to Muslim women

1 Ramesh Chandra Kaushal v. Veena Kaushal, AIR 1978 SC 1807; Chiguruupari Bambasiva Rao v.
Chigurupati Vijayalakshmi, (1997) 11 SCC 84: (1998) 9 JT 482,. Sriram Mamkyama v. Sriram Appoji,
1992 CrLJ 1794 (On).
2Nanak Chand v. Chandra Kishore, AIR 1970 SC 446 : 1970 Cr LJ 522; Maung Tin v. Ma Hmin,
(193) 11 Ran 226 (FB) ; R. Begum v. M.N. Motialla, 1989 Cr LJ NOC 155 (Ori.)
3 Yamunabai v. Anantrao, 1988 Cr. LJ 793 : AIR 1988 SC 644.
 20

also.4 However, thereafter Parliament passed a Muslim Women's (Protection of Rights

on Divorce) Act, 1986, which provides other remedies for Muslim women and allows
them to use the remedy provided by s. 125 only if the husband consents to it. In the
absence of a declaration by the husband, that he would prefer to be governed by
sections 125 to 128 and not under section 5 of the 1986 Act, the divorced Muslim
wife was not granted maintenance.5
This section has nothing to do with conjugal rights but deals with maintenance
only.6 It only provides a speedy remedy against starvation for a deserted wife or child
or parents. It provides for a summary procedure which does not cover entirely the
same ground as the civil liability of a husband or father or son under his personal law
to maintain his wife or child or parents. When substantial issues of civil law are raised
between the parties their remedy lies in Civil Court.7 It has no relationship to the
personal law of the parties.8
Chapter IX is a self -contained one and the relief given under it is essentially
of a civil nature. The findings of a Magistrate under this Chapter are not final and the
parties can legitimately agitate their rights in a Civil Court.9
This remedy is open to a wife or child either legitimate or illegitimate. The
mere existence of a decree of a Civil Court awarding maintenance to a wife does not
oust the jurisdiction of a Magistrate to make an order under this section on the
application of the wife. The Magistrate, however, in such a case, should make it clear
in his order that anything paid under the decree of the Civil Court would be taken into
account against anything which he may order to be paid.10 However it is noted that an
application of the wife under section 125 was dismissed because the civil court had
held under the matrimonial law that the wife was not entitled to maintenance.11

4 Mohd. Ahmed Khan v. Shah Bano Begum, 1985 Cr LJ 875 : AIR 1985 SC 945; Bai Tahira v. Ali
Hussain Fissali 1979 Cr LJ 151 : AIR 1979 SC 362; Mohd. Yameen v. Shamin Bano, 1984 Cr JL 1297
(All).
5 Mohd. Umar Khan v. Gulshan Begum, 1992 Cr LJ 899 (MP); U.K. Behamani v. Fatimunnisa, 1990
Cr LJ 1364 (AP); R. Begum v. Mh. Motikillah, 1989 Cr LJ NOC 155 (Ori); Begum Bibi v. A.R. Khan,
1995 Cr. JL 604 (Ori.)
6 Daulat, (1947) Nag 979; Chand Begum v. Hyderbaig., 1972 Cr. JL 1270.
7Ranchhoddas Narottamdas, (1948) 50 Bom LR 281 : (1948) Bom 380, dissenting from Chantan v.
Mathu, (1915) 30 Mad. 957.
8 Nanak Chand v. Chandra Kishore, AIR 1970 SC 446 : 1970 Cr. JL 522.
9 Nandlal Misra v. K.L. Misra, (1960) 3 SCR 431 : AIR 1960 SC 882 : 1960 Cr LJ 1246.
10 Taralakshmi, (1938) 40 Bom LR 1103 : AIR 1938 Bom 499.
11 Murlidhar v. Pratibha, 1986 Cr LJ 1216 (Bom).
 21

Right to seek maintenance under s. 125 Cr. P.C. is an independent right and
the pendency of the proceeding under the Hindu Marriage Act in the Family Court is
no bar for its maintainability outside the jurisdiction of Family Court.12
This section does not cease to operate when the relationship of marriage or
paternity is denied. The magistrate can grant maintenance to the wife if the husband
challenges the validity of the marriage. The husband may go to the Civil Court for
establishing invalidity of the marriage, as the Magistrate is not competent to decide on
such issue.13
An order for maintenance passed under this section in favour of a wife will not
cease to be operative merely because there was subsequent resumption of cohabitation
between husband and wife14 though it would remain under suspension during that
period. It would revive when the wife again lives separately from her husband unless
and until it is cancelled by the competent authority in a proper proceeding under sub-s.
(5) of this section.15
2.3 Maintenance of Wife and Children under section 125 CrPC
Section 125 of CrPC provides for maintenance of wives, children and parents.
It states as under:
(1) If any person having sufficient means neglects or refuses to maintain-
(a) His wife, unable to maintain herself, or
(b) His legitimate or illegitimate minor child, whether married or not,
unable to maintain itself, or
(c) His legitimate or illegitimate child (not being a married daughter) who
has attained majority, where such child is, by reason of any physical or
mental abnormality or injury unable to maintain itself, or
(d) His father or mother, unable to maintain himself or herself,
A Magistrate of the first class may, upon proof of such neglect or refusal,
order such person to make a monthly allowance for the maintenance of his wife or
such child, father or mother, at such monthly rate16 [***] as such magistrate thinks fit,
and to pay the same to such person as the Magistrate may from time to time direct::

12 Smt. P. Jayalakshmi v. V. Revichandran, 1992 Cr. LJ 1315 (AP).

13 Wilaman Sahu v. Kanchan Bahera, 1993 Cr. LJ 742 (Ori.)
14 Bhupinder Singh v. Daljit Kaur, AIR 1979 SC 442.
15 Kasinath Panda v. Padmabati Debi, (1956) Cut 509; enu Tatyaba v. Taibai, (1972) 75 Bom LR 283.
16 Words “ not exceeding five hundred rupees in the whole "omitted by Amendment Act, 2001 (50 of
2001), S.2 (w.e.f. 24-9-2001)
 22

Provided that the Magistrate may order the father of a minor female child
referred to in clause (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.
Provided17 further that the Magistrate may, during the pendency of the
Proceeding regarding monthly allowance for the maintenance under this sub-section,
order such person to make a monthly allowance for the interim maintenance of his
wife or such child, father or mother, and the expenses of such proceeding which the
Magistrate considers reasonable, and to pay the same to such person as the Magistrate
may from time to time direct:
Provided also that an application for the monthly allowance for the interim
maintenance and expenses for proceeding under the second proviso shall, as far as
possible, be disposed of within sixty days from the date of the service of notice of the
application to such person]
Explanation. For the purposes of this Chapter,
(a) Minor means a person who, under the provisions of the Indian
Majority Act, 1975 (9 of 1875) is deemed not to have attained his
majority;
(b) "Wife" includes a woman who has been divorced by, or has obtained a
divorce from, her husband and has not remarried.
(2) Any Such allowance for the maintenance or interim maintenance and expenses
for proceeding shall be payable from the date of the order, or, if so ordered, from the
date of the application for maintenance or interim maintenance and expenses of
1 ft
proceeding, as the case may be.
(3) If any Person so ordered fails without sufficient cause to comply with the
order, any such Magistrate may, for every breach of the order, issue a warrant for
levying the amount due in the manner provided for levying fines, and may sentence
such person, for the whole, or any part of each month's 19 allowance for the
maintenance or the interim maintenance and expenses of proceeding, as the case be,
remaining unpaid after the execution of the warrant, to imprisonment for a term which
may extend to one month or until payment if sooner made:

17 Inserted by Amendment Act 2001 (50 of2001 ), S.2 (w.e.f. 24-9-2001)

18 Subsituted by Amendment Act,2001 (50 of2001), S.2 (w.e.f. 24-9-2001)
19 Subsituted by Amendment Act,2001 (50 of2001), S.2 (w.e.f. 24-9-2001)
 23

Provided that no warrant shall be issued for the recovery of any amount due
under this section unless application be made to the court to levy such amount within
a period of one year from the dare on which it became due:
Provided further that if such person offers to maintain his wife on condition of
her living with him, and she refuses to live with him, such Magistrate may consider
any grounds of refusal stated by her, and may make an order under this section
notwithstanding such offer, if he is satisfied that there is just ground for so doing.
Explanation. If a husband has contracted marriage with another woman or
keeps a mistress, it shall be considered to be just ground for his wife's refusal to live
with him.
(4) No wife shall be entitled to receive an allowance from her husband under this
section she is living in adultery, or if, without any sufficient reason, she refuses to live
with her, husband, or if they are living separately by mutual consent.
(5) On proof that any wife in whose favour an order has been made under this
section is living in adultery, or that without sufficient reason she refuses to, live with
her, husband, or that they are living separately by mutual consent, the Magistrate shall
cancel the order.
2.3.1. Legislative Changes-Code of Criminal Procedure (Amendment) Act, 2001
[w.ef. 24-9-2001]-Interim maintenance allowance.-Statement of Objects appended
to Bill stated thus: It has been observed that an applicant, after filing application in a
Court under Section 125 of the Code of Criminal Procedure, 1973, has to wait for
several years for getting relief from the Court. It is, therefore, felt that express
provisions should be made in the said Code for interim maintenance allowance to the
aggrieved person under said Section 125 of the Code. Accordingly, it is proposed that
during the pendency of the proceedings, the Magistrate may order payment of interim
maintenance allowance and such expenses of the proceedings as the Magistrate
considers reasonable, to the aggrieved person. It is also proposed that this order be
made ordinarily within sixty days from the date of the service of the notice. (Para,
Statement of Objects and Reasons to the Bill) (w.e.f. 24-9-2001).
Ceiling of maintenance allowance abolished.-Statement of Objects appended
to Bill stated thus: The ceiling of rupees five hundred per month for maintenance
allowance was prescribed in the year 1955 in Section 488 of the Code of Criminal
Procedure, 1908. A ceiling of rupees five hundred was prescribed in Section 125 of
 24

the Code of Criminal Procedure, 1973 on the lines of Section 488 of the Code of
Criminal Procedure, 1908 which has since been repealed. In view of the cost of living
index centrally rising, retention of a maximum ceiling is not justified. If a ceiling is
prescribed and retained, it would require periodic revision taking into account the
inflation and rise in the cost of living as well as amendment of provisions of the Act
from time to time. This would necessarily be time consuming. Accordingly, it is also
proposed to amend Section 125 and make consequential changes in Section 127 of the
Code of Criminal Procedure to remove the ceiling of maintenance allowance. (Para,
Statement of Objects and Reasons to the Bill) (w.e.f. 24-9-2001).
Under the old CrPC 1898 by the Criminal Law Amendment Act 26 of 1955
the limit of maintenance was enhanced from the then existing Rs.l 001- to Rs.5001-
per month.
By the Code of Criminal Procedure (Amendment) Act No. 50 of2001 the
upper limit of maintenance of Rs. 500/- per month in Chapter IX of the Code has been
abolished. The new amendment also formally introduces the right to, and enforcement
of, interim maintenance that was earlier only by virtue of the Court made law. The
expenses of proceedings can also be claimed by the applicant under the amended
provisions of Chapter IX of the Code. There is further provision that an application
for interim maintenance and expenses of proceeding shall be disposed of, preferably,
within sixty days from the service of notice of such application to the respondent.
2.3.2. Applicability to foreigners.-A wife can maintain an application in India as
the provisions of this section do not exclude a foreigner from its purview and are
applicable to all the persons irrespective of citizenship and personal law of the
husband.20
2.3.3. Overriding effect.-Additional rights and benefits conferred under this section
prevail over the one conferred under personal law of the parties. The section applies
to all persons irrespective of personal law of the parties.22
2.3.4. Personal law unaffected.- There is no inconsistency between this section and
the Hindu Adoptions and Maintenance Act, 1956. The scope of the two laws is
different. This section provides a summary remedy and is applicable to all persons. It
has no relationship to the personal law of the parties. It has been recognised that the

