April 12, 2023

Maintainence under Section 125


One of the most often used and debated sections of the Code of Criminal Procedure is Section 125. According to this regulation, a person who has the means to support himself is not allowed to refuse support to his wife, children, or parents if they are unable to support themselves. Yet occasionally the spouses against whom the maintenance order is issued may not be content with the ruling made by the lower court; as a result, they should have a forum where they may air their complaints about the decision. As a result, they are entitled to use Section 397 of the Code to submit the revision application in a court of law. Due to growing knowledge and a better stance of the judiciary toward granting justice to these parties as well, the scope of revision applications has expanded recently. In accordance with Section 125 of the Code of Criminal Procedure, let’s examine the extent of the change that may be made to the order. It falls under Article 15 (3) as well, which is supported by Article 39. 

The Criminal Process Code’s Section 125 establishes the rules for the payment of maintenance to spouses, children, and parents. According to this provision, anybody with adequate resources is required to help his wife if she is unable to care for herself. This assistance is given in the form of “maintenance,” a predetermined sum decided by a court magistrate. The legitimacy of the maintenance claim and the decision of the ultimate amount granted are both determined using a range of factors. the weaker members of society.

The Detailed Meaning of Wife

A woman who has not remarried after a divorce is referred to be a wife.

The goal is to prevent dishonest husbands from obtaining quick divorces under personal law.

The case of Shah Bano.

As a result, backward legislation—The Muslim Women (Protection of Rights on Divorce) Act, 1986 S.C.—was passed to settle the Daniel Latifi V. UoI case debate about Muslim women’s rights.

The Wife must be a Woman Who is Legally Married

The personal law system determines whether marriage is legal.

When bigamy-related criminality occurs, the victim suffers while the offender escapes punishment.

The very goal is hampered by the formal marriage requirement.

Court rejects claim of ignorance of first marriage, emphasizing the importance of legislative purpose

The necessity to remove this requirement in a nation where most marriages can be considered unlawful for a variety of reasons.

the bias of the law in favor of marriage.

Section 125 CrPC’s applicability and scope

The wife, child, and parents are entitled to support under Section 125 of the Criminal Procedure Code. If a party invokes Section 125 of the Code, the court may order the respondent, that is, the husband, to support the wife who is unable to support herself by paying her monthly maintenance. The regulation does, however, include an exemption. For the purpose of giving maintenance to the wife, the husband must be able to maintain his wife after the separation, and the wife must not be living in adultery or living separately from her husband for whatever reason. The wife will not be entitled to any type of support even if they are living separately with mutual consent. When a decision is made in favor of the wife, the court must ensure that the husband has enough money to pay the wife’s support. The wife must not have enough money after the divorce to support herself, thus the court must make sure of this as well.

Characteristics of Section 125 CrPC

Several of the aspects that will be described here have previously been mentioned in the past when addressing the legal phrases that make up Section 125. As a result, readers will now be better able to comprehend the maintenance provision’s aspects. The CrPC’s Section 125 is constructed with the following characteristics.

the requirement for adequate maintenance resources

The most crucial stipulation is that unless the individual being ordered to pay maintenance has “sufficient resources to sustain” the person making the claim and neglects or refuses to do so, they cannot be forced to do so. The burden of proof is with the one who claims not to have the resources necessary to support himself. He is not exempt from the obligation since he is unemployed.

Neglect and reluctance to be kept

The phrase ‘neglect’ refers to a willful or inadvertent disdain for obligation, and it is used to refer to a failure to maintain even when no such demand is made upon the maintainer. The’refusal’ to maintain, on the other hand, arises when there is a clearly declared intention to not carry out his responsibilities. The husband’s behavior may reflect or even imply this purpose. The burden of proof is on the claimant. The necessity that the woman reside with her husband is originally required for her to be able to claim support, but if the Magistrate deems that she has a sufficient cause to do so, for example, she may be entitled to do so. The condition may be lifted from her claim if her husband has taken in a new wife and if it is ritually approved by their personal law. 

The extent of upkeep

The magistrate was required to award maintenance up to a maximum of Rs. 500 before the passage of the Amendment Act No. 50 of 2001. The Magistrate is allowed to choose the monthly rate in line with the facts of the case; there is no maximum amount set. The rate may from time to time be increased pursuant to Section 127, but such modification shall be stable, predictable, and not progressively increasing. It is illegal to compensate the wife and the kid jointly if they are both suing the same person; instead, each has a separate claim that can be compensated individually.

According to the ruling in Mohd. Ahmed Khan v. Shah Bano Begum, a Muslim husband with sufficient resources is required to support his divorced wife who is unable to support herself. Because the Muslim husband entered into a second marriage within the Quranic limit of four wives, she is still entitled to maintenance even if she chooses not to live with him.

