CODE OF CRIMINAL PROCEDURE-

PROJECT WORK
FACULTY OF LAW, ALIGARH MUSLIM UNIVERSITY

ORDER FOR MAINTENANCE OF WIVES,

CHILDREN AND PARENTS

(Sections 125 to 128)

SUBMITTED BY - SHIVAM GARG

16 BALLB-31
GJ-6016
GROUP- II
B.A.LL.B [IX SEM]

SUBMITTED TO - PROF. ABSAR

KIDWAI

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 ACKNOWLEDGEMENTS

I, SHIVAM GARG, would like to humbly present this project

to Prof. ABASR KIDWAI sir. Firstly, I would like to express
my most sincere gratitude to him for his encouragement and
guidance regarding this project. I am thankful for being given
the opportunity of doing a project on this topic.

I take this opportunity to thank the university, and Dean and

Chairman Sir for providing extensive database resources online
during this pandemic. I would like to thank God for keeping me
in good health and senses to complete this project. I would also
like extend my hand of gratitude towards the friends and
family, without whose support and encouragement this project
would not have been a reality.
.

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 CONTENTS

TOPIC- ORDER FOR MAINTENANCE OF

WIVES, CHILDREN AND PARENTS

(Sections 125 to 128)

1. Introduction
2. Scope and objective of Proceedings
3. Definition of Maintenance or alimony
4. Nature of proceeding u/s 125 Cr PC is civil
5. Section 125 CrPC to be construed liberally
6. Order for maintenance of wives, children and
parents (Section 125)
7. Strict proof of marriage should not be insisted as
pre-condition for maintenance u/s 125 CrPC
8. Procedure (Section 126)

9. Alteration in allowance (Section127)

10. Enforcement of order of maintenance (Section128)

11. Conclusion

12. Bibliography

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 CHAPTER IX

ORDER FOR MAINTENANCE OF WIVES, CHILDREN AND PARENTS

(Sections 125 to 128)

Introduction

Section 125 of Code of Criminal Procedure, 1973 provides for maintenance as a matter
of duty on a person who is in a position to do so in favour of those who are dependent on him
or her, irrespective of their religion. This secular provision of the Code contains comprehensive
provisions specifically designed for the benefit or protection of the woman (wife, widow or
divorcee) among others, who are regarded as, or, are likely to go deserted, destitute or vagarant
due to omission or failure on the part of husband to maintain inspite of having his sufficient
means or capacity.

The assumption underlying maintenance and alimony is that the husband has to maintain
his wife not only during period she remained his wife but also after divorce when she ceases to
be his wife, so long as she does not remarry.1

Scope and objective of Proceedings

Scope and objectives of proceedings for maintenance of wives, children and parents are the
following:

• The proceedings are not punishable in nature. The main objective of Chapter IX of
Cr.PC is not to punish a person who is not maintaining those whom he is bound to
maintain.

• The main objective is to prevent homelessness by way of procedure to provide a

speedy remedy to those who are in pain.

• It does not make any distinction between persons belonging to different religions or
castes.

• It has no relation to the personal laws of parties.

1
R. V. Kelkar’ s CRIMINAL PROCEDURE CODE 844 (Eastern Law Publication 6 th edn. 2014).

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 Definition of Maintenance or alimony

The word ‘Maintenance’ is not defined in the Code of Criminal Procedure, 1973.
Chapter IX of the Code of Criminal Procedure deals with provisions for maintenance of
wives, children and parents. ‘Maintenance’ in general meaning is keeping something in good
condition. ‘Maintenance’ in legal meaning is money (alimony) that someone must pay
regularly to a former wife, husband or partner, especially when they have had children
together. It is the duty of every person to maintain his wife, children and aged parents, who
are not able to live on their own.

According to Corpus Juris, “alimony” is defined as the allowance required by the law to be
made to the wife out of her husband’s estate for her support either during the matrimonial suit
or on its termination, where the fact of marriage is established and she proves herself entitled
to separate maintenance. In English Law in recent years the alimony and maintenance have
developed into, what is called “financial provisions” and “property adjustments” and
maintenance may be claimed by either party against the other.

Manu declared: “The aged parents a virtuous wife and an infant child must be
maintained even by doing hundred misdeeds”.2

Dwarika Prasad Satpathi Vs. Bidyut Prava Dixit, it was observed that the nature of
provisions u/s 125 CrPC is a social justice legislation. Distinct approach should be adopted
while dealing with cases u/s 125 CrPC. Drift in approach from "adversarial" litigation to social
context adjudication is needed.3

Nature of proceeding u/s 125 Cr PC is civil

The jurisdiction of magistrate under chapter IX Cr PC is not strictly a criminal

jurisdiction. Proceedings u/s 125 CrPC are civil in nature.4

2
Bajaj, Shweta 31/12/2012 CHAPTER-1 INTRODUCTION “Maintenance of Spouse and Children An empirical
study of Law and practice with special reference to Faridabad”
https://shodhganga.inflibnet.ac.in/bitstream/10603/132500/7/07_chapter%201.pdf
3
AIR 1999 SC 3348
4
Vijay Kumar Prasad v. State of Bihar, (2004) 5 SCC 196. See also Savitri v. Govind Singh Rawat, (1985) 4
SCC 337.