20 Sarishta Devi v. Kesho Dass Sharma ,1991 (2) Crimes 865,867 (P&H)
21 Umar Hayat Khan v. Mahaboobunnisa, 1976 Cr LJ 395 (Kant)
22 Mohd. Ramzan Dar v. Hameda, 1977 Cr LJ 1682 (J&K)
 25

Court must administer the personal law for Muslims on the basis of the ancient textual
authorities whose validity as of law can hardly be questioned.23 An order of
maintenance cannot be struck down on the ground of its inconsistency with personal
law of the parties.24 This provision is subject to the Mohammadan Law on divorce.25
This provision is not opposed to personal law of Mohammedans26. Personal law of the
party cannot be altogether excluded from consideration27. This section overrides
personal law of Muslims and hence a divorced Muslim woman is a "wife" within the
meaning of this provision.
2.3.5. Object and Scope of the section.- The proceedings under this section are not
punitive. The object is not to punish a person for neglect to maintain those whom he is
bound to maintain. The section provides only a speedy remedy by a summary
procedure to enforce liability in order to avoid vagrancy.29 The provisions of Chapter
IX Cr.P.C. should be liberally construed as the primary object is to give social justice
to women and children and to prevent destitution distribution and vagrancy by
compelling those who can support those who are unable to support themselves. These
provisions provide a speedy remedy to those who are in distress. They are intended to
achieve this social purpose.30 This section gives effect to the natural and fundamental
duty of a man to maintain his wife, children and parents so long as they are unable to
maintain themselves. Its provisions apply and are enforceable whatever may be the
personal law by which the persons concerned are governed.

23 K.Veerankutty v.P. Ununa, AIR 1956 Mad 514 : (1956) ! MLJ 195; Ibrahim Fathima v. Mohammed
Saleem, AIR 1980 Mad 82; savitaben Somabhai Bhatiya v. Gujarat, 2005 (1) Crimes 1 (SC) : (2005) 3
SCC 636
24 In Re, Hussain Saheb, 1985 Cr LJ 1505 (HP)
25 Shaikh Jalil v. Bibi Sarfunnisa, 1977 Cr LJ 43 (Pat)
26 Mohd. Yameen v. Shamin Bano, 1984 Cr LJ 1297 (All)
27 Yamunabai Anantrao Shivram Adhav , AIR 1988 SC 644 : (1988) 1 SCC 530 : 1988 Cr LJ 793;
Kirti Kant D. Vadodaria v. State of Gujarat, 1996 SCC (Cri) 762 :(1996) 4 SCC 479.
28 Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945 : (1985) 2 SCC 556 :1985 Cr LJ 875.
29Madhavi v. Thupram , 1987 (3) Crimes 183, 185 (Ker); Brij Mohan Khurana v. Raj Rani, 1987 (3)
Crimes 42 (All); Ashish v. D.C. Tewari; AIR 1970 Del 98: 1970 Cr LJ 670; Malati Sahu V.
Vhagyadhar Sahu, 1991 (1) Crimes 677 (Ori); K. Vimala v.K Veeraswamy , (1991) 2 SCC 375 :1991
(1) Crimes 828 (SC)
30 Mani v. Jaykumari, 1988 cr LJ 3708 (3715) (mad
31 Nanak Chand v. Chandra Kishore , AIR 1970 SC 446 :( 1969) 3 SCC 802 : 1970 Cr LJ 522 ;
Savitaben Somabhai Bhatiya v state of Gujarat 2005 ( 1) crimes 1 (sc): (2005) 3 see 636 ; Maung Tin
v. Ma Hmin, ( 1933) 11 Ran 226
 26

After marriage it is the duty of the husband to provide shelter and maintenance
to the wife. If he neglects, the wife is legally entitled to have it from the Court by
petition under this section.
The object of this section is to avoid vagrancy by providing that a Magistrate
may up to a limited extent to see that a wife and children are maintained by a husband
or father able to maintain them.33
It is not intended to provide for a full and final determination of the status and
personal rights of the parties. The proceedings are simple in nature providing a simple
and speedy remedy where the wife proves performance of certain marriage.
This is a secular provision as it does not make any distinction between persons
belonging to different religions or castes.
Where the wife proves performance of certain marriage ceremonies, it is
immaterial whether the same satisfies all the requirements of a valid marriage. It is for
the husband to have gone to a competent Civil Court and get his marriage annulled. In
the absence of a declaration by a competent Civil Court about the legality or
otherwise of the marriage the Court has to presume that the said marriage was legal.34
The ambit of section 125 CrPC is very wide perhaps because it is a secular
provision and the legislature has enacted the provision with the sole object to
eradicate vagrancy and misery and is in complete concurrence with Article 21 of the
Constitution of India, which includes the right of every person to live a life of dignity.
The rights of a destitute wife or a minor claiming maintenance in this chapter
and the remedies provided are essentially civil right.
Even if a person changes his religion and converts to Islam, he is not relieved
of his obligation to maintain his wife and children. The right of a wife and of children
to be maintained by the husband and by the actual father is a statutory right, and the
duty is created by express enactment independent of the personal law. Hence, a mutta
(temporary) wife can claim maintenance from her husband. Illegitimate children bom
of an adulterous intercourse by a married woman can recover maintenance from the
putative father. The wife is not bound to accept the offer by the husband to provide
her with a separate residence though if she leaves her husband's roof without
justifying the cause she is entitled to no relief.

32 Ranjana Shivaji Rakhpasars v. Shivaji Bapu Rakhpasare, 2004 CrLJ 145 (150) Bom
33 Ebrahim Mahomed v. Khurshedbai, (1941) 43 Bom LR 515
34 Malan v. Balasaheb Bhimrao Gawade, 1989 CrLJ 675 (Bom)
 27

In a significant ruling given by a division bench of Supreme Court comprising

Justice K.T. Thomas and Justice M.B. Shah, while dismissing appeals by a husband
against the grant of maintenance to his wife and daughter and imposing cost of Rs
5,000 on the husband held that the provisions under Section 125 of the Criminal
Procedure Code (Cr.P.C.), meant for the grant of maintenance, are not to be utilised
for defeating the rights conferred by the legislature on destitute women, children or
parents, who are victims of social environment.
In this case, a Judicial magistrate at Nayagarh in Orissa, allowed the
application filed by Bidyut Prava Dixit (the respondent-wife) under section 125
Cr.P.C and granted a monthly maintenance of Rs 400 to her and Rs 200 to her
daughter with effect from March 15, 1989. The order of the magistrate was
challenged by the husband, Dwarika Prasad Satpathy, in a criminal revision before a
sessions judge at Puri. The sessions judge by his order dated April 19, 1994 partly
allowed the revision application of the husband and set aside the maintenance granted
to the wife. However, the judge maintained the grant of Rs 200 per month to the
minor daughter till she attained majority subject to future enhancement. The appellant
then approached the Orissa High Court against the judgment of the session’s judge.
The wife also filed a revision. The High Court dismissed the revision filed by the
husband and allowed that of the wife. The Court held that the parties were residents of
Kantilo village and at the relevant time the appellant was a bachelor and working as a
junior employment officer at Nayagarh. The appellant was a friend of the elder
brother of the respondent and frequently visited their house. The appellant fell in love
with the respondent. It also came on record that he was proposing a premarital sexual
relationship with the respondent, which was persistently refused by her. The appellant
then took a vow in a temple to marry her and thereby won her faith. The respondent
became pregnant and insisted on immediate marriage, which the appellant refused on
some pretext or the other. The respondent took various actions including writing to
various authorities including the then Chief Minister. Ultimately, when she went on a
hunger-strike in front of the office of the appellant, their marriage was solemnised
with the intervention of the sub-divisional officer and other persons in the temple.
Even after marriage, the appellant forced his wife to stay with her parents on the
ground that his father might not accept her as a bride. At that stage she was in an
advanced stage of pregnancy. Within three-four days there after she gave birth to a
 28

girl, who had been made the respondent no. 2 in the case. The parties continued to
live separately as before. In proceedings under section 125 Cr. P.C., the appellant
denied pre-marital sexual relations with the respondent. He also asserted that he was
forced to undergo some sort of marriage with the respondent. The trial magistrate
found the marriage legal and granted the relief. But the Sessions judge held the
marriage as illegal and did not give the relief to the wife. He, however, accepted the
plea of the wife that the child was bom because of pre-marital relations and confirmed
the grant of maintenance to the child. The Supreme Court in its judgment held the
marriage as legal. The court also held that the child was bom out of the wedlock,
when the appellant, who had disowned the child, refused to undergo a DNA test. The
Apex Court held that "In our view, the validity of the marriage for the purpose of
summary proceedings under section 125 Cr.P.C. is to be determined on the basis of
the evidence brought on record by the parties. The standard of proof of marriage in
such proceedings is not as strict as is required in a trial of offence of bigamy under
section 494 of the Indian penal code. It was held that once it was admitted that the
marriage procedure was followed then it was not necessary to further probe into
whether the procedure was complete as per the Hindu rites in the proceedings under
section 125 Cr.P.C.
2.3.6. Procedure and Proceedings.- The procedure laid down in this Chapter is
enacted as a measure of social justice has, therefore, to be essentially different from
the procedure laid down in the subsequent Chapters of the Code for a punitive trial.
The jurisdiction of a Magistrate is not strictly a Criminal Jurisdiction.35
A case under S. 125, CrPC is not barred under Family Courts Act. The
proceedings for maintenance are in the nature of civil proceedings though the criminal
process is applied for the purpose of summary and speedy disposal of such matter in
“XI
the interest of society.
An order made under S. 125 is tentative and is subject to the final
determination of rights in civil Court.38 Section 112 of the Evidence Act have no
application to a proceedings under Chapter IX of the Code of Criminal Procedure,

