2. Concept of Maintenance:
◦ Although Criminal Procedure Code is a procedural enactment, but it also confers
some substantive rights, the right of maintenance being one of the most important of
such rights.
◦ Legal provisions regarding Order for maintenance of wives and children are
mentioned under Chapter IX, Section 125 to 128 of the Code of Criminal Procedure,
1973.
◦ Section l25 of the Code gives effect to the natural and fundamental duty of a man to
maintain his wife, children and parents so long as they are unable to maintain
themselves. This provision is a measure for social justice and specially enacted to
protect women and children.
3. Object and Scope:
◦ The proceedings under these sections are not punitive in nature.
◦ The object is not to punish a person for neglect to maintain those whom he is bound to maintain but to
prevent vagrancy by enforcing liability by way of summary procedure to provide a speedy remedy to those
who are in distress.
◦ This is a secular provision as it does not make any distinction between persons belonging to different
religions or castes and it has no relationship with personal laws of the parties.
◦ In Mohd Ahmed Khan v. Shah Bano Begum(1985 2 SCC 556), the SC held that the provisions of section
125 applies to all. The rights of a destitute wife or a minor claiming maintenance in this chapter and the
remedies provided are essentially civil right.
4. Person Entitled To Get Maintenance (Section 125):
Under section 125, Any person who by sufficient means neglects or refuses to maintain are the persons entitled for maintenance. They are:
1.Wife who is unable to maintain herself,
2.Married or not, minor child who is legitimate or illegitimate,
3.Child who by reason of any physical or mental abnormality is unable to maintain itself, legitimate or not,
4. Father or mother unable to maintain themselves
Interim maintenance:
As per second proviso to Section 125(1) of the Code of Criminal Procedure, during the pendency of the proceeding regarding monthly
allowance for the maintenance under Section 125(1) of the Code, 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. Remedies for Maintenance Order:
◦ If an order is made under section 125 of the following two remedies available for the enforcement of such an order
1. A warrant can be issued under section 421 of the Code of Criminal Procedure.
2. The defaulter can be sentenced for the whole or any part of each month allowance remaining unpaid to imprisonment for a term
extending up to one month or until payment whichever is earlier.
Remedies against Maintenance Order:
◦ As regards to the remedies against an order passed in the section 125 the following Points may be noted:
1. A magistrate cannot preview A final order made by him under section 125 even if he finds that he has committed any error he must submit the
proceedings to the sessions judge or to the high court for rectification.
2. Revision proceedings can be filed before the high court or sessions judge under sections 399 and 401 of the code. However, when a magistrate has
carefully considered the evidence placed before him it would not be proper for the high court to alter his findings and less it can be shown that he has
made a grievous error in estimating the evidence.
3. If a maintenance order is made without reference to the means of the husband, he can apply under section 127 of the code for reduction of
allowances.
6. Sec. 126- Proceedings u/s 125
Section 126 of the code provides that the proceedings of maintenance in compliance to Section 125 may be taken in the District where:
1. The husband resides,
2. Where the husband and his wife reside, or
3. Where the husband resided last with his wife, or with the mother of the illegitimate child as the case may be.
◦ This section provides for the jurisdiction as to where the proceedings may be initiated for a suit u/s 125 of the code.
◦ All evidence in such proceedings shall be taken in the presence of the husband father mother or Child or if his personal attendance
is dispensed with in the presence of pleader or as the case may be.
◦ If the magistrate is satisfied that the respondent is willfully avoiding service or is willfully neglecting to attend the court the magistrate
may here and determine the case as ex Parte.
7. Sec. 127- Alteration of Allowances
◦ Section 127 provides that upon proof of any sort of change in the circumstances of the person at the receiving or paying the monthly
allowance the magistrate may make any alteration in the allowance as he may deem fit upon as the case may be.
◦ The phrase change in circumstances appearing under section 127 does not refer to a temporary or accidental change in just one
circumstance such as a person salary but change in all circumstances connected with the condition of the person concerned.
Expression ordinary implies a change in the material circumstances of the person his property or otherwise an increase or decrease
of its liabilities and so on.
◦ The change in circumstances must be actual and of such a nature that the law should recognise it. Hence the growth of the child or
the birth of another child on the death of a child would amount to change in the circumstances. The rise in the cost of living would
also amount to change in circumstances.
8. ◦ If Magistrate feels that any order made by him should cancelled or also varied, then he cancels it. Its only cancelled if it seems
effecting any decision of civil court.
◦ Any order made under section 125 in favor of a woman, the Magistrate cancels the order , if he satisfied that-
1. the woman has, after the date of such divorce, remarried, cancel such order as from the date of her remarriage;
2. the woman divorced by her husband. She has received, before or after the date of order, the whole of the sum was payable on such
divorce, cancel such order-
a. in the case where such sum paid before order
b. in any other case, from the date of expiry of the period, for which maintenance has been actually paid by
the husband to the woman;
3. the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights. [maintenance as interim
maintenance, as the case may be after her divorce, cancel the order from the date thereof.
9. Sec. 128- Enforcement of Maintenance Order:
◦ A copy of the order of maintenance or interim maintenance and also expenses of proceeding given to a person on whom order
passed. 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.
◦ An order of maintenance passed by a magistrate in proceedings under section 125, before establishment of family courts was held
to be executable by a Family Court, as no Magistrate within the jurisdiction of the family court can exercise any jurisdiction under
Chapter IX of the Code of Criminal Procedure after establishment of Family Courts.
