International Journal of Science and Research (IJSR)

ISSN: 2319-7064
ResearchGate Impact Factor (2018): 0.28 | SJIF (2018): 7.426

Secularity of the Sec 125 CRPC

Harshit Pandey1, Dr. Vijay Srivastava2
Abstract: The basic aim of this article is to look into the secularity of the Sec 125 of CRPC. The prime question which this article looks
upon is whether this section is secular enough to look upon all the sections of the society equally excluding the factors such as caste,
creed, religion and gender. It also looks upon the basic factors or reasons for the inclusion of this section in CRPC and the uniformity of
this section upon all the classes. Maintenance may be granted to dependent children, parents and legally wedded wives, including but
not limited to a divorced spouse, mistress, illegitimate children, etc. In certain cases under personal law, the Indian courts have adopted
a lenient view and granted the husband the right to receive maintenance. Such right however, is conditional and typically conferred
upon the husband, only if he is incapacitated due to some accident or disease and rendered incapable of earning a livelihood. Such an
entitlement is not available to an able person, doing nothing for a living or a ‘wastrel’. The remedy under Section 125 is speedy and
inexpensive, as compared to personal laws. The provision relating to maintenance under any personal law is however, distinct and
separate from Section 125. There is no conflict between both the legal provisions. A person is entitled to maintenance under Section 125
despite having obtained an order under the applicable personal law.