35 Parthasarathy v. Banumathy , 1988 (3) crimes 642,645 (Mad

36 Rajesh Kochar v. Reeta Kumari, 2002 cr LJ 3357 (3358) : 2002 (2) Pat LJR 277 : 2002 (4) Rec cri R
395 (Pat)
37 SK Alauddin @ Alai Khan v. Khadiza Bibi, 1991 cr LJ 2035 (cal
38 Inderjit Kaur v. Union of India , 1990 SCC (Cri) 132: (1990) 1 SCC 344 (345): 1990 Cr LR (SC)
571)
 29

which is summary and provisional in nature and does not decide finally the respective
rights of the parties.39 A wife or a child has two remedies available for securing
maintenance. The first is a suit in a Civil Court, in which a decree may be obtained for
an amount commensurate with the status or means of the party liable. Even arrears of
past maintenance can be recovered. The maintenance can be made a charge on the
property. The decree can be enforced against his property in case of his death. The
second remedy is a proceeding under this section. It is a cumulative remedy.40 This
remedy is open to a wife or child either legitimate or illegitimate. The mere existence
of a decree of a Civil Court awarding maintenance to a wife does not oust the
jurisdiction of a Magistrate to make an order under this section on the application of
the wife. The Magistrate, however, in such a case, should make it clear in his order
that anything paid under the decree of the Civil Court would be taken into account
against anything which he may order to be paid.41
In proceedings under S. 125 CrPC, the Magistrate cannot decide the validity of
marriage between the parties.42. The findings of the Civil Court are binding on the
Magistrate in some respects. Where an application of a woman under S. 9 of the
Hindu Marriage Act, 1956, for restitution of conjugal rights had been dismissed on
the ground that it was she who had deserted her husband, that finding was binding on
a ,Criminal Court which dealt with her application under S. 125 for maintenance on
the ground of desertion by husband.43 Civil Courts' decree that the petitioner is not the
legally wedded wife of the respondent unless it is a nullity or suffers from suppression
of facts binds the petitioner and the petitioner is not entitled to maintenance.44.
It is settled by various judicial pronouncements that interim maintenance
pending the final disposal of an application under section 125 can be awarded in case
the court is satisfied that there are sufficient reasons to do so. Interim maintenance
may be granted even on filing of affidavits.

39 K.M.S Mani v Tamizharasi, 1988 (2) Crimes 806 (Mad)

40 Lingappa Goundan v. Esudasan, ( 1903) 27 Mad 13,15
41 Taralakshmi (1938) 40 Bom LR 1103
42 Seerangan v Selvi (2003) 2 Mah LW (cri) 540 : (2003) 3 Rec Cri R 486 : 2003 Cr LJ 2092 (2094)
Mad

43 Teja Singh vs Chhoto 1981 CrLJ1467 (Punj)

44 Dhani Nayak vs Sankara Nayak ( 2003) 2 DMC658.
 30

2.37. "Any person".-The words "any person" include a Hindu not divided from his
father.45 This section does not contemplate proceedings against a whole family merely
because the husband against whom the proceedings are taken is a member of a joint
Hindu family. Though the Magistrate may consider what is the property of the family,
in considering what sum he should award to the wife for maintenance, the order
should be passed against the husband himself and not against the joint family"46
An order made under this section can be enforced against a person even if he
resides outside the jurisdiction of the Court.'"47 Application by wife and child under
this section cannot be defeated because the opposite party is domiciled in the
USA.9548
The words "any person" include only father or son or husband but does not
include a daughter or mother or wife."49
"Any person" in S. 125 Cr.P.C., includes mother also.50
2.3.8. "Sufficient means".-An order under this section can be passed only if a
person 'having sufficient means' neglects to maintain his wife or child. But the
expression 'means' occurring in this section does not signify only visible means such
as real property or definite employment. If a man is healthy and able-bodied he must
be held to possess the means to support his wife, children and parents and he cannot
be relieved of his obligation on the ground that he is a mere boy and is unemployed.
The words 'sufficient means' should not be confined to the actual pecuniary resources
but should have reference to the earning capacity."51 "Means" of the husband does not
mean the tangible property or sources of income of the husband but also his capacity,
potentiality and status.52 The maintenance has to be determined in the light of the
standard of living of the person concerned, the earnings of the husband, his other

45 Ramasami, (1889) 13 Mad 17

46 Hemibai v. Kunbibai, ( 1941) Kar 58
47 Gnanambal , ( 1928) 52 Mad 77
48 Dipak Banerjee v. Sudipta Banerjee, 1988 cr LJ 1627 (cal)
49 Rajkumari v. Yashodha Devi, 1978 CrLJ 600 (Punj).
50 ( SK. Chandrika v. Smt. Byamma, 1999 (4) Crimes 155 (Kant).
51 B. Veragam v. Manorajan (1963) cut 416 ; Kandaswami Moopan v. Angammal, AIR 1960 Mad 348
: 1960 CrLJ 1098 ;Chander Prakash v. Shila Rani, AIR 1968 Delhi 174.
52 Chandrapal v. Harpyan , 1991 Cr LJ 2S47 : 1991(2) Crimes 808 (All); see also Prabhulal v.
Parwatibai , 1952 CrLJ 868 (MP); Chameli v. Gajraj Bahadur , AIR 1954 All 35: 1954 CrLJ 191;
Ashish v. D.C.Tewari, AIR 1970 Delhi 98:1970 CrLJ 670; Mohd. Ayyub v. Zaibulnissa , 1974 CrLJ
1237 (All); Ahmunissa v. State of U.P , 1987 All LJ 933: 1987 All Cri C 304 (All).
 31

financial commitments etc.53 Though insolvency of the husband is not conclusive to

such determination.
But at the same time his capacity to work and earn is material. The husband
cannot refuse to maintain his wife on the ground that he has no sufficient means.54
2.3.9. Able bodied person:
However, it is submitted that the spirit of the law enshrined does not expect a
husband to starve himself in order to maintain his wife. It cannot be said that merely
because a person is able bodied and does not suffer from any physical or mental
disability, he is always able to earn. Ability to earn requires something more than a fit
state of mind or body. It requires opportunity to earn, education or experience and
many a time finance, push and pull. If these are not available to an able-bodied person,
then howsoever capable physically and mentally he may be, he should be considered
as a person who is not able to earn or maintain himself. However there is a divergent
opinion on this point. In Ali Hossain vs. Baby Farida Khatoon55 it has been held that
when the husband is able bodied person, it has to be inferred that he has the means to
pay the maintenance. In several other cases it has been held that even if the husband
may be insolvent, professional beggar, minor or a monk but he must support his wife
so long he is able bodied and can eke out his livelihood.
Capability of the husband to pay must be proved to fix the quantum of
maintenance.
The maintenance allowable to the wife must have relevance to the means of
the husband. The Magistrate must discuss the evidence and determine the means of
the husband for fixing the amount of maintenance; means not only mean the tangible
property or sources of income of the husband but also means his capacity, potential
and status.
2.3.10. "Neglects or refuses to maintain".-A neglect or refusal to maintain may be
by words or by conduct. It may be express or implied.56 Neglect or refusal may mean
something more than mere failure or omission. But where there is a duty to maintain,
such as, in the case of a child who has no will or volition of its own, mere failure or

53 Raibari Behera, 1983 CrLJ 125 (Ori).

54 Shivaji Raghunath Gaikwad vs Jijabai Raghunath Gaikwad. 1985 (2) BomCR 394
55 1998CrLJ2762(2765) (Cal)
56 Bhikaiji v. Maneckji, (1907) 9 Bom LR 359.
 32

omission may amount to neglect or refusal"57 Once it is proved that a husband or a

father has refused or neglected to maintain his wife or children, an offer by him to
maintain them in the future is not sufficient in itself, to debar a Magistrate from
making an order for their maintenance"58 or an offer to maintain them in a separate
house.'59 The right of a wife to maintenance is an incidence of her status. The phrase
"neglects or refuses to maintain" is to be construed liberally. No straight jacket
formula can be laid down to answer the question whether the wife has been able to
establish that her husband has neglected or refused to maintain her. It would depend
on the facts and circumstances of the case-in question.60 Where the husband turned
out the petitioner wife from his house when she was pregnant and since then she is
living with her parents, it is proof of neglect to maintain on the part of the husband
and the wife would be entitled to maintenance.61 When neglect or refusal has not
been .proved, omission by wife to ask for maintenance in divorce proceedings and
subsequently by interlocutory application would not entitle her to maintenance after
divorce.62
Where the husband has obtained a decree for divorce on the ground of
desertion, but the wife in her application for maintenance has proved that the husband
has ill-treated and deserted her, she is entitled to maintenance.63
2.3.11. 'Refuse' means a failure to maintain or a denial of obligation to maintain after
demand. Neglect, on the other hand, means a default or omission, in the absence of a
demand. Neglect or refusal may be implied from conduct of a party and there need not
be a formal refusal.64 Where the husband admitted that his wife was living separately
with her parents and he had not made any genuine effort to bring her back, the wife
was allowed maintenance allowance.65 In a situation in which it is no longer possible
for the wife to continue to live in her husband's house with dignity, prestige and self
respect which may also arise in different circumstances, like physical assault or
torture to the wife, creating a situation in the family which makes it unbearable for her

