CHAPTER: 10

PERSONS ENTITLED TO CLAIM MAINTENANCE UNDER SECTION 125

OF THE CR.P.C

• Section 125 Of The Cr.P.C. Section 125 to 128 of the Code of Criminal

Procedure, 1973 provide for “speedy, effective and rather inexpensive

remedy” to certain persons who are specifically entitled to claim maintenance

under these provisions. The subject matter of these provisions technically deal

with family matters and therefore, it is in the nature of a civil dispute.

• Nevertheless, the rationale for imbibing these provisions into Cr.P.C is to

accord an accelerated and economical remedy than that is available in civil

courts. The Supreme Court in Bhagwan Dutt v. Kamla Devi justified the

presence of Section 125 under Cr.P.C by stating that “these provisions are

aimed at preventing starvation and vagrancy leading to the commission of the

crime”.
 Applicability of the Provisions

• The provisions entailed under Sections 125 to 128 of the Code are applicable

to all persons irrespective of their religions and runs parallel to the personal

laws of the parties. It means that even if a personal law has specific and

detailed provision for maintenance, it cannot make the provision under Cr.P.C

inapplicable. In Nanak Chandra v. Chandra Kishore Aggarwal, the apex

held that “sections 125 to 128 have no relationship with the personal law of

the parties” .

• The application of these provisions went through a great deal of turmoil during

1985 when the apex court decided the landmark case of Md. Ahmed Khan v.

Shah Bano Begum. The court, in this case, granted the maintenance to the

respondent-wife who belonged to Islam where it is believed that no

 maintenance needs to be paid to the wife since the husband pays dower

(reverse of dowry) at the time of marriage.

• The controversy led to the enactment of Muslim Women (Protection of Rights

on Divorce) Act, 1986 to reverse the effect of the judgment in Shah Bano.

However, in Daniel Latifi v. Union of India, the apex court once again upheld

its decision in Shah Bano and the applicability of the Act was held

independent of Section 125.

 Persons Entitled to Claim Maintenance

• Under certain circumstances mentioned under Section 125, a person is

required to pay maintenance to the following persons:

✓ His Wife: The first person entitled to claim maintenance is the wife of the

person who is required to pay maintenance. In Savitabenben Bhatiya v. the

 State of Gujarat, the apex court held that for the application of this section

the “term ‘wife’ means is a legally wedded wife” . Thus, there are two

essential conditions to claim maintenance under this provision by a wife;

firstly, the wife must be legally wedded wife and secondly, the marriage must

be valid in the eyes of law.

✓ In Anupama Pradhan v. Sultan Pradhan, the court laid three criteria to

determine the status of husband-wife. First, the persons claiming to be

husband and wife must have lived as spouses for a considerable period of

time. Second, it should be in the knowledge of the public that they live

together as husband and wife and third, the parties must have been married

according to their personal laws.With respect to the condition of living

together for a certain period and with knowledge of the public, the burden is

on the wife to prove that they have been living together as husband and wife

before their separation. Further, explanation (b) to Section 125 (1) provides

that a “the term wife also includes a divorced woman”. A woman cannot be

divorced unless she was a legally wedded wife of the man. Thus, the right to

maintenance has been extended to a divorced woman as well.

✓ Now, with respect to the validity of a marriage, it always depends upon the

rituals and culture and the personal laws applicable on the parties to decide

whether the marriage was valid or not. For instance, in Naresh Chandra v.
 Reshma Bai, the court observed that a “marriage by an exchange of garlands

is invalid” since the parties were Hindu.

✓ Moreover, a second marriage solemnised in the subsistence of the first

marriage is invalid and the second wife cannot legally claim maintenance

under this provision. When a person claims that his second marriage is invalid

since it occurred without obtaining a decree of divorce from the first marriage,

the burden lies on him to prove that his first marriage is valid and second is,

therefore, invalid.

✓ The courts can, however, pass an order of maintenance in case of the second

marriage as well to prevent destitution leading to criminal conduct. In

Rameshchandra Daga v. Rameshwari Rameshchandra Daga, the apex court

held the second wife is entitled to maintenance under and averred that this

“decision holds good even in case of Section 125 maintenance”.

✓ The definition of “wife” has been expanded by the courts to meet the changing

paradigms of society. In a modern society where parties are involved in a live-

in relationship, several instances have been witnessed where on the promise

to marry, the man deceives the woman to live with him and maintain a

physical relationship. Now, in the case of live-in relationship, the parties live

like husband and wife and to the knowledge of the public (in most of the cases)

but are not legally married.

