1|Page
Dr. RAM MANOHAR LOHIYA NATIONAL LAW
UNIVERSITY, LUCKNOW
ACADEMIC SESSION:
2017 – 2018
PLEADING, DRAFTING AND CONVEYANCING
PROJECT
APPLICATION FOR MAINTENANCE OF WIFE UNDER SECTION 125
Submitted to: Submitted by:
Ms. Shakuntala Sangam Animesh Tiwari
Asst. Professor (Law) B.A.LL.B.(Hons.)
RMLNLU VI semester
Roll No. 155
2|Page
ACKNOWLEDGEMENT
I would take great pleasure in thanking my professor, Ms. Shakuntala Sangam, for
her infallible support all through the course of this project. This endeavour would
not have been in its present shape had she not been there whenever I needed her.
She has been a constant source of support all the while.
Also I would like to extend my sincere thanks to the library staff for always
helping me out with finding excellent books and material almost every time I
needed. They too have been a constant support system in the completion of this
project.
Last but surely not the least- I would like to thank my friends for their timely
critical analysis of my work and special feedback that worked towards the
betterment of this work.
3|Page
TABLE OF CONTENTS
INTRODUCTION.............................................................................................................4
SECTION 125 OF CrPC.................................................................................................4-6
ESSENTIAL CONDITIONS FOR CLAIMING
MAINTENANCE...........................................................................................................6-9
The person from whom maintenance is claimed must have sufficient means to
maintain the person or persons claiming maintenance
Neglect or refusal to maintain
The person claiming maintenance must be unable to maintain himself or
herself
When the maintenance is claimed by wife from her husband
FACTS.................................................................................................................................9
DRAFTING APPLICATION UNDER SECTION 125 CrPC,
1973….…..………………………...............................................................................10-12
CONCLUSION..................................................................................................................13
BIBLIOGRAPHY.............................................................................................................14
WEB RESOURCES..........................................................................................................14
4|Page
INTRODUCTION:
The ancient Hindu law enjoined that maintenance of certain relations is a personal obligation.
This continued to be the position under the Raj and this continues to be the position in free India.
Manu declared:
“The aged parents, a virtuous wife and an infant child must be maintained even by doing
hundred misdeeds.”1
Maintenance can be claimed under the respective personal laws of people following different
faiths and proceedings under such personal laws are civil in nature. Proceedings initiated under
Section 125 however, are criminal proceedings and, unlike the personal laws, are of a summary
nature and apply to everyone regardless of caste, creed or religion.2 The object of such
proceedings however, is not to punish a person for his past neglect. The said provision has been
enacted to prevent vagrancy by compelling those who can provide support to those who are
unable to support themselves and have a moral claim to support.3 Maintenance can be claimed
either at the interim stage, i.e., during the pendency of proceedings, or the final stage.
SECTION 125 OF CrPC:
Section 125 of the code of criminal procedure 1973, runs as follows:
125(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 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 the maintenance of his wife or such child, father or mother, at
1
Diwan Paras, Law of maintenance in India, Deep & Deep Publications, New Delhi, 1990.
5|Page
such monthly rate 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 of such minor female child, if married, is not possessed of sufficient means:
Provided further that the magistrate may, during the pendency of the proceeding regarding
monthly allowance for the maintenance under the 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.
(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 maintenance or 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 refused to live with him, such magistrate may consider any grounds of refusal
6|Page
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 for his wife’s refusal to live with him.
(4) no wife shall be entitled to receive an allowance for maintenance or the interim maintenance
and expenses of proceedings 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 with mutual consent.
(5) On proof that any wife in whose favour 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.