57 Chand Begam v. Hyderbaig, 1972 Cr LJ 1270 (AP)

58 Sassoon, (1925)49 Bom 562 :27 Bom LR 359
59 Bai Manek, (1928) 39 Bom LR 958 :52 Bom 763
60 Sahu v.Khagyodhar Sahu ,1991 (2) Crimes 541 (Ori
61 Asit Baran Mukherjee v. Fuleswari Mukherjee, (2003) I SLR 242): 2003 CrLJ 1344 (1346) (cal)
62 Sampathkumar v. Subashini, 1986 CrLJ 1633 (Mad).
63 Sukumar Dhibar v. Anjali Dasi, 1983 CrLJ 36 (Cal).
64 Narayan Sahu v. Sushama Sahu, 1992 CrLJ 2912 :1992 (1) Crimes 66 (Ori
65 (Badri Narain v. Laxmi Gehlot, 2002 CrLJ 1976 (1979) : 2002 ) (3) Rec Cri R 283 (Raj)
 33

to live with dignity; husband's refusal to discharge his marital obligations; lack of a
feeling of warmth towards the wife from the husband and the members of his family.
Even a long separation between the spouses, without any acceptable material to show
any genuine effort made on behalf of the husband to persuade his wife to live with
him, may be sufficient to draw an inference of neglect and refusal to maintain.66 A
husband who is paying a paltry amount of Rs. 30 per month to his wife for several
years and pronouncing divorce on the wife filing maintenance application wholly
supports the case of wife about neglect and refusal.67 Where the husband is living
with another woman, there is sufficient cause for the wife to live separately, it would
be construed as neglect, failure on the part of the husband to maintain his wife, the
wife therefore would be entitled to claim maintenance under section 125 CrPC.
2.3.12. Neglects to maintain child.-A child has no volition or will of his own. Mere
failure or omission to maintain may amount to neglect to maintain. When it is the
specific stand of the husband that he had never neglected or refused to maintain the
child and this aspect has not been considered, this matter should be re-adjudicated.68
The expression willful negligence is a question of law though it has to be
decided on given facts. Willful means designedly, deliberately of set purpose, that is
to say the mind and the overt action moving together.1,69
2.3.13. Proof of neglect or refusal.-Even a long separation between the spouses
without acceptable material to show any genuine effort made on behalf of the husband
to persuade his wife to live with him, may be sufficient to draw an inference of
neglect and refusal to maintain. Therefore, it will neither be legal nor proper to
approach a case with a fixed idea to find out whether the allegation of assault or
physical torture has been successfully established by the petitioner-wife. This may be
established by direct proof or by drawing reasonable inference from the circumstances
established by evidence.70
•j |
Neglect or refusal to maintain can be inferred from conduct. For getting an
order of maintenance one should show that the person bound to maintain neglected or

66 Malati Sahu V. Khangyadhar Sahu 1991 (1) Crimes 677,679 (Ori.)

67 (lsak Chanda Palkar v. Nyamatabi, 1980 CrLJ 1180 (Bom-DB)
68 (Narayan Sahu v. Sushama Sahu, 1992 (1) Crimes 66 (Ori)
69 (Kalika v. Jagdei, 1975 CrLJ 465 (All)
70 Malati Sahu V. Khagyodhar Sahu (1991) (2) Crimes 541 (Ori.)
71 Ashish V.D.C. Tewari AIR 1970 De. 98 ; 1970 (Col. 3670)
 34

refused to maintain.72 Apart from showing that the husband has sufficient means it
must further be shown that he neglects or refuses to maintain his wife. If a person is
willing to maintain his wife in accordance with his civil obligation, there is neither
neglect nor refusal.73 Where the husband takes the defence that the wife is not entitled
to maintenance because of decree and earlier consent decree, a case of neglect on
husband's, part is proved and the wife is entitled to maintenance74 . A husband who is
impotent cannot be deemed to have neglected or refused to maintain his wife.
Inability of a husband to satisfy the physical desire of his wife though might be a
ground to obtain divorce, does not amount to neglect.75
Offer of a Muslim husband, who has taken a second wife, to maintain the first
wife on condition that she lives with him cannot be considered to be a bona fide offer.
In such a case the husband will be considered to have neglected or refused to
maintain the first wife.76
2.3.14. Private agreement.- The existence of a private agreement between the
husband and the wife does not mean that if the husband fails to pay the maintenance
allowance, there is no refusal or atleast neglect to maintain his wife.77
In Ranjit Kaur v. Pavittar Singh , a question came up for consideration "whether a
wife who has voluntarily surrendered her right to maintenance in divorce proceedings,
would not be entitled to claim subsequently maintenance allowance under Section 125
of the Code of Criminal Procedure". The said question was answered by the Division
Bench against the husband and it was held that such an agreement in addition to its
being opposed to public policy would not debar the wife from claiming maintenance
under Section 125 Cr.P.C. if she is found to be unable to maintain herself.
2.3.15. Justified grounds of wife living separately - Through study of various
judgments it is established that wife would be justified in refusing to live with her
husband and claim for maintenance under this section in the following circumstances:
a) When husband is in the habit of ill-treating wife may be under the
influence of alcohol. Oral evidence of ill-treatment cannot be disbelieved

72 3 Sampath Kumar V. Subhashini 1987 (1) Crimes 108 Mad.

73 Mammad Kunhi V. Rukhiya, 1978 Col J 1645, 1647 (Ker.)
74 Bai Tahira (Supra)
75 (Bundoo v. Mahrul Nisa, 1978 CrLJ 1661)
76 (Chand Begam v. Hyderbaig, 1972 CrLJ 1270 (AP).
77 Ram Lotan V. Vidya Devi 1973, Col. 5318 (All)
78 (1991(3) Recent Criminal Reports 212)
 35

in the absence of complaint to police and medical examination, while there

is nothing on record to indicate that the testimony of wife is unbelievable.
The mere fact that the non-applicant was a quarrelsome and an obstinate
type' of woman, is no justification for ill-treatment to her. The ill treatment
cannot be substantiated on the basis of general allegations in the absence
of any details thereof
b) The husband neglect and refuses to maintain his wife and child .
c) The husband is keeping a mistress, the wife would be entitled to
maintenance from her husband.
d) During the lifetime of the wife, if husband takes a second wife, it amounts
to cruelty, the wife is entitled to maintenance under S. 125,
e) Cruelty by husband. Deliberate and false imputation with intention to
humiliate also amounts to cruelty.
f) Cruelty by mother in law
g) Demand of dowry
h) Injury. The definition of injury in this section is not as rendered in section
44IPC. The words physical or mental abnormality will prima facie take in
congenital defects while injury leading to inability to maintain itself can
have reference, be at any point of time after attaining of majority.
i) Impotency of husband: Impotency of husband would amount to both
. legal/mental cruelty,wife is entitled to live separately and claim
maintenance from husband
j) Desertion: .-Where the wife had gone to her mother and stayed there for
several months to attend her ailing mother, that does not amount to
desertion and if the husband marries with second wife, the first wife is
entitled to maintenance.79
2.3.16. "Unable to maintain herself .-Inability to maintain herself is the pre­
condition for grant of maintenance.80 The income of the wife's parents would not be
taken into consideration, her own individual income would be relevant.81 By the
phrase "unable to maintain herself, it is not meant that she should be absolute

79 Rewati Bai vs. Jageshwar, 1991CrLJ40 MP

80 G. Mariah V. G.Vijay Lakshmi 1979 Col. J 1226 (AP), Johnson M. Joseh V. Anita Johnson, 2002
Col J. NOC 267 2001 (2) MPLJ 675:2001 (4) Rec. Cri. R198 (MP).
81 Ramdayal Vaishya V. Anita Kumari 2004 Crl. 3 3669 (3670) MP.
 36

destitute and should be on the street, should beg and be in tattered clothes.82 The
petitioner must, positively aver in her petition, that she is unable to maintain herself in
addition to the facts that her husband has sufficient means to maintain her and that he
has neglected to maintain her."83 The statement of the wife that she has been able to
survive with great difficulty is sufficient compliance of Section 125 CrPC.84 Failure to
state in the application that she is unable to maintain herself is not fatal to the
claimant.85 The assertion of the wife that she is not doing anything is sufficient to
attract the provisions of this section. The expression "unable to maintain herself
would mean "means" available to the deserted wife. Earning capacity of a wife is not
a criterion to refuse maintenance. . The expression “ unable to maintain herself’
merely connotes that the wife has no other means or source to maintain herself. The
fact that the father of wife is in possession of land in which she has a share is not a
criterion to decline maintenance to wife.
Wife being educated is also not a ground to refuse, maintenance to her. Even if
the wife is gainfully employed that would not be a criterion to refuse maintenance to
her, if she is able to prove that despite being employed she is unable to maintain
herself.
2.3.17 Wife’s Inability
The applicant’s inability to maintain herself is the since qua non for the grant
of maintenance. A person who has means or is able to maintain herself has no right to
get maintenance from the other. Moreover, the words “unable to maintain” in S. 125
have nothing to do with the potential earning capacity of the wife. The Allahabad
High Court in Shravan Kumar v. Usha Devi86, held that the concept of able bodied
person cannot be extended to the wife because it will defeat the very object of the
legislature and it will invoke rowing and endless enquiry about such ability, capacity,
avenues and opportunity which the law on his point does not intend.
In Mohinder Singh v. Joginder Kaur87 and Aijaz Ahmad v. Shahjehan
Begum88 the applicant wives had sought maintenance from their husbands without

82 Abdul Salim V. Najima Begum 1980 Col. 3 232 (All)

83 Zubedabai V. Abdul Khader, 1978 Crl. 3 1555 Kant.
84 Shanyani Haidar Vs. Bharati Haidar 2004 Crl.J NOC 62 : (2003) 4 Col. H N 405(Cal.)
85 Raibari Behera Vs. Manganj Behera 1983 CrlJ 1250.
86 1984 CrLJ NOC 184 (Alll) 76.
87 1982 CrLJ 127 (Del).
88 1982 CrLJ 1022 (All); Garishchandra V. Sushila Bai
 37

specifically stating that they had no means of supporting themselves. In evidence,

however, it was brought out that in both the cases the wives were unable to maintain
themselves and so the magistrate granted their claims. The husband then invoked the
inherent powers of the High Court under Sec. 482, saying that the pleadings were
defective and so the orders of the lower courts should be quashed. The high Court,
however, refused to interfere and held that it was in evidence that the wives had no
means and so the applications were rightly decided.
A claim for maintenance under the Code can succeed only if the application is
able to establish her inability to maintain herself. However, a technical omission of
such a pleas in the application that the application does not have sufficient means of
her own to maintain herself. In Mohammad v. Ayisha89 the Kerala High Court held
that a mere omission to take plea of neglect or refusal to maintain the wife by the
husband cannot defeat a wife’s claim. Ability to maintain cannot be judged in the
light of capacity to make a living. A husband cannot escape his ability by pleading
that the wife is an educated person and can get a job and support herself.90
In Rewati Bai v. Jageshwar91, ordering maintenance of Rs. 350/- p.m. to the
wife, the M.P. High Court observed :
The only fact that she was compelled to work as labourer to survive was by
itself not sufficient to establish that the applicant was able to maintain herself.
Hence, the court held that the inability of the wife to maintain herself is a
condition precedent to granting maintenance to her under S.125. The High Courts of
Karnataka and Kerala have taken into consideration her potential capacity, while
determining her inability to maintain herself.
2.3.18 Husband’s In-Ability
When the issue of the means of the husband (or any other person called upon
to pay) is to be considered, the court will not look only at the visible means and
properties possessed by the husband but also his ability and capacity to earn. In
Basanta Kumar Mohanty v. Sarat Kumar Mohanty92, the High Court held that if a
man is healthy and able-bodied, he must be held to be possessed of means to support
his wife. The burden then is on him to show cogent ground for holding that he is