Keywords: Secularity, Uniformity, Maintenance

1. Introduction There is no conflict between the two provisions as the

provisions relating to maintenance are distinct and
The concept of „maintenance‟ in India is covered both separate [2].
under Section 125 of the Code of Criminal Procedure,
1973 (Section 125) and the personal laws. This concept 2. Definition of the Term Maintenance
further stems from Article 15(3) reinforced by Article 39
of the Constitution of India, 1950 (the 'Constitution'). Maintenance is the process of maintaining or preserving
Under Indian law, the term „maintenance‟ includes an someone. A state of providing financial support for a
entitlement to food, clothing and shelter, being typically person‟s living expenses or a support so much in need of.
available to the wife, children and parents. The term has been generally interpreted to include food,
clothing and shelter. However, in recent time it has been
The object of maintenance is to prevent immorality and held that any other requirements, i.e., necessary for a
destitution and ameliorate the economic condition of person to remain fit healthy and alive is also to be
women and children. Maintenance can be claimed under included within periphery of the term „maintenance‟. It is
the respective personal laws of people following different based on the premise that the wife is entitled to live as per
faiths and proceedings under such personal laws are civil the standard and status of her husband. Under Indian law,
in nature. Proceedings initiated under Section 125 the term „maintenance‟ includes an entitlement to food,
however, are criminal proceedings and, unlike the clothing and shelter, being typically available to the wife,
personal laws, are of a summary nature and apply to children and parents. It is a measure of social justice and
everyone regardless of caste, creed or religion. The object an outcome of the natural duty of a man to maintain his
of such proceedings however, is not to punish a person for wife, children and parents, when they are unable to
his past neglect. The said provision has been enacted to maintain themselves.
prevent vagrancy by compelling those who can provide
support to those who are unable to support themselves and Origin and development of provisions of maintenance
have a moral claim to support. Maintenance can be
claimed either at the interim stage, ie, during the pendency Origin and development of provisions of maintenance:
of proceedings, or the final stage [1].
a) Concept of maintenance: The law of maintenance is
Section 125 of the Code of Criminal Procedure serves as varied and extensive. In India, different communities
an essential economic umbrella to the weaker sections of have different religions of their own and their
the society who the lack of means to support their survival maintenance laws are also different with certain
and to maintain themselves. The main objective of this common features. Generally, maintenance means
section is to alleviate the status and economic condition of maintenance of wife, children, parents, grandparents,
the neglected wives and the divorcees who are discarded. grandchildren and in some cases maintenance of poor
This section serves as a guardian to the Wives, Children relations (Muslims).
and Parents who benefit the maximum from this section. b) In Mulla‟s book, Mahomedan Law, in Chapter XIX,
To enforce the social duty of preventing the vagrancy and Maintenance has been defined to include “food,
destitution, that in most severe cases often lead to crimes. raiment and lodging”. This definition of “maintenance”
Section 125 ensures that maintenance is granted is not exhaustive. The word “maintenance” includes
irrespective of the Personal laws of the Hindus (Section 24 other necessary expenses for mental and physical well-
of the Hindu Marriage Act, 1955), Muslim (Women being of a minor, according to'his status in society.
(Protection Of- Rights On Divorce) Act, 1986) and Parsis Educational1 expenses were included in the definition.
(The Parsi Marriage and Divorce Act, 1936).Though there c) Chapter IX of the Code of Criminal Procedure, 1973
are separate personal laws governing marriage in every provides for maintenance of wives, children and
marriage, but Section 125 works on the secular realm. parents. The provision of maintenance is a factor for
Volume 8 Issue 4, April 2019
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 International Journal of Science and Research (IJSR)
ISSN: 2319-7064
ResearchGate Impact Factor (2018): 0.28 | SJIF (2018): 7.426
social justice, and specially formed to protect women, applicable to all irrespective of their personal Laws
children, old and infirm parents and comes under the although maintenance is a Civil remedy yet it has been
constitutional1 area of Article 15 (3) read with Article made a part of this Code to have a quick remedy and
39 of the Constitution of India. proceedings and S.125 is not a trail as non-payment of