The Supreme Court ruled that a Muslim divorced woman who is unable to support herself is entitled to maintenance from her former spouse until she remarries. They rejected the claim that maintenance is only due during the iddat period. The courts decided, using Quranic ayats, that the Quran imposes a responsibility to give maintenance to the divorced wife. 

Who May File a Maintenance Claim? The CrPC’s Section 125, 


According to Section 125(1), any woman who is unable to support herself, whether she is an adult or a child, is entitled to maintenance. The word “wife” under this clause includes a divorced woman who had not remarried, according to Explanation (b). Before the Shah Bano Begum ruling, a divorced wife had no right to maintenance, which significantly harmed women, especially those in the Muslim community.

Any of these marriages must be legal according to the law. Notwithstanding the sad circumstances, a woman who is in a relationship with a married man is not entitled to maintenance. This may seem unfair, but the Supreme Court ruled that the only way to correct this insufficiency is by legislative action.  As this part is intended to be an instrument for social justice and is consequently open to a wider interpretation, strict proof of marriage is not necessarily necessary. A man and woman living together as husband and wife for a reasonable amount of time may be considered under this section as a valid proof for married life and shall be treated as such for maintenance purposes, the Supreme Court decided after much back and forth between the High Courts and the Supreme Court on the matter. [9] If a husband gets remarried, even though the second marriage is legal in her eyes and she has given her agreement, the first wife still falls under the definition and is entitled to support. For the woman to argue for maintenance in this situation, there is no requirement for proof of neglect. 


According to Section 125 (1) of the Indian Majority Act of 1875, a child who is still a minor—that is, a person who has not turned 18 years old—can make a maintenance claim whether they are legitimate or illegitimate, married or single. In addition, in accordance with the Proviso in this section, the father of a minor girl is required to support her if her husband is unable to do so, For such a claim to be valid, the kid must already be alive; caring for a fetus while a mother is still pregnant is not covered by this clause. The father of such a kid still has a duty to provide for them, even if the child is in someone else’s care. According to this clause, paternity is the basis for determining a child’s maintenance. A kid whose parents are not legally married is nonetheless entitled to maintenance under the law, regardless of the legality or illegitimacy of the child. If paternity cannot be proven, the kid has no right to anything. [12] The child might have been adopted or born naturally. After reaching majority, a child, whether genuine or not, who is not a married daughter may make a claim for maintenance under Section 125(1)(c) if they have a physical or mental impairment and are unable to support themselves as a result. Under Section 125 CrPC, a major unmarried daughter who is neither ill or disabled cannot request maintenance. 


A mother or father who is unable to support herself may be eligible to make a claim for maintenance from their children under Section 125(1)(d). While the term “his” is used, it refers to both the parents’ male and female offspring. Indian culture places a societal obligation on children to support their parents, and daughters are no exception to this rule.

It is unclear whether or not stepfathers and mothers, as well as adoptive fathers and mothers, are included in the definitions of “father” and “mother.” In a ruling, the Bombay High Court ruled that although an adoptive father is considered a father under Section 3 (20) of the General Clauses Statutes, the term “mother” must be given its ordinary meaning and does not include a stepmother. A stepmother who has no children of her own and whose husband has passed away or, if he is still alive, is unable to support her can seek maintenance from her stepson, according to a later ruling by the Supreme Court that generously interpreted the clause. In subsection (4), the word “parent” is not used; this has been interpreted by the High Court of Andhra Pradesh in N. B. Bhikshu v. State of Andhra Pradesh to mean that only a legitimate child has the obligation to maintain their parent and, if there are multiple children, the parent may make a claim against any child for failing to fulfill this obligation. 

According to the second proviso of Section 125(1) of the Code of Criminal Procedure, the Magistrate may order that 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 that the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from the proceeds of the proceeding.


The right of the wife and the parents to receive an appropriate amount of maintenance from the husband or their children, respectively, is protected by Section 125 of the Code of Criminal Procedure, however this provision should not be abused. The scope of a revision against a Section 125 ruling has expanded in recent years, and higher courts are increasingly considering Section 397 revision applications to provide the opposing party the necessary reliefs. The facts and circumstances of a particular case will determine whether the court grants or rejects the revision application; there is no predetermined procedure that courts have been using. Occasionally the woman has the resources to support herself even after the separation. The Supreme Court has so far been fairly liberal and flexible in its interpretations, and the High Courts have made decisions in slightly different ways, but this only shows how cultural and societal factors differ from region to region and should be left to the judgment of the courts in such cases unless otherwise required.





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