89 Srr, Udaivir Singh v. Vinod Kumari, 1985 CrLJ 1923 (All).

90 1985 CrLJ NOC 48 (Ker) 23.
91 See Ashok Kumar Singh v. Vith Addl. Sessions Judge, Varanasi, 1991 CrLJ 2357 (All).
92 1991 Cr.LJ 40 (MP); Binadelal v. Krishna Kumar, 1988 CrLJ NOC 19 (All).
 38

unable to earn for reasons beyond his control. Here the husband led no such evidence,
hence, a decree for Rs. 75/- p.m. was made in favour of the wife.
The duty to maintain a wife flows from the status of matrimony. An able
bodied man is generally presumed to have the capacity to earn and maintain his wife93.
However, it was held to the contrary by the Calcutta High Court in Dasarathi Ghosh v.
Anuradha Ghosh94. The court held that from mere fact that the husband had 3 bighas
of agricultural land or that he wore a wrist watch, a gold ring and clothes worth about
Rs.150, it cannot be said that he had sufficient means. Although the burden of proof to
establish a case under this section is on the claimant, it does not have to be proved
beyond reasonable doubt since proceeding under S. 125 is not a prosecution of a
criminal charge nor is the respondent an accused. In Krishna Bahadur Pradhan
v.Tikamaya Newar95, the High Court held that presumption ought to be that a prudent
husband and father had means to maintain the wife and children.
In Chandra Bhan v Sudha Rani96, the Court held that mere filing of the suit
for declaring the petitioner to be an insolvent is not a sufficient ground available to
petitioner for not discharging his obligation to maintain his wife and daughter. He is
under obligation to pay the maintenance allowance as awarded by the Courts below. If
a person is declared insolvent, even then he is under obligation to maintain his wife
and daughter, if he is physically fit to do the labour.
The husband cannot get away by pleading that her wife had once taken up a
job (which was at a very meagre salary) and then resigned and she being highly
educated was capable of maintaining herself97. An applicant for maintenance under S.
125 has to prove that there was neglect or failure to maintain on the part of respondent.
Unless this is established, no claim for maintenance will lie In J. Sampath Kumar v.
Subashini98, the wife had not asked for any maintenance pendete lite during the course
of matrimonial proceedings, thus, there was no neglect or refusal to maintain by the
husband. An able-bodied person is presumed to have capacity to work and earn. In an
important judgement99 the M.P. High Court made a reference to various judgements

93 See, Abdul Mannaf v. Salima, 1979 CrLJ 172 (Kant).

94 See, Saraswati v. Madhavan, AIR 1961 Ker 297.
95 Sardar Harvinder Singh v. Amrit Kaur 1983 CrLJ 1390 (Pat.)
96 2005 CrLJ 1978 (1979)(A11)
97 See, Akula Rangapa v. Narayana Swamy, AIR 1988 (AP) 314.
98 1988 CrLJ 64 (Cal.)
99 1987 CrLJ 1278 (Gau.)
 39

of different High Courts100 and held that a person cannot avoid his liability u/s 125(1)
CrPC, merely because he had no tangible real property or income, but if otherwise
able bodied and healthy and has capacity to earn. The presumption should be that
such an able-bodied healthy person is possessed of sufficient means and it is for him
to show that by accident, disease or the condition of labour market or otherwise, he is
not capable of earning anything.101
Accordingly, the order of imprisonment made by the magistrate due to non­
payment of the maintenance allowance was upheld and the husband’s petition was
dismissed.
2.3.19. "Wife".-Wife means only a legitimate wife,102 only legally married wife and,
therefore, a marriage proved illegal, cannot give a wife any right to get
maintenance103. The section applies only to an abandoned Wife and not to an
abandoned mistress.104
The Explanation to sub-sec. (1) makes it clear that a woman who has been
divorced by, or has obtained divorce from, her husband is still to be considered as
wife so long as she remains unmarried. She must be unable to maintain herself. If she
can maintain herself with her own income, whether such income is fabulous or
moderate, then the Magistrate may not grant her anything as the power to grant
maintenance is discretionary.105
In Des Raj v. Sita Devi106, the court observed that though under the law, a
divorced wife can claim maintenance from her son, but she has a prior right to claim
the maintenance from her husband /ex- husband under Section 125 Cr.P.C.
In this case husband and wife were divorced. Wife got lump sum amount of
Rs. 15,000/- at time of divorce . The Court held that this does not take away the
statutory right of wife to claim maintenance under Section 125 Cr.P.C.
The Court observed that undisputedly, the respondent-wife was is an old
illiterate and rustic woman. She was suffering from old age ailment. As per the
findings recorded by both the Courts below, she had no source of income and was

100 See, Madhusudan Mishra V. State of U.P. (1988) CrLJ 1247 (All).
101 1986 CrLJ 1633 (Mad).
102 (Savithramma S. v. Ramanarasimhaiah, (1963) 1 Cr.LJ 131) Savitaben Somabhat Bhartiya v. State
of Gujarat, 2005 CrLJ 2141 (2143)
103 (Ishwar Singh v. Smt. Hukam Kaur, AIR 1965 All 464)
104 Madhavan v. Munir, (1955) Mad 457.
105 Ramankutty V. Kalyankutty 1971 CrLJ. 318, Kajieamma Vs. Moopl Erodi 1973 CrLJ 1878 Ker.
106 (P&H) 2007 (3) R.C.R.(Criminal) 448 :2007 (2) PLR 31
 40

unable to maintain herself. Though under the law, she can claim the maintenance
from her son, but she has a prior right to claim the maintenance from her husband /ex-
husband under Section 125 Cr.P.C.
The Court observed that grant of maintenance under Section 125 Cr.P.C. is a
measure of social justice and specially enacted to protect women and children who are
not able to maintain themselves. This statutory right of wife to be maintained by her
husband /ex- husband when she is not capable to maintain herself, cannot be taken
away by pressing into service any agreement between them which nullifies the said
right.
Therefore despite the dissolution of the marriage between the parties having
taken place 30 years ago and the permanent alimony paid to the respondent-wife, the
Court held that it cannot be said that the wife cannot claim maintenance under Section
125 Cr.P.C wherein it was recorded that husband had sufficient source of income.The
Court observed that keeping in view the prices of the essential commodities in these
days and the cost of medicines, the amount of maintenance of Rs. 2000/- per month
awarded to the respondent cannot be said to be excessive or arbitrary.
Even if a woman married without knowing about the previous marriage of
the husband, the woman does not acquire legal status of wife and is not entitled to
107
claim maintenance.
"Wife" in S. 125 means a legally wedded wife, does not include a wife whose
marriage is void, being in the life time of the first wife of the husband. Such a wife is
10ft
not entitled to maintenance.
"Wife" includes a woman who obtains divorce by mutual consent.
A woman cannot claim maintenance unless there is a valid marriage between
the parties.109 The woman not having the legal status of a wife is thus brought within
the inclusive definition of the term "wife" consistent with the objective.110 The
marriage must have been solomnised under the recognized customs/rites. Mere
executing a registered document that the two executants would be living as husband
r

107 Atmaram Tukaram Suradkar v. Trivenibai A Suradkar, 2005 CtLJ 2057 (2061) (Bom) .
108 Madhab Prodhan V. Ketaki Pradhan 1995 CrLJ 1785 (1787) Ori. Savitaben Somabhai Bhatiya Vs.
State of Gujarat 2005 (1) Crimes rivembai A. Surodkar 2005 CrLJ 2057 Bom.
109 Ram Khilawa Vs. Kanchan Bai 1984(1) Crimes 772 MP.
110 K. Vimala Vs. K. Veeraswamy (1991) 2 Sec 375 (1991) C17 Crimes 828 (SC).
and wife does not confer the status of husband and wife, and the wife is not entitled to
maintenance.111
The standard of proof that the parties to the proceedings are validly married is
not so high as in a prosecution under S. 494, 495, 497 or 498 of the Penal 'Code."112
But the burden of proof is prima facie on the applicant. Whether the petitioner wife
is the legally wedded wife of the respondent, and whether she is entitled to
maintenance or not are the questions that are to be decided in the proceedings under S.
125 Cr.P.C. after considering the evidence let in by both the parties."114
2.3.20. Second wife.-A second wife whose marriage is void on account of the
survival of the first marriage, is not a legally wedded wife and is, therefore,
not .entitled to maintenance under this Provision.115 The two decisions of the Apex
Court with regard to this provision are Yamunabai’s case and in Savitaben Sonabhai
Bhatia V/S. State of Gujarat & Ors.116
In Yamunabai’s case, after holding that the marriages covered by Section 11
are void ipso jure, the Apex Court considered the meaning to be given to the
expression “wife” used in Section 125 of Criminal Procedure Code. It held that the
expression must be given the meaning in which it is understood in law applicable to
the parties. It was then sought to be argued on behalf of the appellant before the Apex
Court that the personal law of the parties to a proceeding under Section 125 of the
Code should be completely excluded from consideration. While rejecting the
argument, the Apex Court observed :
The attempt to exclude “altogether the personal law applicable to the parties
from consideration also has to be repelled. The section has been enacted in the interest
of a wife, and one who intends to take benefit under subsection (l)(a) has to establish
the necessary condition, namely, that she is the wife of the person concerned. This
issue can be decided only by a reference to the law applicable to the parties. It is only
where an applicant establishes her status or relationship with reference to the personal
law that an application for maintenance can be maintained.”

