Maintenance Under Section 125 of

CrPC
Introduction
Section 125 of CrPC is a means to provide a speedy,
inexpensive and effective remedy against persons who refuse
or neglect their duty to maintain persons dependent on
them. The section discharges a social function in order to
achieve and maintain societal balance. It also comes under
Article 15 (3), which is further reinforced by Article 39. It is
an important section that deals with women’s human rights
and are a legal instrument of social relevance that is used to
uphold the rights of the weaker section of society. [1] They are,
in a way, aimed at preventing starvation and vagrancy
relating to the commission of crimes.[2]

Scope of Section 125 of CrPC

Maintenance under the law is defined as an amount of money
paid to a dependent person such as a wife, child or parent so
that they can support themselves financially. It is also
defined under Section 2(b) of the Maintenance and Welfare of
Parents and Senior Citizen Act, 2007, as a term that
“includes provision for food, clothing, residence and medical
attendance and treatment.”

Generally, such matters of maintenance are dealt with the

personal laws of the religion to which the parties belong.
However, this section is applicable to all religions and the
personal law under it holds no value in terms of authority [3],
although, it is relevant to establish the validity of a marriage
and cannot be excluded altogether.[4] There is no conflict
between Section 125 and provisions of any personal law on
maintenance. It may however be taken into consideration by
the magistrate when fixing the allowance to be paid if some
maintenance has already been awarded under personal law.
Otherwise, it is distinct and separate from the personal laws
of the parties and is truly secular in nature. [5]

The provision provides for interim maintenance, which means

the court can order the husband to maintain his wife the
matter is being decided, however, this amount can be altered
or even cancelled by the magistrate if the situation of the
parties in the matter changes.[6] Such applications can be filed
in the concerned district. The purpose of the section is social
in nature.[7]

Who Can Claim Maintenance Under Section 125 of CrPC

Wife

Any wife, whether of major or minor age, who is unable to

maintain herself is entitled to maintenance under Section 125
(1) (a). According to Explanation (b), the term ‘wife’ under
this section included an un-remarried divorced wife. Earlier,
till the judgment in the Shah Bano Begum case, a divorced
wife was not entitled to maintenance and this caused a lot of
injustice to women, especially of the Muslim community. The
marriage in any of these cases has to be valid according to
law. A woman despite the unfortunate situation, is in a
relationship with a married man is not entitled to
maintenance, this may cause injustice but the Supreme
Court stated such inadequacy can only be cured by the
legislature.[8] Strict proof of marriage is not absolutely
essential, since this section is meant to be a tool for social
justice and therefore given to a broader interpretation,
however, High Courts and the Supreme Court went back and
forth on this issue till the Supreme Court decide that a man
and a woman living together as husband and wife for a
reasonably long period of time, maybe considered under this
section as a valid proof for married life and shall be treated
as such for matters of maintenance.[9] If a husband remarries,
the first wife still comes under the definition, is entitled to
maintenance even if the second marriage is valid under
personal law, even if she has consented to the marriage.
Proof of neglect in such a case is not necessary for the wife
to make her case for maintenance.[10]

There are manners where this maintenance can be excepted.

Under subsection (4) of Section 125 the court need to ensure
that the husband has sufficient means to maintain his wife, if
he doesn’t, then this section does not apply. Furthermore,
the wife should not be living in adultery separately, unless
according to the court her refusal to live with her husband is
justified. This applies even if the separation is mutual. If a
marriage is void or annulled under Section 12 of the Hindu
Marriage Act, a wife is not entitled to maintenance. [11]

Child

A child who is still a minor according to the Indian Majority

Act, 1875, i.e. a person who has not attained the age of 18
years, whether they are legitimate or illegitimate, or married
or unmarried, are entitled to claim maintenance under
Section 125 (1)(b). Furthermore, if a minor girl’s husband is
unable to support her, then the father of such a girl is
required to maintain her according to the Proviso in this
section. The child has to have been born for such a claim to
exist, maintenance of a fetus when the woman is still
pregnant does not come under this section. Even in a case
where the child is under someone else’s custody, the father
of such a child still has the obligation to maintain them.

The maintenance of a child under this section is based on the

Paternity. This is irrespective of the legitimacy or illegitimacy
of the child, therefore a child whose parents are not legally
wedded is still entitled to maintenance by law. If paternity
cannot be established then the child has no claim. [12] The child
may be adopted or natural-born.