✓ Thus, this question arose before the Hon’ble Supreme Court in D. Velusamy

v. D. Patchaiammal and Chunmuniya v. Virender Kushwaha in 2010 and

2011 respectively. The court, in both cases, held that “a woman who was in a

marriage-like relationship, though not a legally wedded wife under Section

125 could claim maintenance under the Cr.P.C and the Protection against

Domestic Violence Act”.

✓ His Minor Child: The section also obliges every person to maintain his minor

child. The essential traits of this part of the provision can be enlisted as under:

• The child must be a minor. Explanation (a) to Section 125 (1) defines ‘minor’

as any person who qualifies the criteria laid down in the Indian Majority Act,

1875 to be referred to as a minor. Section 11 of the Act of 1875 requires a

person to be below the age of 18 years to be called a minor in the eyes of law.

• The child can be a male or a female. The only requirement is that it must be a

minor and not be able to maintain itself.

• The child can be legitimate or illegitimate; married or unmarried. A minor

married girl is entitled to maintenance from her husband and her father both

at once. However, if the father can prove that the husband is able to maintain

the minor girl he can avoid such maintenance, but if the husband is not able

to maintain the minor girl the father is bound to maintain her.

• The religion of the child is immaterial to decide maintenance under section

125. In Noor Saba khatoon v. Md. Quasim, the Apex court held that a person

cannot be absolved from his obligation to maintain his child only because of

his religion. A Muslim father similar to a Hindu father is responsible to pay

maintenance for his children under this provision of Cr.P.C.

• His Abnormal Child: The obligation of a father to maintain his minor child,

as mentioned above, is extended to a child who has attained the age of

majority if that child is “by reason of any physical or mental disability is

unable to maintain itself”. The child can be a male or female, legitimate or

illegitimate and married or unmarried. However, the father is not responsible

to maintain his married daughter if she has attained the age of majority

whether she is normal or abnormal. The responsibility to maintain a major

married girl is of the husband and no one else.

• His Father or Mother: With the change in time and societal needs, the

structure of the family changes too. As seen today, families are more nuclear

and children are not willing to take responsibility for their parents. This was

anticipated by the legislators and to ensure that children maintain their parents

and they do not become an offender or a victim of the certain offence, Section

125 includes parents to be maintained by their children. The provision uses

the term “his father or mother” which implies that the duty is bestowed upon
 the son to maintain his parents. However, the Kerala High Court, in Areefa

Beevi v. K.M. Sahib analysed the section and stated that “the expression his

father or mother must be taken as to have the meaning her father and mother

as well”.

• Now, the next most significant issue raised with respect to this provision is

whether the terms “father” and “mother” include “adoptive father or mother”

and “stepfather or stepmother”. According to Section 3 (20) of the General

Clauses Act, 1897, “father shall include an ‘adoptive father’”, but, however,

“mother” has not been defined to include the adoptive mother. In such a

situation, the Bombay High Court used its interpretative power and held that

“mother” shall include “adoptive mother” as well.

• Now, when it comes to stepmother or stepfather, the High Courts of Bombay,

and Gujarat have the same opinion. In Ramabai v. Dinesh and Havaben v.

Razakbhai, these courts observed that “having regard to the object and

intention of Section 125, the term “mother” will have its natural meaning and

will not include stepmother”. The Supreme Court, on the other hand, though

agreed with the conclusions of the High Courts, yet it further opined that “a

childless stepmother may claim maintenance from her stepson provided she

is a widow or her husband, if living, is also incapable of maintaining her”. The

 court further added that a stepmother also cannot claim maintenance if she has

her own natural-born sons or daughters.

• The provision is mandatory in nature and the person can approach a competent

Magistrate to deal with the issue. It is also very important to note that an earlier

maximum amount of maintenance allowed was Rs. 500/- in total which was

done away by the 2001 amendment and it is now at the discretion of the

Magistrate to decide the sum of compensation.

 Criminal Procedure Code, Section 125 - Limitation Act, 1963, Section 15

In Amarendra Kumar Paul v. Maya Paul, an order granting maintenance to

three minor children was passed by Magistrate in the year 1994.Revision against

the said order was filed by father . The order remained stayed during pendency

of revisions firstly before Sessions Court and thereafter by High Court. Revision

was dismissed by High Court in the year 2004. Thereafter, execution application

was filed in the year 2005. An objection was raised that children were not entitled

to maintenance as they had attained majority in the year 1997 before filing of

execution application. The Court held that contention was not tenable. Children

will be entitled to maintenance till the age of attaining majority and the daughter

till she was married.