d) Generally speaking, Hindu Marriage Act, 1955 does maintenance is not a criminal offence. Right to seek
not extend to a person who is a Buddhist, Jain or Sikh maintenance Under Section 125 of the [Link] is an
by religion. In a similar way, according to the independent right. It should be kept in view that the
provisions of “The Hindu Adoptions and Maintenance provision relating to maintenance under any personal law
Act, 1956”, the said act of 1956 applies to any person is distinct and separate. There is no conflict between the
who is a Buddhist, Jain or Sikh by religion and so on two provisions. [3]
(Ref. Sec 2(b)). This Act of 1956, however does not
extend to any person who is a Muslim, Christian, Parsi 3. Person Entitled to Receive Maintenance
or Jew by religion (Ref- Section 2(c) of 1956 Act). In
case of material considerations, it would be revealed Maintenance under section 125 of the code of criminal
that provisions of maintenance in chapter IX of the procedure 1973 applies to any relationship where one
Code of Criminal Procedure, 1973 is basically secular person has a legal duty to maintain another person.
in nature and provisions of the said chapter is
applicable to all sections of communities in India, a) Husbands and wives are responsible for each other‟s
whatever may be their caste or religion i.e., personal maintenance.
laws. It must however be very emphatically stated that b) The parents of a child share responsibility for the
personal laws is relevant for coming at a decision maintenance of that child.
regarding the validity of the marriage, etc and such c) Children have a duty under certain circumstances to
consideration can not be totally excluded from due maintain their parents.
consideration at the relevant time.
Maintenance may be granted to dependent children,
It can be said that such maintenance laws in Cr. P.C., 1973 parents and legally wedded wives, including but not
have their roots in the vagrancy laws in England. The limited to a divorced spouse, mistress, illegitimate
provisions of maintenance laws of Hindu Personal law and children, etc
Muslim Personal law have their original roots in the
Hindu Dharmashastras and in the holy Koran. The Wife: Wife can claim maintenance only if she is a legal
Christian personal laws have root in doctrines of the holy wedded wife and not just a mistress. But, if she is living in
Bible. adultery or being married to any other man she cannot
claim maintenance. Marriage must be a valid one as per
Order for Maintenance under sec 125 of CRPC: the personal law of both the parties, but when the marriage
is proved illegal the wife cannot claim for maintenance.
Order for maintenance of wives, children and parents; Wife means and connotes divorced wife or divorced by
mutual consent, but the divorced wife can claim
a) If any person having sufficient means neglects or maintenance as long as she does not remarry.
refuses to maintain
b) His wife, unable to maintain herself, or For Hindus, a legally valid marriage requires that:
c) His legitimate or illegitimate minor child, whether
married or not, unable to maintain itself, or  Both parties are Hindus,
d) His legitimate or illegitimate child (not being a married  The marriage is performed in accordance with
daughter) who has attained majority, where such child customary rites of the parties,
is by reason of any physical or mental abnormality or  Neither party has a living spouse at the time of
injury unable to maintain itself, or marriage,
e) His father or mother, unable to maintain himself or
 Neither party is of unsound mind at the time of
herself,
marriage,
 The male is at least 21 years old,
It is a natural and fundamental duty of every person to
maintain his wife, children and old age parents if they are  The female is at least 18 years old and
unable to maintain themselves or they have no means or  Both parties are not related by sapinda or within
position to maintain themselves. The provisions of the prohibited degrees of relationships.
Code invoke a man to realise his natural duty and
responsibility as a father and it serve as a special purpose For Hindus, the second wife cannot claim maintenance
to avoid vagrancy. The sole purpose and object of these because a second marriage is forbidden by law and is not
provisions is to enable the discarded wife, helpless and recognised as being valid. The second wife is entitled to
deserted children‟s and destitute parents to secure the claim maintenance only if the husband concealed his first
much needed relief because without these provisions of marriage from her.
law the perpetrator will escape the responsibility causing a
burden to his wife and children and indirectly the compels For Muslims, a legally valid marriage requires that:
them to become vulnerable to various crimes. At the time
of enactment of this code section 125 is intended to be  Both parties are Muslims of sound mind

