ORDER FOR MAINTAINENCE UNDER CRPC
WHO CAN GET MAINTAINENCE?
ALTERATION IN MAINTAINENCE?
EXECUTION / ENFORCEMENT OF THE
ORDER OF MAINTAINENCE
Order for maintenance of wives,
children and parents
Section 125 of [Link] deals with “Order of maintenance of wives, children and
parents”. In this Section, it is given the name of parties who are entitled to get
maintenance, essential ingredients to claim and get maintenance and order of the
first-class magistrate.
In the case of Mohd. Ahmed Khan v Shah Bano Begum, Supreme Court delivered a
judgement favouring maintenance given to an aggrieved divorced Muslim woman.
The person can claim and get maintenance
Section 125 of [Link] deals with “Order for maintenance of wives, children and
parents”. According to Section 125(1), the following persons can claim and get
maintenance:
Wife from his husband,
Legitimate or illegitimate minor child from his father,
Legitimate or illegitimate minor child (physical or mental abnormality)
from his father, and
Father or mother from his son or daughter.
Wife
In the case of Chanmuniya v Virendra Singh, Supreme Court has defined ‘Wife’ and
it includes even those cases where a man and woman have been living together as
husband and wife for a reasonably long period of time. Strict proof of marriage
should not be a precondition of maintenance under Section 125 of the [Link].
In the case of Smt. Yamunabai Anantrao Adhav v Ranantrao Shivram Adhav, the
Supreme Court held that marriage of women in accordance with Hindu rites with a
man having a living spouse is completely nullity in the eye of law and she is not
entitled to benefit under Section 125 of the [Link].
In the case of Sirajmohmedkhan Janmohamadkhan v Hafizunnisa Yasinkhan, the
Supreme Court held that maintenance can be allowed to the wife when her husband
is impotent.
A wife can claim and get maintenance from her husband in the following conditions:
She is divorced by her husband, or
Obtained divorce from her husband, and
She has not remarried, and
She is not able to maintain herself.
Note: Muslim wife can also claim maintenance under [Link] though they have a
separate Act (Muslim Women Protection of rights on Marriage Act) for them.
A wife can not claim and get maintenance from her husband in the following
conditions:
Wife living in adultery, or
Refuses to live with husband without any valid reasons, or
Living separately by mutual consent.
Legitimate or illegitimate minor child
Son
‘Minor’ means a person who, under the provisions of Section 3 of the Indian Majority
Act, 1875 is deemed not to have attained his majority i.e., above the age of 18 years.
Minor Son (Legitimate or Illegitimate) is entitled to get maintenance under Section
125 of [Link].
Daughter
If Minor Daughter (Legitimate or Illegitimate) is unmarried, then she is entitled to
get maintenance from her father and if she is married, then she is also entitled to
get maintenance from his father but the magistrate has to be satisfied that her
husband has not essential and sufficient means for the maintenance of his minor
wife. In the case of Shahbuddin v State of UP, a minor daughter attaining majority
during the pendency of the application for maintenance was held entitled to
maintenance up to the date of majority.
Legitimate or illegitimate abnormal child who has attained
majority
If any major child (Legitimate or Illegitimate) is abnormal (mentally or physically
unfit), then the father of that child has to maintain him and he can claim
maintenance on this ground of abnormality.
Father or mother
Natural father and mother can claim maintenance.
Mother includes adoptive mother, she can claim maintenance from
adoptive son.
Father can claim maintenance, it is a statutory obligation, this claim cannot
be defeated by pleading that the father failed to fulfil his parental
obligation.
A childless stepmother can claim maintenance.
In the case of Pandurang Bhaurao Dabhade v Baburao Bhaurao Dabhade, Bombay
High Court has held that the father or mother can claim maintenance under Section
125(1)(d) if he or she is unable to maintain himself or herself. But it is also important
that if parents claim maintenance to their children, children must have sufficient
means to maintain their parents and yet neglects or refuses to maintain the father
or mother.
Essential conditions for granting maintenance
There are some essential conditions which should be fulfilled for claiming and
granting maintenance:
1. Sufficient means for maintenance are available.
2. Neglect or refusal to maintain after the demand for maintenance.
3. The person claiming maintenance must be unable to maintain
himself/herself.
4. Quantum of maintenance depends on the standard of living.
Sufficient means to maintain the person
If any person has sufficient means for maintenance, then it is his duty to maintain
his wives, children and parents. If sufficient means are not available, then it will be a
perfect and valid defence for people who are legally bound for maintenance of wife,
children and parents.
Neglect or refusal to maintain
Any person neglects or refuses to maintain his wives, children and parents in
malafide intention or in any type of egoistic behaviour on the demand for
maintenance by them.
The person who claims maintenance must be unable to
maintain himself/herself
It is a very important condition for granting maintenance that a person who is
claiming maintenance must be unable to maintain himself/herself. For example- If a
wife is earning well, then she can not claim maintenance under this Section. In the
case of Abdulmunaf v Salima, it was held that the wife who is hale and healthy and is
sufficiently educated to earn for herself but refuses to earn from own and claim
maintenance from her husband will be entitled to claim maintenance but that her
refusal to earn under the circumstances would disentitle her to get complete
amount of maintenance.