Another issue before the Court in this case was whether the Execution

application not barred by limitation? In this case, an order granting

maintenance to children under Section 125 Cr .P.C was passed by Magistrate in

the year 1994. Limitation to execute the order is one year. However, revisions

were filed against the order by husband in higher courts. Therefore, the order

remained stayed during pendency of revisions. Revisions were dismissed in the

year 2004. Consequently, Execution application was filed in the year 2005. The

Court held that Execution application was not barred by limitation as under

Section 15 of Limitation Act period of one year would be computed excluding

the period during which order of Maintenance remained stayed.

 In the case of Shail Kumari Devi and Anr. Vs. Krishan Bhagwan, in which

the Hon’ble Supreme Court has not agreed to view that as a normal rule, the

Magistrate should grant maintenance only from the date of the order and not

from the date of the application for maintenance, and in case magistrate intents

to pass such an order, he is required to record reasons in support of such order.

The magistrate is not required to record special reasons, if he intends to order

maintenance from the date of application as there is nothing in Section 125

(2) which requires so. However, the magistrate must record reasons as

envisaged by Sub section (6) of Section 354 of the Code in support of the

order passed by him. Finally, the apex court held that while deciding an
 application under Section 125 of the code, a Magistrate is required to record

reasons for granting or refusing to grant maintenance to wives, children or

parents. Such maintenance can be awarded from the date of the order, or, if so

ordered, from the date of the application for maintenance, as the case may be.

For awarding maintenance from the date of the application, express order is

necessary. No special reasons, however, are required to be recorded by the

Court.”

Thus, from the aforesaid judgment of the Apex Court, the following point emerges:

(i) It is incorrect to say that as a normal rule, the Magistrate should grant maintenance

only from the date of the order and not from the date of the application for

maintenance, and in case magistrate intents to pass such an order, he is required to

record reasons in support of such order.

(ii) The Magistrate has the discretion to grant maintenance from the date of

application or date of order.

(iii) For awarding maintenance from the date of the application, express order is

necessary but no special reasons are required to be recorded by the Court.

  SECTION 126 CrPC PROVIDES FOR THE PROCEDURE,

JURISDICTION , MODE OF TAKING EVIDENCE AND GRANT OF

COSTS IN RESPECTOF PROCEEDINGS INITIATED UNDER

SECTION 125 CrPC.

(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 ease 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 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 willfully avoiding service, or

willfully 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 list 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.

 In Kumutham v. Kannappan, The Supreme Court had held that petition

under S. 125 Cr. P.C by the wife for maintenance for herself and her daughter

at the place of residence of the wife is maintainable. The Court has jurisdiction

to try the petition, it is immaterial that the husband is not residing in its

jurisdiction. The words “in any district ” do not mean in any Court in any

district where the husband resides. It means only a Court in the district within

whose jurisdiction the husband resides.

 For modification or alteration the wife is entitled to file application where she

resides. The word “resides” connotes some sort of permanent intention to stay

at a particular place and a mere casual visit to place other than the one where

a person has a fixed home, will not be sufficient. In the case of persons who

have a fixed residence a visit to another place for however long a period , so

long as it is casual, will not confer jurisdiction . Where , however the parties

have no home of any sort and are moving about from place to place, each

place where they so live would be their home for the time being; the sole test

being whether a party has animus manendi or an intention to stay for an

indefinite period , at one place , and if he has such an intention, then alone can

be said to reside there.

 Last resided - The term “resided” includes a temporary residence and is not

to be confined to permanent residence. However it implies something more

than a mere brief flying visit. Within three months from the date thereof [Sub

- section (2), Proviso]. There is difference of opinion as to whether the period

of three months runs from the date of the ex parte order or begins from the

date the aggrieved party had or ought to have knowledge thereof.

 SECTION 127 CrPC PROVIDES FOR ALTERATION OF

ALLOWANCE OF MAINTENANCE BY CHANGE OF

CIRCUMSTANCES OF THE PERSON RECEIVING OR PAYING

THE AMOUNT.

• The order can relate back to the date of filing of application. It can also

be cancelled if it is superseded by the decree of civil court.