After attaining majority, a child, whether legitimate or

illegitimate as long as they are not a married daughter can
claim maintenance under Section 125 (1)(c), by reason of
physical or mental abnormality or injury and the child is
unable to maintain themselves pertaining to such reason. A
major unmarried daughter not suffering from any mental or
physical ailment cannot claim maintenance under Section
125 CrPC.[13]

Parents

According to Section 125 (1) (d), a mother or a father who is

unable to support themselves is entitled to claim
maintenance under this section from their children. Although
the word ‘his’ is used, it applies to both male and female
children of the parents. Indian society casts a duty on the
children to maintain the parents and this social obligation
applies equally to a daughter.[14]

It is not clear whether the interpretation of the words ‘father’

and ‘mother’ include adoptive father and mother, and
stepfather and mother, or not. Bombay High Court stated in
a judgment that while the term father under Section 3 (20)
of General Clauses Acts includes an adoptive father, the term
‘mother’, with regard to the section’s object and intention,
would have to be given its natural meaning and will not
include a stepmother.[15] Supreme Court later in a judgment
liberally construed the section and stated that a stepmother
with no child of her own and whose husband has expired, or
if her husband is living, is unable to support her then she is
too is unable to support herself, can claim maintenance from
her stepson.[16]

The word ‘parent’ has not been used in subsection (4); this
has been interpreted by the High Court of Andhra Pradesh
in N. B. Bhikshu v. State of Andhra Pradesh[17], to mean
that only a legitimate child has the obligation to maintain
their parent and the parent may claim against the
unfulfillment of such obligation against any child if there are
more than one.

Features of Section 125 of CrPC

The maintenance claim is based on the following conditions,
listed as follows:

1. Sufficient means to maintain

It is the most fundamental condition that order of

maintenance against a person can be passed only if he or she
themselves have “sufficient means to maintain” the person
who has the claim, and neglect or refuses to do so. As stated
by Delhi High Court, it means that as long as a man is
healthy and able-bodied, he is held as being possessive of
the means to support his family and he cannot be relieved of
such obligation simply because he is unemployed, in debt or
insolvent.[18] The burden of proof is on the person claiming
that he has no sufficient means to maintain. The obligation is
not removed simply because he is unemployed. The High
Courts have been harsher in the interpretation as is also
displayed in the case Hardev Singh v. State[19], where the
court stated that if a person cannot pay such maintenance
allowance because he is a monk, then it is his duty to throw
off the yellow robe and work. The reason for such
interpretation is attributed to the social justice factor and the
protection of the weaker section of the society, which
comprises women, children, and the elderly.

2. Neglect and Refusal to maintain

‘Neglect’ is used to mean a failure to maintain even when no

such demand is made against the maintainer, the term
basically means a disregard of duty which could be either
willful or intentional.[20] The ‘refusal’ to maintain is when there
is a clear intentioned refusal to perform his duty, this refusal
may be expressed or even implied by the conduct of the
husband. The burden of proof for this lies with the claimant.
It is at the offset essential that the wife is living with the
husband for her to claim maintenance, but such a condition
can be removed from her claim if the magistrate finds that
she has a justified reason for doing so, for example, if the
husband has taken in a new wife and if it is ritually permitted
by their personal law, the claimant wife may refuse to live
with the husband still be able to claim maintenance. The
husband may in such a case be considered neglectful and
refusing to fulfill his obligation, even if his condition is that
the claimant wife should reside with him and his other wife in
order to claim maintenance.[21]

3. The claimant must be unable to maintain himself/herself

One of the essentials for a wife to claim maintenance is her
inability to maintain herself. She does not have to specifically
plead that she is unable to maintain herself. But in a
Karnataka High Court case, the court held that if the wife is
healthy and of quality education and still unable to maintain
herself then she can still claim maintenance but these facts
will affect the amount awarded to her.[22]

4. Quantum of maintenance

The magistrate was required to award maintenance not

exceeding Rs. 500 till the Amendment Act No. 50 of 2001. No
there is no limit set for a maximum amount, it’s left up to the
Magistrate to fix a monthly rate as he or she may deem fit
for the case. The rate has to be fixed and determinate and
not progressively increasing, however, it can be altered from
time to time according to Section 127. If the wife and child
are both claimants against the same person then it is not
within the section to award them a joint payment, each one
has a separate claim which may be awarded as such.

Enforcement of Section 125 of CrPC

There are two modes of enforcement of the section listed
under sub-section (3) which are

1. Warrant for Fines

2. Imprisonment may extend to one month until payment
is made, if after the warrant if part or whole of the
amount remains unpaid.
Warrants are only issued if an application for the same is
made to the court within a period of one year from when this
amount becomes due, according to the first proviso to
Section 125 (3). The Supreme Court has made it clear that
the imprisonment provided for under this section is not
present as an alternative to the liability of the payment of the
maintenance, rather it is a mode of enforcement so that the
liability is discharged at the earliest.[23] The liability is only
discharged when the payments are made.

Conclusion
The object of Section 125 of CrPC is to protect the rights of a
dependent person, who find themselves in a harsher position
than others and do not have the means and resources to
maintain themselves. It has usually been the wives, children,
and parents in such matters. However, since the societal
aspect weighs heavy on the instrumentality of this section, it
becomes important for the courts to consider the facts on a
case-to-case basis, and ultimately remain vigilant that justice
is done to all parties. It is important that the changing
cultural facts and dynamics be taken into consideration while
moving forward. So far, the interpretations made by
Supreme Court have been fairly liberal and flexible, and the
manner of the decision by High Courts have been slightly
different but it only displays that the cultural and societal
aspects play out differently in different regions and it should
be left up to the wisdom of the courts in such matter unless
otherwise required.