Section 125 CrPC / Section 144 BNSS — Maintenance of Wives, Children, and Parents

Section Text

Section 125 of the Code of Criminal Procedure, 1973 (now Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023) provides that if any person having sufficient means neglects or refuses to maintain his wife (unable to maintain herself), his legitimate or illegitimate minor child (whether married or not, unable to maintain itself), his legitimate or illegitimate child (not being a married daughter) who has attained majority but is unable to maintain itself by reason of physical or mental abnormality or injury, or 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 maintenance at such rate as the Magistrate thinks fit.

Plain Language Explanation

Section 125 CrPC is one of the most significant social welfare provisions in Indian criminal law. In simple terms, it compels a person who has the financial means to provide monthly maintenance to family members who cannot support themselves.

This section is not about punishing anyone for a crime. Rather, it serves a humanitarian purpose — preventing destitution and vagrancy among dependent family members. It applies regardless of the personal law governing the parties, making it a secular remedy available to persons of all religions and backgrounds.

The provision recognises four categories of dependants who can claim maintenance: (1) a wife who is unable to maintain herself, (2) a legitimate or illegitimate minor child unable to maintain itself, (3) a major child unable to maintain itself due to physical or mental abnormality, and (4) a father or mother unable to maintain themselves.

A Magistrate of the first class has the jurisdiction to entertain such applications and pass orders for monthly maintenance. The proceedings are summary in nature, meaning they are designed to be decided quickly without the elaborate procedure of a regular trial.

Under the BNSS, Section 144 largely retains the same framework but includes certain procedural refinements. The essential rights and obligations remain substantially unchanged.

Key Elements

**1. Who Can Claim Maintenance**

- **Wife**: Includes a woman who has been divorced or who has obtained a divorce. However, a wife living in adultery, or one who refuses to live with her husband without sufficient reason, or who lives separately by mutual consent, is not entitled.

- **Minor Children**: Both legitimate and illegitimate children, whether married or not, who are unable to maintain themselves. The father's obligation towards minor children is primary.

- **Major Children with Disability**: Legitimate or illegitimate children who have attained majority but cannot maintain themselves due to physical or mental abnormality or injury. A married daughter who has attained majority is excluded.

- **Parents**: Father and mother who are unable to maintain themselves. This was a significant addition reflecting societal values of filial obligation.

**2. Sufficient Means of the Respondent**

The applicant must demonstrate that the respondent has sufficient means. This does not require the respondent to be wealthy — it means the respondent has the financial capacity to provide maintenance beyond meeting his or her own basic needs.

**3. Neglect or Refusal to Maintain**

There must be evidence that the respondent has neglected or refused to maintain the claimant despite having the means to do so.

**4. Inability to Maintain Oneself**

The claimant (wife, child, or parent) must be unable to maintain himself or herself. This is assessed based on the claimant's own income, assets, and earning capacity.

**5. Quantum of Maintenance**

The Magistrate determines the monthly allowance based on the standard of living the claimant is accustomed to, the income and assets of the respondent, and the reasonable needs of the claimant. There is no fixed formula, and the amount is at the discretion of the court.

Practical Application

**Filing the Application**: An application under Section 125 CrPC is filed before the Magistrate of the first class in the area where the claimant resides, or where the respondent resides, or where the respondent last resided with the claimant. Under the BNSS, the provision continues to allow filing at the place of residence of either party.

**Interim Maintenance**: Courts frequently grant interim maintenance during the pendency of proceedings so that the claimant does not suffer hardship during the time it takes to decide the case.

**Enforcement**: If the respondent fails to comply with a maintenance order without sufficient cause, the Magistrate may issue a warrant for levying the amount due. Continued default can lead to imprisonment for a term that may extend to one month or until payment is made, whichever is earlier. For each subsequent breach, imprisonment may extend to one month.

**Alteration of Maintenance Orders**: Under Section 127 CrPC (Section 145 BNSS), the Magistrate may alter, modify, or cancel a maintenance order if there is a change in circumstances of either party.

**Applicability Across Religions**: Section 125 CrPC is a secular provision. It applies to persons of all faiths, including Muslims. The Supreme Court in *Mohd. Ahmed Khan v. Shah Bano Begum* (1985) held that Section 125 applies to Muslim women as well, regardless of personal law provisions.

Important Judgments

**1. Mohd. Ahmed Khan v. Shah Bano Begum (1985) 2 SCC 556**

The Supreme Court held that Section 125 CrPC applies to all citizens irrespective of religion. A Muslim husband is liable to pay maintenance to his divorced wife if she is unable to maintain herself. This landmark judgment affirmed the secular character of the provision.

**2. Rajnesh v. Neha (2021) 2 SCC 324**

The Supreme Court laid down comprehensive guidelines for maintenance cases, including the requirement of filing affidavits of disclosure of income and assets, criteria for determining quantum, and the principle of overlapping jurisdiction between Section 125 CrPC and other matrimonial statutes.

**3. Chaturbhuj v. Sita Bai (1999) 4 SCC 49**

The Court clarified that the expression "wife" under Section 125 includes a woman whose marriage is void or voidable, provided she has not remarried. The provision is meant to prevent vagrancy and destitution.

**4. Nanak Chand v. Chandra Kishore Aggarwal (1970) 1 SCC 565**

The Supreme Court held that proceedings under Section 125 are summary in nature and not meant to determine complex questions of title or status conclusively.

**5. Kirtikant D. Vadodaria v. State of Gujarat (1996) 4 SCC 479**

The Court held that parents, including those with earning sons, are entitled to maintenance if they are unable to maintain themselves. The provision was intended to give social justice to the disadvantaged.

Frequently Asked Questions

Can a Muslim woman claim maintenance under Section 125 CrPC?

Yes. Section 125 CrPC is a secular provision that applies to all women regardless of their religion. The Supreme Court confirmed this in the Shah Bano case (1985). However, following the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986, Muslim women also have a parallel remedy. The Supreme Court in *Danial Latifi v. Union of India* (2001) upheld the 1986 Act but interpreted it to ensure that a Muslim divorced woman is entitled to a reasonable and fair provision and maintenance, which can extend beyond the iddat period.

What is the maximum amount of maintenance that can be awarded under Section 125?

There is no statutory ceiling on the amount of maintenance that can be awarded under Section 125 CrPC. The quantum is determined by the Magistrate based on the financial status of the respondent, the needs of the claimant, and the standard of living the claimant was accustomed to. Courts consider the totality of circumstances, including the income and assets of both parties.

Can a wife who is employed claim maintenance under Section 125?

A wife who is employed can still claim maintenance if her income is insufficient to maintain herself in the standard of living she was accustomed to during the marriage. The court will consider her earnings while determining the quantum but employment alone does not disentitle her from claiming maintenance. The key test is whether she is "unable to maintain herself" in relation to the standard of living she is entitled to expect.

What happens if the husband does not pay the maintenance ordered by the court?

If the respondent fails to pay maintenance without sufficient cause, the Magistrate may issue a warrant for levying the amount. If the respondent continues to default, the Magistrate may sentence the respondent to imprisonment for a term that may extend to one month for each breach, or until payment is made, whichever is earlier. Additionally, the claimant can also seek execution of the maintenance order as an arrear of land revenue in certain jurisdictions.

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*This content is for educational and informational purposes only and does not constitute legal advice. For guidance on specific situations, consulting a qualified legal professional is recommended.*