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 Section 125 CrPC to be construed liberally:

Section 125 CrPC is measure of social legislation and is to be construed liberally for the
welfare and benefit of the wife & children. Nagendrappa Natikar Vs. Neelamma, proceeding
u/s 125 CrPC is summary in nature and intended to provide speedy remedy to wife.5

Order for maintenance of wives, children and parents (Section 125)

(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 rate, as such magistrate thinks fit, and to pay the same to such person
as the Magistrate may from time to time direct;

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.

Provided 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:

5
AIR 2013 SC 1541 See also Dwarika Prasad Satpathi v. Bidyut Prava Dixit, AIR 1999 SC 3348

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 Provided also that an application for the monthly allowance for the interim maintenance
and expenses of 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 Majority Act, 1875 (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 of
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 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
port of each month’s allowance 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;

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 date 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.

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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 if 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.6

Strict proof of marriage should not be insisted as pre-condition for maintenance u/s 125
CrPC

Construing the term 'wife' broad and expansive interpretation should be given to term
'wife' to include 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 pre-condition for maintenance.7

Procedure (Section 126)

(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
(c) where he last resided with his wife, or as the case 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

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CHAPTER IX, SECTION 125 TO 128 OF CRPC – ORDER FOR MAINTENANCE OF WIVES, CHILDREN
AND PARENTS
https://www.writinglaw.com/chapter-ix-125-128-of-crpc-order-for-maintenance-of-wives-children-and-parents/
7
Chanmuniya Vs. Virender Kumar Singh Kushwaha, JT 2010 (11) SC 132.

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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 wilfully avoiding service, or wilfully
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 just 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.

All the evidence shall be taken in presence of him or his pleader. However, the court
may proceed ex parte if he wilfully neglects to the attend the court. In the famous case of Surya
Kanth v. Allamprabhu it it was held that ex-parte order may be set aside for good cause on an
application made within 3 months.

In Middleton vs. Baldock, giving a broad meaning to the term maintenance Denning,
L.J., observed as under :- " wife has a very special position in the matrimonial home. She
is not the subtenant or licensee of the husband. It is his duty to provide a roof over her head.
He is not entitled to tell her to go without seeing that she has a proper place to go to. He is not
entitled to turn her out without an order of the court: see Hutchinson v. Hutchinson2. Even if
she stays there against his will, she is lawfully there, and, so long as she is lawfully there, the
house remains within the Rent Acts and the landlord can only obtain possession if the
conditions laid down by the Acts are satisfied."8

Order of maintenance may be revised u/s 397(2) of the code. 9

8
1950(1) AUER 708
9
Ratanlal & Dhirajlal The Code of Criminal Procedure 133 (Lexis Nexis 21st edn. 2013).

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 Alteration in allowance (Section127)

(1) On proof of a change in the circumstances of any person, receiving, under section 125 a
monthly allowance, or ordered under the same section to pay a monthly allowance to his wife,
child, father of mother, as the case may be, the Magistrate may make such alteration in the
allowance as he thinks fit in the allowance for the maintenance or the interim maintenance, as
the case may be;

Provided that if he increases the allowance, the monthly rate of five hundred rupees in
the whole shall not be exceeded.

(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 after her divorce, cancel the order from the date
thereof.

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(4) At the time of making any decree for the recovery of any maintenance or dowry by any
person, to whom a monthly allowance 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 by, such person as
monthly allowance for the maintenance and interim maintenance or any of them, as the case
may be, in pursuance of the said order.

Enforcement of order of maintenance (Section128)

A copy of the order of maintenance shall be given without payment to the person in
whose favour it is made, or to his guardian, if any, or to the person to whom the allowance 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 allowance due.

The order may enforce in any place where the person against whom it is made.

Conclusion

Right to seek maintenance under s. 125 Cr. P.C is a measure in the alternative to provide
for destitute wives. It 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.

Provision of maintenance as enshrined in section 125 CrPC is a secular provision and is

applicable on all irrespective of their personal religion. Muslim Women (Protection of Rights
on Divorce) Act- enacted as a sequel to the Supreme Court judgement in Shah Bano, case- has
made the application of provisions of the CrPC for Muslims optional depending upon mutuality
of a divorcee with her former husband to that effect. With the result the provisions of the CrPC
in regard to maintenance of a divorcee are no longer compulsory for Muslims; as is the optional
uniform application of the provisions of the Special Marriage Act to all Indians ever since its
enforcement after the commencement of the constitution.

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 BIBLIOGRAPHY

1. R. V. Kelkar’ s CRIMINAL PROCEDURE CODE (Eastern Law Publication 6th edn.

2014).
2. Ratanlal & Dhirajlal The Code of Criminal Procedure (Lexis Nexis 21st edn. 2013).
3. https://shodhganga.inflibnet.ac.in/bitstream/10603/132500/7/07_chapter%201.pdf
4. https://www.writinglaw.com/chapter-ix-125-128-of-crpc-order-for-maintenance-of-
wives-children-and-parents/

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