Special provision for maintenance of minor married girl
If the husband of a minor daughter does not have sufficient means to maintain her,
then it is the duty of her father to give maintenance. In these circumstances,
married minor daughter is entitled to get maintenance from the father. In the case
of Alok Banerjee v Atoshi Banerjee, a person who is unable to maintain themselves.
Quantum of maintenance
Quantum of maintenance means the amount of maintenance. Quantum of
maintenance depends on the standard of living. For example- If any issues raised in
a rich family, then demand for maintenance will be more as compared to poor
family according to their standard of living in a prior life.
Jurisdiction of Magistrates to deal with
maintenance proceedings
According to Section 125(1)(d), If any person neglects or refuses to maintain his wife,
children or parents, then a Magistrate of the First Class can order such person to
make a monthly allowance for the maintenance of his wife, children or parents, at
such monthly rate as such Magistrate thinks fit, and to pay the same to such person
as the direction of magistrate.
If a minor female child is unmarried, then the magistrate can order to make such
allowance, until she attains her majority. In case a minor child is married and the
magistrate is satisfied that the husband of such minor female child is not possessed
of sufficient means, then the magistrate can order father of the minor female child
to make such an allowance for maintenance.
When a proceeding is pending regarding monthly allowance for maintenance, the
Magistrate can order such person to make a monthly allowance for the interim
maintenance of his wife, children or parents and the expenses of such proceeding
which the Magistrate considers reasonable.
An application for the monthly allowance for the interim maintenance and expenses
of proceeding should be disposed within sixty days from the date of the notice of
the application to such person.
According to Section 125(2), If a court order for such allowance for maintenance or
interim maintenance and expenses of the proceeding, then it should be payable
from the date of the order or if so ordered, then it shall be payable from the date
of application for maintenance and expenses of proceedings.
According to Section 125(3), If any person fails to comply with the order without
sufficient cause, then Magistrate can order to issue a warrant for levying the
amount with fines. If the person again fails after the execution of the warrant, then
the punishment of imprisonment for a term which may extend to one month or until
payment of sooner made is awarded.
Procedure for maintenance
Section 126 of [Link] deals with “Procedure for maintenance”. This Section says the
following:
Proceeding under Section 125 may be taken in the following district:
1. Where he is, or
2. Where he or his wife resides, or
3. Where he last resided with his wife or mother of an illegitimate child.
Evidence to be taken in the presence of a person against whom
maintenance is to be ordered.
If a person is wilfully avoiding summons, then ex-parte evidence is taken
in that case.
Alteration in Allowance
Section 127 CrPC provides for ‘Alteration in Allowance’. Alteration means change in
the monthly allowance, that is it may decrease or increase according to the change in the
conditions of the parties.
According to Section 127(1) if a magistrate ordered to give allowance for maintenance under
Section 125 according to the conditions of parties at that time, but if the present conditions
of parties have changed, then he can also order to alter the allowance.
According to Section 127(2), the Magistrate shall cancel or revoke any order given
under Section 125 by him, if it appears that it should be cancelled in consequences of any
decision of the competent Civil Court.
According to Section 127(3), where an order has been made in favour of women under
Section 125, then the magistrate can cancel the order in the following case:
o If a woman is remarried after divorce.
o If a woman has taken allowance under any personal laws after divorce.
o If a woman has voluntary leave her right to maintenance.
According to Section 127(4), the Civil Court shall take into account the sum which has been
paid to such person as monthly allowance for maintenance and interim
maintenance under Section 125 at the time of making any decree for the recovery of
any maintenance or dowry.
Enforcement of Order of Maintenance
Section 128 deals with ‘Enforcement of order of maintenance’.
A copy of the order under Section 125 is given to that person free of cost in whose favour it
is made. In case the order is in favour of children, then the copy of the order will be given to
the guardian of children.
If any Magistrate has made an order under Section 125, then any Magistrate of India can
enforce this order where that person lives who have to give maintenance.
The Magistrate has to satisfy two conditions before enforcement of order:
o Identity of parties, and
o Proof of non-payment of allowances.
Case Laws
Savitaben Somabhai Bhatiya v. State of Gujarat (2005):
o The Supreme Court held that Section 125 of the Code of Criminal Procedure, 1973 has been
enacted in the interest of a wife and one who wants to take the benefit under sub-section
(1)(a) of Section 125 has to establish that she is the wife of the person concerned.
Vikas v. State of Uttar Pradesh (2021):
o The Allahabad High Court laid down that the Magistrate has the right to alter the amount of
the maintenance to be paid, if he thinks that there is a change in the circumstances of the
individual who has been paying or receiving the monthly allowances.
Mohd. Ahmed Khan v. Shah Bano Begum (1985):
o The Bench of the Supreme Court declared that a Muslim divorced woman who cannot
maintain herself is entitled to maintenance from her former husband till the time she gets
remarried.
