Maintenance Under Code of Criminal Procedure: Submitted by Anjali Gupta & Kanika Mawri LLB (3 Years) Section C-Sem I

MAINTENANCE UNDER
CODE OF CRIMINAL
PROCEDURE
SUBMITTED BY ANJALI GUPTA & KANIKA MAWRI
LLB(3 YEARS)
SECTION C- SEM I
Section 125-128 of the Code of Criminal Procedure,1973 (CRPC) deals
with the provisions for maintenance of wife, children and parents. The
Code of Criminal Procedure is a procedural law however there are a few
substantive provisions in it. Section 125 constitutes an exception which is
a substantive provision and confers right of maintenance on certain
persons.
Legislated as a tool for social justice, Section 125 of the Criminal

Procedure Code, 1973 provides an effective remedy for neglected persons
to seek maintenance. A follower of any religion can apply for maintenance
under Section 125 without restriction.
Under Section 125, any of the following persons can claim maintenance:
1)WIFE
UNDER HINDU LAW:
A woman is considered as the “wife” only if her marriage to the man is legally valid.
For Hindus, a legally valid marriage requires that:

• both parties are Hindus,
• the marriage is performed in accordance with customary rites of the parties,
• neither party has a living spouse at the time of marriage,
• neither party is of unsound mind at the time of marriage,
• the male is at least 21 years old,
• the female is at least 18 years old and
• both parties are not related by sapinda or within prohibited degrees of relationships.
For Hindus, the second wife cannot claim maintenance because a second marriage is forbidden by
law and is not recognized as being valid. The second wife is entitled to claim maintenance only if
the husband concealed his first marriage from her.
UNDER MUSLIM LAW:
People from all religions can claim maintenance under section 125, however-
Under Mohammedan law, a wife has right to receive monetary support until the
end of three months(Iddat) from the date of divorce. Iddat is the period a woman
must observe after the death of her husband or after a divorce, during which she
may not marry another man. The holy Quran is silent about the extension of
alimony right after the Iddat period.
Since Mohammedan law is a special law it will always prevail over general
law(Crpc). Therefore, Mohammaden law always had supremacy over Section 125
of Crpc and the Muslim women could not claim maintenance.
But in the landmark case Ahmed Khan v. Shah Bano Begum,

the Muslim women got that right under section 125 of Crpc
even after the Iddat period.
LANDMARK CASE UNDER MUSLIM MAINTENANCE:
MOHD. AHMED KHAN v. SHAH BANO BEGUM(AIR 1985 SC 945)
~FACTS:
 Shah Bano, 62-year-old Muslim woman was married to Ahmad Khan who had
pronounced talaq or divorce against her.
 Since she could not maintain herself and her 5 children, she had approached the court under
section 125 of the Crpc.
 Her husband relied on the argument that the issue would fall under the purview of Muslim
personal law and as per Muslim personal law, he would only be liable to pay maintenance for
the iddat period along with the return of the mehr.
~JUDGEMENT:
The case was decided in favor of Shah Bano and it was held that:
 The liability of the husband to pay maintenance to his wife after divorce does not stop at the
expiration of the Iddat period if she does not have enough means to maintain herself.
 It was made clear that Section 125 of Cr.P.C applies to every single citizen of the nation
irrespective of the person’s religion and caste.
 The court said that there was no conflict between the provisions of Sec. 125 and those
of Muslim laws on the question of the Muslim husband’s obligation to pay maintenance
for his divorced wife who cannot maintain herself after divorce.
 Section 125 overrides the personal law if there is any conflict between these two.
2)2) CHILDREN
CHILDREN
• A minor child is unable to maintain itself, is entitled to claim maintenance from
father. Here 'minor' means a person who has not attained the age of majority
under the Indian Majority Act.
• It is immaterial whether such a child is legitimate or illegitimate, male or
female, married or unmarried.
• If such a minor is married daughter, the liability of father to maintain her will
continue till she attains the age of majority if her husband is a minor too.
• After attaining majority a child is not entitled to claim maintenance from father.
But if such child is unable to maintain itself by reason of any physical or mental
abnormality or injury, such liability continues. A major married daughter cannot
claim maintenance from her father even if the above conditions are fulfilled. In
such a case it is the husband's responsibility to maintain her.
• The right of child to claim maintenance from father is individual and
independent of the right of the mother. Hence the child is entitled to claim
maintenance from father even if the mother is unchaste or of bad character or
is not entitled to maintenance for any other reason.
3) PARENTS
• Both the mother and the father, whether natural or adoptive, can claim
maintenance from any one or more of their children.
• Married daughter can also be liable to maintain her parents.
• A step-mother can claim maintenance only if she is a widow and does
not have natural-born sons or daughters.
Person from whom maintenance is claimed must have the ability
to pay maintenance. Ability means being employed, owning land,
having a source of income or having a healthy body capable of
work.
• The person must have neglected the claimant or refused to pay