111 Punnakkal Sreedharan v. Vellai Padmini, 1992 CrLJ 3562 (3563) (Ker).
112 Salandar Gorakh Vs. Sobha (1972) 74 om. LR 755
113 Vittra Bai Laxman 1972 75 Bom. LR 447.
114 Daulat Ram Vyas Vs. Sugunamrani Vyas 2001 CrLJ 2265 (AP)
115 Om Prakash Sharma Vs. State of Gujarat 2000 SCC Cri. 748 2000 3SCC 753.
116 reported in (2005) 3 S.C.C. page 636.
 42

With the above observations, the Apex Court rejected the appeal holding that
the marriage of a woman in accordance with the Hindu rites with a man having a
living spouse is a complete nullity in the eye of law and she is not entitled to the
benefit of Section 125 of the Code.
In it’s subsequent decision in Savitaben’s case (supra) the Apex Court
followed its decision in Yamunabai’s case in every respect. It was additionally sought
to be argued in that case that a rigid interpretation given to the word “wife” goes
against the legislative intent of protecting destitute and harassed women and also such
interpretation operates harshly against the woman who unwittingly gets into
relationship with a married man. The Apex Court dealt with the argument with
following observations :
This may be an inadequacy “ in law, which only the legislature can undo. But
as the position in law stands presently there is no escape from the conclusion that the
expression 'wife' as per Section 125 of the Code refers to only legally married wife.”
The Apex Court in Savitaben Somabhai Bhatiya Vs. State of Gujarat and
Others in117 observed that “It may be noted at this juncture that the legislature
considered it necessary to include within the scope of the provision an illegitimate
child but it has not done so with respect to woman not lawfully married. However,
desirable it may be, as contended by learned counsel for the appellant to take note of
the plight of the unfortunate woman, the legislative intent being clearly reflected in
Section 125 of the Code, there is no scope for enlarging its scope by introducing any
artificial definition to include woman not lawfully married in the expression 'wife'
2.3.21. Maintenance to Muslim Wife under section 125 CrPC : Although there is a
separate legislation as far as the maintenance for a muslim woman is concerned but a
muslim woman is at liberty to invoke the provisions of section 125 of Cr. P.C. She
can reap the benefits of the present legislation irrespective of the provisions of
Muslim Woman (Protection of Rights on Divorce) Act, 1986. This issue is discussed
at length under Chapter III (b).
2.3.22. "Child".- The word "minor" is now defined in the Explanation and provision
in case of children who have attained majority is also made in sub-sec. (1) to set at
rest the divergence of opinion under the old Code between the Madras.118 the

117 (C no: Cr Appeal no.399 of2005)

118 Anrithammal Vs. K. Marimathew AIR 1957 Mad. 77.
 43

Calcutta119" and the Kerala"120 High Courts on one hand and the Bombay High Court"

on the other as to the meaning of the word "child". In Nanak Chand v. Chandra
Kishore the Supreme Court said as to the word "child": If the concept of majority is
imported into the section (old S. 488), a major child who is an imbecile or otherwise
handicapped will fall outside the purview of this section. The emphasis is always on
inability to maintain himself? The new provisions in the present Code make
specific mention of major children (except married daughters) where they are unable
to maintain themselves. The children attaining majority but are not having
physical/mental abnormality are not entitled to maintenance under S. 125.122Even if

the wife might not for some reason be entitled to for the minor child so long as he
lives with the mother and the father did not take steps to obtain the custody of the
child.123 Even if the wife willfully abandons her husband, the minor children
accompanying her will be entitled to maintenance.124

A child whether legitimate or illegitimate is entitled to maintenance from

his/her father.
2.3.23. Children of second wife: A second wife so long as the first wife is alive and
there has been no annulment of marriage by decree of divorce or otherwise is not
entitled to maintenance, but her children are entitled to maintenance allowance from
her father.
2.3.24. Maintenance to child after majority.-Maintenance to child cannot be
granted beyond the age after attainment of majority in the absence of any physical or
mental abnormality. Any child who has attained majority is not automatically entitled
to claim maintenance even if he is unable to maintain himself as was the case under
the old Code. The inability to maintain him should arise out of physical or mental
abnormality or injury.
In Yerram Vinod vs The State Of A.P.125 AndhraPradesh High Court while

explaining the principal changes introduced by the new code in section 125 CrPC
stated that under the new Code sub-sections (1) to (5) corresponds to sub-sections (1)

119 Hemant kumar Baneijee Vs. Manoramma Debee Ibid.

120 Saraswati Vs. Madhawan AIR 1961 Ker. 297.
121 Nanak Chand Vs. Chandra Kishore AIR 1970 SC 446.
122 L. Usharani Vs. D.S. Lakshwah 1993 Cr.LJ 982 Kant.
123 Bunde Lai Vs. Kushma Devi 1988 (2) Crimes 880 - 882 (All)
124 Wafakam Vs. Sant Ahmed 1984 (2) Crimes 35 Raj.
125 Crl.P.No.7303 of2007 dt of decision 20-01-2011)
 44

to (5) of old Section 488 and certain changes have been made in sub-section (1)
clauses (a) to (d) which has been substituted for the words " his wife or his
legitimate or illegitimate child unable to maintain itself & quot;. The principal
changes introduced are:
1. In the case of wife the order can be passed only if she is unable to maintain herself
[sub-section 1(a)].
2. The benefit of the provision has been extended to a woman who has been divorced
by, or has obtained a divorce from, her husband and has not remarried [Clause (b) to
Explanation in sub-section (1)].
3. Only minor children, legitimate or illegitimate, whether married or not come under
the purview of this section with a proviso that in case of a minor married daughter
order can be passed on the father if the husband of the minor female child is not
possessed of sufficient means [Sub-section 1(b) and proviso].
4. In case of a major child, legitimate or illegitimate other than a marred daughter the
liability arises only when the child is by reason of physical or mental abnormality or
injury unable to maintain itself [sub-section 1(c)].
5. The benefit has also been extended to parents who are unable to maintain
themselves [sub-section 1(d)].
The Court observed that it is not in dispute that the proceedings in the civil court are
substantial, whereas the proceedings under Section 125 Cr.P.C. are of a summary in
nature. Once the civil court of competent jurisdiction comes to the conclusion that the
wife is not entitled to maintenance, the criminal court under Section 125 Cr.P.C.
cannot sit in appeal over the said decision. A father is liable to maintain his children,
legitimate or illegitimate. Under Section 488 of the old code maintenance covered
cost of college education till the child was old enough to earn his living. The conflict
of laws as to whether child in the section means, only a minor child or is irrespective
of age, "unable to maintain herself" has now been settled by incorporating
sub-section (l)(c) to Section 125 Cr.P.C.1973. Under the new Code only minor
children unable to maintain themselves are entitled to claim maintenance from the
father or the mother. In case a major children only those who through some mental or
corporal defect or injury are unable to maintain themselves are entitled to
maintenance under Section 125 (1) (c).
 45

Once the concept of majority is imported into Section 125(1) (c) a major child who is
an imbecile or otherwise handicapped will fall outside the purview of this section.
The Court further observed that in view of the same, in the present case unless the
respondents 3 and 4 major daughters establish that they are covered by section 125(1)
(c) they cannot claim maintenance under Section 125 Cr.P.C. but are entitled to
maintenance under Section 20(3) of Hindu Adoption and Maintenance Act on
satisfying that they are unable to maintain themselves.
2.3.25. Omission to join children in application-Omission to join children as
applicants in the application for maintenance allowance is an irregularity and that by
itself is not a ground to disentitle them from claiming maintenance.
The basis of an application for the maintenance of a child is the paternity of
the child irrespective of its legitimacy or illegitimacy. A woman may be of bad
character and yet be entitled to an order for maintenance of her illegitimate child if
she proves that the man against whom she proceeds was the father of the child.
Similarly, an unchaste wife is entitled to maintenance for her husband's child. A
divorced wife, entitled to the custody of her children, can recover for their
maintenance. A father is bound to maintain his child even though the child is living
with its mother who refuses to return to her husband under a decree for restitution of
conjugal rights. When the custody of a child is wrongfully withheld from its father,
who is its legal guardian, he cannot be called upon to pay for its maintenance. In the
aforementioned cases, however, it has been held that a child cannot be deprived of his
right to maintenance because the mother refuses to keep him in the custody of his
father. The father cannot insist that the child should be kept in his custody as a
condition precedent to his liability to maintain him."
2.3.26. 'Legitimate or illegitimate child unable to maintain itself.-The phrase
means "unable to earn a livelihood for itself," that is to say, a complete livelihood,
such as an adult person might earn, without depending on any other person. In
different communities and different circumstances the words "unable to maintain
itself may mean different things. Among the labouring classes it may even be
possible to hold that a healthy boy aged 16 is not unable to maintain itself. Unable to
maintain does not mean that the person must be destitute.127

126 Muniammal v. Venkataramanachari, (1944) Mad 382

127 Abdul Salim v. Najima Begum, 1980 CrLJ 232 (All).
 46

The maintenance allowed to a girl cannot be cancelled on her marriage

without proof that she has thereby become able to maintain herself and ceased to
depend upon the maintenance ordered.128
In Dwarika Prasad Satpathy, vs. Bidyut Prava Dixit and Anr.129 it was held
that the validity of the marriage for the purpose of summary proceedings under
Section 125 of the Code is to be determined on the basis of the evidence brought on
record by the parties. The standard of proof of marriage in such proceedings is not as
strict as is required in a trial of offence under Section 494 of Indian Penal Code, 1860
(in short the "IPC"). If the claimant in proceedings under Section 125 succeeds in
showing that she and the respondent have lived together as husband and wife, the
Court has to presume that they are legally wedded spouses, and in such a situation one
who denies the marital status can rebut the presumption. Once it is admitted that the
marriage procedure was followed then it is not necessary to further probe as to
whether the said procedure was complete as per the Hindu rites, in the proceedings
under Section 125 of the Code. It is to be noted that when the respondent does not
dispute the paternity of the child and accepts the fact that marriage ceremony was
performed though not legally perfect, it would hardly lie in his mouth to contend in
proceedings under Section 125 of the Code that there was no valid marriage as
essential rites were not performed at the time of said marriage. The provision under
Section 125 cannot be utilize for defeating the rights conferred by the legislature on
the destitute women, children or parents who are victims of social environment. The
provision is a measure of social justice and as noted above specially enacted to protect
women and children and falls within the constitutional sweep of Article 15(3)
reinforced by Article 39 of the Constitution.
2.3.27. Unmarried daughter.-An unmarried daughter whether minor or major is
entitled to maintenance.
2.3.28. Adopted son.-An adopted child is entitled to maintenance allowance in
proceedings under S. 125(3)
2.3.29. Mother's liability to pay maintenance.- The expression "any person" in S.
125 Cr.P.C. includes mother also. Hence a child is entitled to claim maintenance from
her mother also.

