Section 125.

Order for maintenance of wives, children, and parents.-

(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 and 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 [i][***], 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 or such minor female child, if married, is not possessed of sufficient means.

[ii][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:

Provided also that an application for the monthly allowance for the interim maintenance and expenses for 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 purpose of this chapter.-

(a) “Minor” means a person who, under the provisions of the Indian Majority Act, of 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;

[iii][(2) Any such allowance for the maintenance or interim maintenance and expenses for 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 part of each month’s [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] 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.

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

NOTE: From the above it is quite clear that under Section 125 Cr.PC a wife has to prove that the husband has sufficient means and he has neglected or refused to maintain her. It is also the object of the law that wife would not be entitled to receive maintenance if without any sufficient reasons she refuses to live with her husband and if they are living separately by mutual consent.

In Savitaben's case (supra) the Apex Court followed its decision in Yamunabai's case AIR 1988 S.C. in every respect.

"the position in law stands presently there is no escape from the conclusion that the expression 'wife' as per Section 125 of the Code refers to only legally married wife."

STATE AMENDMENT

UTTAR PRADESH-(a) In section 125, in sub-section (1),for the words "five hundred rupees ' the words "five thousand rupees" shall be substiuted;

(b) after sub-section (5), the following sub-section shall be inserted, namely:-

"(6) Where in a proceeding under this section it appears to the Magistrate that the person claiming maintenanse is in need of immediate relief for his support and the necessary expenses of the proceeding, the Magistrate may, on his application, order the person against whom the maintenance is claimed, to pay to the person claiming the maintenance , during the pendency of the proceeding such monthly allowance not exceeding five thousand rupees and such expenses of the proceeding as the Magistrate consider reasonable and such order shall be enforceable as an order of maintenance."

[U.P. Act No. 36 2000, w,e,f, 13-8-2001,]

MADHYA PRADESH.- In sub-s. (1) of s.125 of the Principal Act for the words "five hundred rupees" the words "three thousand rupees" shall be substituted. [M.P. Act No. 10 of 1998, w,e,f, 30.5.1998].

Criminal Procedure Code, 1973.

Procedure

Section 126 criminal procedure code , 1973 provides.-

(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 in 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 summon cases:

Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed 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 cost 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.

Alteration in allowance

Section 127 Criminal Procedure Code, 1973, provides

(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 or mother, as the case may be, the Magistrate may make such alteration in the allowance as he thinks fit :

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

(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 favor of a women whom has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that-

(a) the women has, after the date of such divorce, remarried , cancel such order as from the date of her remarriage;

(b)the women 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 the divorce, cancel the order from the date thereof.

(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 too, or recovered by, such person as monthly allowance in pursuance of the said order.

Enforcement of order of maintenance.-

Section 128 Criminal Procedure Code, 1973, provides

A copy of the order of maintenance shall be given without payment to the person in whose favor 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.

[i] The word “not exceeding five hundred rupees in the whole,” omitted by Cr.P.C. (Amendment) Act , 2001 (50 of 2001), S..2(i-a).

[ii] Provisos inserted by Cr.P.C. (Amendment)Act, 2001 (50 of 2001), S..2(i-b).

[iii] Substituted by Cr.P.C. (Amendment) Act, 2001 (50 of 2001) , S..2 (ii), prior to substitution sub section (2)read as: “(2) such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance.”

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