• An order of maintenance in favour of a divorced wife shall be cancelled

from the date of re-marriage; on the date where she voluntarily

surrendered her right to maintenance; date on which she received full

amount from her husband payable under any customary law.

 SECTION 128 PROVIDES FOR THE PROVISION FOR

ENFORCEMENT OF ORDER OF MAINTENANCE.

• A copy of the order of maintenance or interim maintenance and expenses of

proceeding, as the case may be, shall be given without payment to the person

in whose favour it is made, or to his guardian, if any, or to his guardian, if any,

or to the person to [whom the allowance for the maintenance or the allowance

for the interim maintenance and expenses of proceeding, as the case may be,]

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, or as the case may be, expenses, due.

• Sentencing to jail is the means for achieving the end of enforcing the order by

recovering the amount of arrears. It is not a mode of discharging liability.

• In Chanmuniya vs Yirender Kumar Singh Kushwah (2010) Supreme Court

held that since the Protection of Women from Domestic Violence Act 2005

gives a very wide interpretation to the term ‘domestic relationship’ as to take

it outside the confines of marital relationship , and even includes ‘live in

relationship’ in the nature of marriage within the definition of ‘domestic

relationship’ under section 2(f) of the Act and monetary relief and

compensation can be awarded in cases of live in relationship under the Act of

2005, they should also be allowed in proceedings under section 125 of

Cr.P.C., as it seems the same is also confirmed by section 26 of the Act. The

Court believed that such an interpretation would be a just application to the

principles enshrined in the Preamble to our Constitution, namely, social

justice and upholding the dignity of an individual. In view of above the Court

requested the Hon’ble Chief Justice to refer the following amongst other

questions to be decided by a larger Bench.

 IMPORTANT CASES FOR PRELIMS UNDER THIS TOPIC

Nanak Chandra v. Chandra Provisions contained in Sections 125-

Kishore(1969) 128 are applicable to all persons

belonging to all religions and have no

relationship with personal law of the

parties.

Yamunabhai Anantrao(1988) and Supreme Court held that a wife, who

Savitaben v. State of Gujarat (2005) have been divorced by the husband on

the ground that the wife has deserted

him is entitled to claim maintenance

under Section 125 of the CrPC.

Dr. Swapan Kumar Banerjee v. State Deserted divorced wife entitled for

of West Bengal (2019) maintenance under Section 125 CrPC.

D. Velusamy v. D. Woman who is is arriage like

Patchaiammal(2010) relationship though not legally married

can claim maintenance. Not all live in

relationships will amount to relationship

in nature of marriage. A `relationship in

the nature of marriage' is akin to a

 common law marriage. Common law

marriages require that although not

being formally married :-

(a) The couple must hold themselves out

to society as being akin to spouses.

(b) They must be of legal age to marry.

(c) They must be otherwise qualified to

enter into a legal marriage, including

being unmarried.

(d) They must have voluntarily

cohabited and held themselves out to the

world as being akin to spouses for a

significant period of time

Vijay Manohar v. Kashi Rao Raja Daughter whether (married or not)

Ram(1987) would also be liable to pay

maintenance.

Chaturbhej v. Sita Bai(2008) The phrase "unable to maintain herself'

would mean that means available to the

deserted wife while she was living with

 her husband and would not take within

itself the efforts made by the wife after

desertion to survive somehow.

Kamala v. MR Mohan Kumar (2019) For fulfilling true spirit of beneficial

legislation of Section 125 CrPC strict

proof of marriage is not required. Long

cohabitation between woman and man

may lead to presumption of marriage

entitling maintenance for woman and

children born to them. This presumption

is a rebuttable

presumption.

Reema Salkan v. Sumeer Singh In deciding the quantum of maintenance

Salkan(2019) of wife under Section 125 CrPC the wife

is entitled in law to lead life in a similar

manner as he would have lived in house

with her husband. It is a statutory

obligation of husband to see that the

wife does not become destitute.

Mohd. Ahmed Khan v, Shah Bano Section 125 CrPC was applicable to all

Begum irrespective of their religion.

Sanivani RamChandra Kondalkar v. No right of maintence under S. 125

RamChandraBhimrao CrPC to a wife divorced on grounds of

Kondalkar(Bombay HC case) adultery.

KirtiKant D. Badauria v. State of Childless step mother also entitled for

Gujarat(1996) maintenance.

Dhaniram v. Ramdai Healthy body=Sufficient means