128 Ranchhoddasa v. Narotamdas, (1948) 50 80m LR 281

129 AIR 1999 SC 3348
 47

2.3.30. Quantum of maintenance : The earlier provision that only a sum of money
not exceeding Rs. 500/- should be ordered to be paid has now been omitted by an
amendment of the year 2001. After this amendment the maximum limit of Rs. 500/-
has been removed and now the amount of allowance for the maintenance or the
interim maintenance shall be in the discretion of the Magistrate. Of course no other
payment in other shape such as tuition fees or medical expenses can be ordered to be
paid in addition to the allowance for the maintenance or interim maintenance. The
Magistrate can also not order the husband to provide other additional facilities like
house accommodation etc. Every wife and every child and father and mother can be
awarded such amount of allowance of maintenance or interim maintenance which the
person ordered has the means to pay. The amount of maintenance allowance or the
interim maintenance can be varied if a change in the circumstances is brought to the
notice of the court.
While determining the amount of maintenance or interim maintenance the
court will take into consideration the existing situation, such as that one of the child,
was a student of some course involving heavy expenditure, at the time of passing
order.130 Where the trial court and the court of appeal have given concurrent finding
about amount of maintenance, its correctness cannot ordinarily be questioned in
revision petition in the High Court.131 However, the rate cannot be fixed on an
abstract and hypothetical thing like capacity to earn money.132
While awarding the amount of maintenance allowance or interim maintenance
the court shall fix it taking all the items of maintenance together and separate amount
may be ordered for each of the claimant.
It was held in Sudeep Chaudhary v. Radha Chaudhary,133 that the amount
awarded under section 125, Cr. P.C., for maintenance was adjustable against the
alimony amount awarded in the matrimonial proceeding under Section 24 of the
Hindu Marriage Act, 1955 and was not to be given over and above the same.
Whether maintenance be granted from the date of the Order passed by the
Family Court or from the date of application made under Section 125 of the Code
There is difference on opinion among different High Courts on the aforesaid issue.

130 Nanak Chand v. Chandra Kishore, A.I.R. 1970 S.C. 446.

131 Jagir Kaur v. Jaswant Singh, A.I.R. 1963 S.C. 1521.
132 Mithilesh Kumar v. Bindhawasani, 1990 Cr. L.J. 830 All.
133 1999 Cr. L.J. 466.
 48

2.3.31 Does the expression "imprisonment" in Section 125(3) Cr.P.C take within
its sweep rigorous imprisonment also
The decision of the Supreme Court in Kuldip Kaur v. Surinder Singh134 while
considering the question whether the default sentence, if undergone shall wipe off the
liability makes the position crystal clear with respect to the nature of imprisonment as
mentioned in section 125(3) Cr.P.C. In paragraph 6 of the said judgment it has been
clearly held that the sentence is imposed under Section 125(3) Cr.P.C only as a mode
of enforcement of the direction to pay the amount of maintenance and not as a
punishment. 'The default sentence under Section 125(3) Cr.P.C cannot hence be
reckoned as a punishment as such. Even a sentence of imprisonment in default of fine
vi
is not a pifiishment. It ,is only a penalty which a person incurs on account of non­
payment of fine. In Shantilal v. State of M.P 2008(1)KLT 503], the Supreme Court
has observed that the term of imprisonment in default of payment of fine is not a
sentence. It is a penalty which a person incurs on account of non-payment of fine. The
sentence is something which an offender must undergo unless it is set aside or
remitted in part or in whole either in appeal or in revision or in other appropriate
judicial proceedings or "otherwise". A term of imprisonment ordered in default of
payment of fine stands on a different footing. A person is required to undergo
imprisonment either because he is unable to pay the amount of fine or refuses to
pay such amount.
In Moideenkutty vs State of Kerala135, the Court observed that to come to
the conclusion that rigorous imprisonment can be imposed, reliance was placed by
the Calcutta High Court, Moddari Bin v. Sukdeo Bin136, and the Allahabad High
Court, Emperor v. Beni (FB)137 on Form XL of Schedule 5 of the former Code while
holding that rigorous imprisonment can be imposed. That form is not now available.
Form 18 in the second schedule to the present (1973) Code does not contain anything
to indicate that the option of imposition of rigorous imprisonment is available to the
court for default in payment of maintenance amount.
The Court further observed that it can assume that the framers of the present
code, with the march of civilization felt that if is not necessary to authorize the court

134 AIR 1989 SC 232

135 RPFC.No. 63 of 2008
136 AIR 1967 Calcutta 136
137 AIR 1938 Allahabad HC 386
 49

to impose a sentence of rigorous imprisonment for default in payment of the

maintenance amount. That may only be a meager indication.
The rationale underlying Section 125(3) Cr.P.C makes it clear- that the law
wants the direction to pay maintenance to be enforced and executed strictly. Under the
threat of detention in a criminal prison compliance is insisted. That going by the
purpose which such detention/imprisonment has to serve also, it is not necessary to
impose the harsh punishment of rigorous imprisonment under Section 125(3) Cr.P.C.
The threat of being sent to prison is by itself sufficient deterrenjgp^-^si^iot necessary
to cap the same with the further direction that such prisonal^p5uIduii^P|o rigorous

imprisonment with obligation to render hard labour. .........1 ★))

The Court held that it follows from the above discM§j^ns thatmfewsxpression
"imprisonment" in Section 125(3) Cr.P.C must receive a mof^^^^and humane
interpretation consistent with the constitutional ideals as to avoid the consequence of
subjecting such a defaulter to the ordeal of rendering involuntary hard labour for the
mere indiscretion of failure/refusal to make payment of the maintenance amount.
2.3.32 One view-Maintenance from the date of order: According to one view,
since Sub-section (2) of Section 125 declares that maintenance shall be payable "from
the date of the order", or, "if so ordered, from the date of application for maintenance",
normal rule is that a Magistrate should pass an order directing payment of
maintenance only from the date of the order. If he decides to deviate that course and
makes an order granting maintenance not from the date of the order but from the date
of application for maintenance, he must record reasons in support of such order138
2.3.33. Other view-Maintenance from the date of application: However, some
High Courts have taken a contrary view; they held that normally, maintenance should
be granted from the date of the application and not from the date of the order. If the
Magistrate is inclined to make an order granting maintenance from the date of the
order and not from the date of application, he should record reasons to do so.139
However, the aforesaid controversy with respect to the date from which the
maintenance is payable has come to rest by the landmark decision of the Hon’ble
Supreme Court in the case of Shail Kumari Devi and Anr. Vs. Krishan Bhagwan

138 vide Mohd. Inaytullah Khan v. Salma Bano 1983 Jab LJ 55, Lachlunani v. Ramu (1983) 1 Crimes
590 MP, Qamruddin v. Smt. Rashida Smt. Rashid, Shyamlal v. Mansha Bai 1998 CrLJ 2704 (Raj),
Samaydin v. State of U.P. and Anr.
139 Gnanaselvi and Ors. v. Illavarasan
 50

. Pathak Vs. Kishun B. Pathak140 in which the Hon’ble Supreme Court has not agreed
to view that as a normal rule, the Magistrate should grant maintenance only from the
date of the order and not from the date of the application for maintenance, and in case
magistrate intents to pass such an order, he is required to record reasons in support of
such order. The magistrate is not required to record special reasons, if he intends to
order maintenance from the date of application as there is nothing in Section 125 (2)
which requires so. However, the magistrate must record reasons as envisaged by Sub­
section (6) of Section 354 of the Code in support of the order passed by him. Finally,
the apex court held that while deciding an application under Section 125 of the
code, a Magistrate is required to record reasons for granting or refusing to grant
maintenance to wives, children or parents. Such maintenance can be awarded from the
date of the order, or, if so ordered, from the date of the application for maintenance, as
the case may be. For awarding maintenance from the date of the application, express
order is necessary. No special reasons, however, are required to be recorded by the
Court.”
Thus, from the aforesaid judgment of the Apex Court, the following point
emerges:
(i) It is incorrect to say that as a normal rule, the Magistrate should grant
maintenance only from the date of the order and not from the date of the
application for maintenance, and in case magistrate intents to pass such an
order, he is required to record reasons in support of such order.
(ii) The Magistrate" has the discretion to grant maintenance from the date of
application or date of order.
(iii) For awarding maintenance from the date of the application, express order is
necessary but no special reasons are required to be recorded by the Court.
2.4 SECTION 126 CrPC PROVIDES FOR THE PROCEDURE,
JURISDICTION , MODE OF TAKING EVIDENCE AND GRANT OF COSTS
IN RESPECTOF PROCEEDINGS INITIATED UNDER SECTION 125 CrPC.
IT RUNS AS UNDER:
(1) Proceedings under section 125 may be taken against any person in any district-
(a) Where he is, or
(b) Where he or his wife resides, or
140
AIR 2008 SC 3006
 51

(c) Where he last resided with his wife, or as the ease may be, with the
mother of the illegitimate child.
(2) All evidence to such proceedings shall be taken in the presence of the person
against whom an order for payment of maintenance is proposed to be made, or, when
his personal attendance is dispensed with in the presence of his pleader, and shall be
recorded in the manner prescribed for summons-cases:
Provided that if the Magistrate is satisfied that the person against whom an
order for payment of maintenance is proposed to be made is willfully avoiding service,
or willfully neglecting to attend the court, the Magistrate may proceed to hear and
determine the case ex-parte and any order so made may be set aside for good cause
shown on an application made within three months from the date thereof subject to
such terms including terms as to payment of costs to the opposite party as the
Magistrate may think list and proper.
(3) The Court in dealing with applications under section 125 shall have power to
make such order as to costs as may be just.
In Kumutham v. Kannappan141 The Supreme Court had held that petition
under S. 125 Cr. P.C by the wife for maintenance for herself and her daughter at the
place of residence of the wife is maintainable. The Court has jurisdiction to try the
petition, it is immaterial that the husband is not residing in its jurisdiction.
The words “in any district ” do not mean in any Court in any district where
the husband resides. It means only a Court in the district within whose jurisdiction the
husband resides.142
For modification or alteration the wife is entitled to file application where she
resides. Kailashben Arvindkumar Joshi v. Arvindbhai Ratilal Joshi, 1986 (1) Crimes
556, 561 (Guj).143