maintenance.
• Persons claiming maintenance must be unable to maintain
themselves. If a person is healthy, adequately educated or
capable of pursuing gainful employment no maintenance is
given. Wives and elderly parents are generally given
maintenance. The mere fact that the wife is earning does not
disentitle her from claiming maintenance. The question is
whether she is able to maintain the same standard of living that
subsisted prior to the neglect or divorce with her own earnings
without having to depend on another.
Following are the grounds on which the application can be contested :
• If conditions above mentioned are not satisfied.
• Where application is made by wife, husband can contest that :

a. she is living in adultery
b. or she refused to stay with him without sufficient reasons
c. or husband and wife are living separately with mutual consent
d. if order is made by civil court to that effect
e. remarriage of such woman
• If application is made by a major son, father can contest that there is no

physical or mental disability.
• If application is made by a minor married daughter, father can defend that

husband of such minor daughter have sufficient means to maintain her.
Section 126 of The Code of Criminal Procedure,1973:
1. Proceedings under section 125 may be initiated against a person in any district
where –
• he is residing
• he or his wife resides
• where he last resided with his wife or with the mother of illegitimate child
2. Magistrate must take all evidence in presence of both parties and if such is not
possible then in presence of its pleaders.
3. Proviso to S.126 states that if the person is willingly avoiding service or willingly
neglecting to attend court then Magistrate can pass an ex-parte order.
4. Such application can be set aside within 3 months by showing good cause for not
appearing.
Maintenance orders under Section 125 can be heard only by the Judicial Magistrate
of First Class. She/he can order a monthly allowance of maintenance that she deems
just and fair. This is usually decided after considering the income of the person, the
standard of living that is consistent with the status of the claimant and the separate
earnings, if any, of the claimant.
The maintenance must aid in ensuring the same standard of living for the claimant. It
must neither be so plentiful that it tempts the claimant to rely solely on maintenance
nor so pitiful that it pushes the claimant into vagrancy or a lower standard of living.
Maintenance is payable either from the date of order of payment or from the date of
application for maintenance, depending on the court’s judgment of the cooperation
and decent behavior demonstrated by the parties.
A second application of maintenance is allowed under Section 125 and the quantum
of maintenance can be enhanced with passage of time or change in material
circumstances and prices.
A wife can file maintenance proceedings in any place where :
• husband resides; or
• wife resides; or
• husband is physically present at the particular point of time; or
• husband last resided with wife.
Parents can file maintenance proceedings in any place where :
• they reside; or
• the child resides.
Under Section 127 of The Code of Criminal Procedure, 1973:
i. Magistrate has power to alter or cancel maintenance according to the

facts and circumstances of each case.
ii. Following may be the grounds for alteration or cancellation :

• wife is living in adultery
• refusal to live with husband without sufficient cause
• mutual consent
• divorce
• remarriage, etc.
Section 128 of The Code of Criminal Procedure,1973:
After a maintenance order is passed, a copy of the order must be
supplied to the claimant free of cost. The person who is ordered to
pay maintenance must obey the court order. The failure to pay
maintenance without sufficient reason will result in a court warrant
for collecting the amount due. The court warrant can attach any
immovable property or salary of the person. If the person does not
pay maintenance even after the warrant is executed, the person is
liable to imprisonment for a maximum of 1 month or until the
amount is paid, whichever is earlier. The application for
enforcement of maintenance must be filed within 1 year from the
date on which it became due. Otherwise the application will be
dismissed.

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MAINTENANCE UNDER

Legislated as a tool for social justice, Section 125 of the Criminal

For Hindus, a legally valid marriage requires that:

But in the landmark case Ahmed Khan v. Shah Bano Begum,

• The person must have neglected the claimant or refused to pay

• Where application is made by wife, husband can contest that :

• If application is made by a major son, father can contest that there is no

• If application is made by a minor married daughter, father can defend that

i. Magistrate has power to alter or cancel maintenance according to the

ii. Following may be the grounds for alteration or cancellation :

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