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 International Journal of Science and Research (IJSR)
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 Both parties have attained puberty (presumed at the any one or more of their children. Daughters are also
age of 15), liable to pay maintenance to the mother and the father. A
 Both parties consent to the marriage, step-mother can claim maintenance only if she is a widow
 The parties are not temporarily or permanently and does not have natural-born sons or daughters.
prohibited from marrying each other,
 The woman is not married to another man or observing Conditions for Granting Maintenance
iddat for another man,
 A proposal (ijab) is made, Person from whom maintenance is claimed must have the
 An acceptance of the proposal (qubul) is made, ability to pay maintenance. Ability means being
employed, owning land, having a source of
 Both proposal and acceptance are made at the same
income or having a healthy body capable of work.
occasion and signify the establishment of marriage
with the immediate effect,
1) The person must have neglected the claimant or
 The proposal and acceptance are not repugnant to the
refused to pay maintenance.
Shariat,
2) Persons claiming maintenance must be unable to
 The proposal and acceptance are witnessed by two men
maintain themselves. If a person is healthy, adequately
or a man and two women who are Muslim adults of
educated or capable of pursuing gainful employment
sound mind, know the bride and groom with certainty
no maintenance is given. Wives and elderly parents are
and understand the proposal and acceptance.
generally given maintenance. The mere fact that the
wife is earning does not disentitle her from claiming
Live-in relationships are presumed to be a marriage. The
maintenance. The question is whether she is able to
wife who lives separately without sufficient reasons or due
maintain the same standard of living that subsisted
to personal mutual agreement cannot claim maintenance.
prior to the neglect or divorce with her own earnings
“Wife” includes a divorced woman, but she must not be
without having to depend on another. [4]
remarried on the date that she files an application for
maintenance. A divorced Muslim wife can claim
Cancellation of Order of Maintenance
maintenance even if the iddat period has passed, but she
must not be remarried. The age of the wife is irrelevant in
Section 125 also lays down certain provisions in which the
claims of maintenance – she may be a minor or a major.
spouse is not eligible to the maintenance amount. The
Additionally, the wife must not be living in adultery.
provisions are as follows:
Child: Child means a person who has not reached 18
a) If the wife is living in adultery
years and who is incompetent to enter into any contract. A
b) If the wife refuses to live with her husband without
child need not be a minor, but it must be by reason of
sufficient means
physical or mental abnormality or injury unable to
c) If by mutual consent they have decided to live
maintain itself.” Unable to Maintain itself” means unable
separately
to earn one‟s livelihood. The Basic Duty of Parents to
d) If the competent Civil court announces a decision
maintain their children a) Both parents of a child have a
e) If the wife remarries to another man after the divorce,
legal duty to maintain their children. This means
then the maintenance amount is cancelled with effect
reasonable support to give children a proper living and
from the date of marriage.
upbringing. It includes money for food, accommodation,
clothing, medical care and education. b) It is the primary
Failure to Comply with the Order
responsibility of parents to maintain their child. Even if
the child is cared for by someone else, the mother and
Section 125 (3) specifies the action that can be taken by
father both have a duty to maintain the child. If a child is
the Magistrate on failure on compliance with the order
adopted, the adoptive parents have a duty to maintain the
which is as follows:
child. c) The duty to maintain a child is supposed to be
shared between the two parents in proportion to their
a) For every breach of the contract a warrant is issued for
respective means. This means that the duty must be shared
levying the amount
on the basis of how much money each of them earns and
b) The imprisonment of one month is a last resort when
what they posses. The cost of raising a child will not
recourse to attachment and sale fail.
necessarily be divided half and half between mother and
father because the wages and resources. Of each parent
must be taken into account. However, one parent will have 4. Judicial Precedents
to carry 100 % of the cost of maintenance if the other
parent has no income or property. If one parent has some Shamima Farooqui v Shahid Khan (CRIMINAL
income and the other parent earns more, then the child APPEAL NOS.564-565 OF 2015)
expenses might be divided accordingly, Such as 20 % of
the parent with small income and 80 % for the other This is a case from Lucknow where a lady named
parent. Shamima Farooqui was ill treated by her husband named
Shahid Khan, who later got remarried. She filed an
His Fathers Or Mothers: Both the mother and the father, application in the year 1998 but was taken up in the year
whether natural or adoptive, can claim maintenance from 2012. Her husband Khan was a Nayak in the Army who
earned Rs 17,654 per month, including some perks. Rs
Volume 8 Issue 4, April 2019
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 International Journal of Science and Research (IJSR)
ISSN: 2319-7064
ResearchGate Impact Factor (2018): 0.28 | SJIF (2018): 7.426
2000 was granted to her initially by family court which The society changes continuously so shall the law, in
later was increased to Rs 4000 after discovering that she order to match the need of the society. The women,
had no means other than this to support her life. However children, and parents being the most essential part of the
the High Court reduced it to Rs. 2000 per month, taking family as well as the society shall be taken care of and it is
note of the fact that the husband had retired from his job a responsibility on the part of the state to make such law to
of Nayak in the Army in the year 2012. This drew the protect their interests. Section 125 is broad enough and
Apex Court‟s ire which declared that Rs 2000 were not secular in nature in order to include all the religions
sufficient do it was again increased to Rs. 4000. In this followed in India by different people across the country.
case, the bench consisting of Justice Dipak Misra and PC But we need to ensure that there is no misuse of the same.
Pant pronounced that husband who has sufficient means
and earns stable income that is enough to support himself References
is under the legal obligation to pay the maintenance
amount to his wife. [5] [1] [Link]
[2] [Link]
Mohd. Ahmed Khan v. Shah Bano Begum [3] Prasad B M and Mohan Manish: The Code of Criminal
Procedure, LexisNexis, Haryana, 21st edition, 2015
Ms. Shah Bano Begum was married to a lawyer named [4] [Link]
Mr. Mohd. Ahmed Khan. They lived together for 43 years [5] [Link]
and had five children. In 1978, Mr. Khan threw Ms. [6] [Link]
Begum out of the shared household and Ms. Begum
applied for maintenance from Mr. Khan under Section 125
of the Criminal Procedure Code, 1973 (Cr.P.C, 1973).
Pending her application, Mr. Khan dissolved the marriage
by pronouncing a triple talaq (divorce on the triple
utterance of the word “talaq” by a Muslim husband) and
paid Ms. Begum 3000 rupees as mahr (money/valuable
property promised to a Muslim woman for her financial
security under the marriage contract) and a further sum of
maintenance for the iddat period (a period of 3 months
that a Muslim woman has to observe before she can
remarry after her divorce). Mr. Khan argued that Ms.
Begum‟s claim for maintenance should be dismissed as
Ms. Begum had received the amount due to her on divorce
under the Muslim personal law. The lower court granted
Ms. Begum‟s claim for maintenance, which was set at 179
rupees per month by the High Court in a revision
application. Mr. Khan appealed to the Supreme Court in
1985 and the Court held that a payment made pursuant to
personal laws cannot absolve a husband of his obligation
to pay fair and reasonable maintenance under Section 125
Cr.P.C, 1973 and a husband can be liable to pay
maintenance beyond the iddat period.[6]

5. Conclusion
The section 125 CRPC is a measure of social justice and
specially enacted to protect women and children
irrespective of their caste, creed, gender and religion. By
virtue of judicial pronouncements and other steps, rights
of women has been restored but it will become fruitful
only when under lying thinking are changed, the women
should emancipate themselves educationally,
economically and socially for their well being only and
then they can understand their rights and worth and
thereafter the social upliftment of the whole community is
possible. It is evident from the recent judicial decisions
that the Indian courts have been progressively liberal in
deciding cases pertaining to maintenance. This Section
provides a summary remedy and is applicable to all
persons. It has no relationship to the personal law of the
parties. It provides speedy remedy and a summary mode
for enforcing the order.

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