2.4.1 “Resides”
The word “resides” connotes some sort of permanent intention to stay at a
particular place and a mere casual visit to place other than the one where a person has
a fixed home, will not be sufficient. In the case of persons who have a fixed residence

141 (1998) 5 SCC 693:1988 SCC (Cri) 1377 (1378)

142 Abdul Qayyum v. Durdana Begum, 1974 Cr LJ 873 (AP)
143 Kailashben Arvindkumar Joshi v. Arvindbhai Ratilal Joshi, 1986 (1) Crimes 556,561 (Guj).
 52

a visit to another place for however long a period , so long as it is casual, will not
confer jurisdiction . Where , however , the parties have no home of any sort and are
moving about from place to place, each place where they so live would be their home
for the time being; the sole test being whether a party has animus manendi or an
intention to stay for an indefinite period , at one place , and if he has such an
intention, then alone can be said to reside there.144
Last resided - The term “resided” includes a temporary residence and is not
to be confined to permanent residence,145 However it implies something more than a
mere brief flying visit.146
2.4.2 Within three months from the date thereof [Sub - section (2), Proviso], -
There is difference of opinion as to whether the period of three months runs
from the date of the ex parte order or begins from the date the aggrieved party had or
ought to have knowledge thereof. The Punjab147 and the Mysore148 High Courts hold
the former view and the Andhra Pradesh High Court149 the latter. In a recent frill
bench judgment of the Punjab High Court, which overruled its previous decision in
Hari Singh v. Mt Dhanna.150 It has been held that a decision adversely affecting a
party does not come into force before that party acquires notice thereof and the period
of limitation should, therefore, be reckoned from the date of knowledge of the ex
parte order. Terminus a quo for reckoning the period is not the date of the order.151
It has been held that where the husband opposite party has been evading
service of notice of petition , limitation for setting aside will be seen from the date of
passing of ex parte order152 In a case where the husband willfully did not participate
in the proceedings despite service of notice on him, petition for setting aside ex parte
order of maintenance was disallowed.153

144 (Khairunnissa, (1929) 31 Bom LR 931,53 Bom 781; Ram Dei v. Jhunni Lai
145 Sher Singh v. Amir Kunwar, (1927) 49 All 479.
146 Abdur Hamid v. Bibi Ashrafunnisa, AIR 1965 Pat 344
147 Hari Singh v. Mt Dhanna, (1962) 2 Cr LJ 581
148 Hyder Khan v. Safoora Bee, AIR 1968 Mys 98
149 Sukhirthammal v. Subramaniam, 1985 Cr LJ 1294 (Mad) and Calcutta; Bina Ganguly v. ras Bihari
,1983 CrLJ 1672 (Cal)
150 63 (1962)2 CrLJ 581
151 Jogender Singh v. Balkaran Kaur, 1972 Cr LJ 93 (P& H).
152 Birbal v. Bimla Devi, 1993 Cr LJ 1124 (HP).
153 G. Gnanaiahpandiyan v. Pazhaniammal, 1997 Cr LJ 2411 (Mad).
 53

In Sumathi v . N.J Peter154 the Court held that if an ex parte order is passed
without complying with the provisions of the proviso , the bar of three months also
will not apply.
It has also been held that an application for setting aside the ex parte order
beyond three months, without showing good cause would be rejected as time
barred.155
Perusal of aforesaid authorities clearly reveal that the interpretation of the
proviso is done so as to give effect to the true object of the beneficial legislation.
2.4.3 Criminal Procedure Code, Section 125 - Limitation Act, 1963, Section 15
In Amarendra Kumar Paul v. Maya Paul,156 an order granting maintenance to
three minor children was passed by Magistrate in the year 1994.Revision against the
said order was filed by father . The order remained stayed during pendency of
revisions firstly before Sessions Court and thereafter by High Court. Revision was
dismissed by High Court in the year 2004. Thereafter, execution application was filed
in the year 2005. An objection was raised that children were not entitled to
maintenance as they had attained majority in the year 1997 before filing of execution
application. The Court held that contention was not tenable. Children will be entitled
to maintenance till the age of attaining majority and the daughter till she was married.
Another issue before the Court in this case was whether the Execution application not
barred by limitation? In this case, an order granting maintenance to children under
Section 125 Cr .P.C was passed by Magistrate in the year 1994. Limitation to execute
the order is one year. However, revisions were filed against the order by husband in
higher courts. Therefore the order remained stayed during pendency of revisions.
Revisions were dismissed in the year 2004. Consequently, Execution application was
filed in the year 2005. The Court held that Execution application was not barred by
limitation as under Section 15 of Limitation Act period of one year would be
computed excluding the period during which order of Maintenance remained stayed.
2.5 SECTION 127 CrPC PROVIDES FOR ALTERATION OF
ALLOWANCE OF MAINTENANCE BY CHANGE OF CIRCUMSTANCES
OF THE PERSON RECEIVING OR PAYING THE AMOUNT.
The section runs as under:

154 1985 (2) Crimes 670, 673 (Ker)

155 Khem Singh v . State of U.P (2003) 2 UC 1445:2003 Cr LJ NOC 295 (Uttr).
156 (SC) 2010 CriLJ 395 : 2010 (3) MLJ (Criminal) 446
 54

157 *
[(1) On proof of a change in the circumstances of any person, receiving, under
section 125 a monthly allowance for the maintenance or interim maintenance, or
ordered under the same section to pay a monthly allowance for the maintenance, or
interim maintenance, to his wife, child, father or mother, as the case may be, the
Magistrate may make such alteration, as he thinks fit, in the allowance for the
maintenance or the interim maintenance, as the case may be.]
(2) Where it appears to the Magistrate that, in consequence of any decision of a
competent Civil Court, any order made under Section 125 should be cancelled or
varied, he shall cancel the order or, as the case may be, vary the same accordingly.
(3) Where any order has been made under Section 125 in favour of a woman who
has been divorced by, or has obtained a divorce from, her husband, the Magistrate
shall, if he is satisfied that-
(a) the woman has, after the date of such divorce, remarried, cancel such
order as from the date of her remarriage;
(b) the woman has been divorced by her husband and that she has received,
whether before or after the date of the said order, the whole of the sum
which, under any customary or personal law applicable to the parties,
was payable on such divorce, cancel such order,-
(i) in the case where such sum was paid before such order, from
the date on which such order was made;
(ii) in any other case, from the date of expiry of the period, if any,
for which maintenance has been actually paid by the husband to the
woman;
(c) the woman has obtained a divorce from her husband and that she had
voluntarily surrendered her rights to [maintenance or interim
maintenance] after her divorce, cancel the order from the date
thereof.
(4) At the time of making any decree for the recovery of any maintenance or
dowry by any person, to whom159 [monthly allowance for the maintenance and
interim maintenance or any of them has been ordered] to be paid under Section 125,
the Civil Court shall take into account the sum which has been paid to, or recovered

157 Subs, by Act 50 of2001, sec. 3, for sub-section (1) (w.e.f. 24-9-2001)
158 Subs, by Act 50 of2001, sec. 3, for "maintenance" (w.e.f. 24-9-2001).
159 Subs, by Act 50 of2001, sec. 3, for" monthly allowance has been ordered" (w.e.f. 24-9-20Q1)
 55

by, such person 160 [as monthly allowance from the maintenance and interim
maintenance or any of them, as the case may be, in pursuance of] the said order.
The order can relate back to the date of filing of application. It can also be
cancelled if it is superseded by the decree of civil court
2.6 Section 128 provides for the provision for enforcement of order of
maintenance. It runs as under:
A copy of the order of161 [maintenance or interim maintenance and expenses
of proceeding, as the case may be,] shall be given without payment to the person in
whose favour it is made, or to his guardian, if any, or to his guardian, if any, or to
the person to [whom the allowance for the maintenance or the allowance for the
interim maintenance and expenses of proceeding, as the case may be,] is to be paid;
and such order may be enforced by any,; Magistrate in any place where the person
against whom it is made may be, on such Magistrate being satisfied as to the identity
of the parties and the non-payment of the 163 [allowance, or as the case may be,
expenses, due].
Sentencing to jail is the means for achieving the end of enforcing the order
by recovering the amount of arrears. It is not a mode of discharging liability. The
section does not say so. The Parliament in its wisdom has not said so. Even
commonsense does not support such a construction.
The above study explicitly reveals that both the legislature as well as
judiciary had through their respective roles contributed to achieve the objectives of
the provision and thereby remove the vagrancy, impoverishment and destitution.
It is worth appreciation that judiciary is making pace with time ;
acknowledging the constant change in social attitudes and values have
recommended for a broader definition of the term “wife” used in Section 125 of
Cr.P.C so that the benefit of this social legislation may be extended to many more.
Recently in Chanmuniya vs Yirender Kumar Singh Kushwah & anr,164
Supreme Court held that since the Protection of Women from Domestic Violence
Act 2005 gives a very wide interpretation to the term ‘domestic relationship’ as to

160 Subs, by Act 50 of2001, sec. 3, for "as monthly allowance in pursuance of' (w.e.f. 24-9-2001).
161 Subs by Act 50 of2001, sec. 4, for "maintenance" (w.e.f. 24-9-2001).
162 Subs by Act 50 of2001, sec. 4, for" whom the allowance" (w.e.f. 24-9-2001)
163 Subs by Act 50 of2001, sec. 4, for "allowance due" (w.e.f. 24-9-2001)
164 (Civil appeal no; 8866 of20109 arising out of SLP (civil) no 15071of 2009 . D/d 7.10.2010)
 56

take it outside the confines of marital relationship , and even includes ‘live in
relationship’ in the nature of marriage within the definition of ‘domestic
relationship’ under section 2(f) of the Act and monetary relief and compensation can
be awarded in cases of live in relationship under the Act of 2005, they should also
be allowed in proceedings under section 125 of Cr.P.C., as it seems the same is also
confirmed by section 26 of the Act. The Court believed that such an interpretation
would be a just application to the principles enshrined in the Preamble to our
Constitution, namely, social justice and upholding the dignity of an individual. In
view of above the Court requested the Hon’ble Chief Justice to refer the following
amongst other questions to be decided by a larger Bench.
Whether strict proof of marriage is essential for a claim of maintenance
under section 125 Cr.P.C having regard to the provisions of Domestic Violence Act,
2005?
We cannot ignore the fact that the values and principles of society are
changing rapidly and so must the law lest the objective of the aforesaid provisions
cannot be fulfilled rather it would give way to more cases of destitution and
impoverishment. But at the same time necessary caution must be taken not to
encourage severing from basic social values.