ESSENTIAL CONDITIONS FOR GRANTING MAINTENANCE
The analysis of section 125, CrPC brings out the following points:
(1) The person from whom maintenance is claimed must have sufficient means to
maintain the person or persons claiming maintenance:
The “means” contemplated in section 125(1) are not confined only to visible means such as lands
and other property or employment. If a person is healthy and able-bodied he must be held to have
means to support his wife, children and parents.2 The courts have gone to the extent of laying
down that the husband may be insolvent or a professional beggar or a minor or a monk, but he
must support his wife so long as he is able-bodied and can eke out his livelihood.3
(2) Neglect or refusal to maintain:
The person from whom maintenance is claimed must have neglected or refused to maintain the
person or persons entitled to claim maintenance. Neglect or refusal to maintain may be by words
or by conduct. It may be express or implied. Burden of proving is on the claimant.4 Ordinarily
2
In Re Kandasamy Chetty [(1929) 27 CrLJ 350]
3
Basanta Kumari v. Sarat Kumar [1982 CrLJ 485 (Ori)]
4
Dasarathi Ghosh v. Anuradha Ghosh [1988 CrLJ LJ 64 (Cal)]
7|Page
“neglect or refusal” may mean something more than mere failure or omission. But where there is
a duty to maintain, mere “Failure of commission” may amount to neglect or refusal in the
circumstances of the case. For example, mere failure to maintain a child who has no will or
volition of its own is “neglect or refusal” to maintain the child. 5 A husband who makes it
difficult for the wife to live with him and who fails to maintain her when she lives elsewhere
“neglects and refuses” to maintain the wife. A husband cannot expect any self-respecting wife, in
keeping with modern ideas, to share the conjugal home with a mistress or another wife. Thus, the
offer of a husband who has taken a second wife, to maintain the first wife on condition of her
living with him cannot be considered to be a bona fide offer and the husband will be considered
to have neglected or refused to maintain the first wife.6
If a second, third or even fourth marriage is permitted in Mohammedan law, a Mohammedan
male may indulge in that luxury. at the most he may not be liable for offence of bigamy.
However a Mohammedan wife would surely be entitled to live separately and claim maintenance
solely on the ground that the very idea of contracting a second marriage by her husband is
abhorrent to her mind and therefore the second marriage by her husband causes her mental agony
and cruelty. In such a situation husband cannot take shelter under his personal law and claim
immunity from paying the maintenance to his wife.7
(3) The person claiming maintenance must be unable to maintain himself or herself:
Under section 125(1)(a) maintenance allowance cannot be granted to every wife who is
neglected by her husband or whose husband refuses to maintain her, but can be granted only if
the wife is hale and healthy and is adequately educated to earn for herself but refuses to earn and
claims maintenance from her husband, it has been held that she is entitled to claim maintenance
but that her refusal to earn under the circumstances would disentitle her to get full amount of
maintenance.8 The words “unable to maintain” only connote absence of means or source to
maintain herself. They have nothing to do with her potential earning capacity. 9
5
Chand Begum v. Haiderbaig [1972 CrLJ 1270]
6
ibid
7
Banabibi v. Sikandarkhan Umarkhan [1983 CrLJ 1382]
8
Abdulmunaf v. Salima [1979 CrLJ 172 (Kant)]
9
Vimal v. Sukumar Anna [1981 CrLJ 210 (Bom)]
8|Page
(4) Maintenance is claimed by wife from her husband;
a. She must not be living in adultery:
The words “living in adultery” have been almost uniformly interpreted as indicating an
adulterous course of life as distinguished from a single lapse of virtue.10 A single act of adultery
would not be enough to disentitle the wife to maintenance. Because, hardships are bound to arise
if the wife is totally debarred from the remedy under section 125 due to a single lapse from
virtue. Further, making this provision it must have been thought that, to deprive her of
maintenance for an occasional lapse might force her to lead a sinful life and would give her no
chance to redeem herself. The words “living in adultery” have now been consistently held to
mean an outright adulterous conduct where the wife lives in a quasi-permanent union with the
man with whom she is committing adultery. It would be wrong to consider mere friendship as
amounting to adultery within the meaning of section 125(4).
b. She must not refuse without just ground to live with her husband:
The husband contracting a second marriage is in itself a just ground for the wife’s refusal to live
with him as provided under section 125(3). This sub section (4) only provides that she would not
be entitled to any maintenance if she refused to live with her husband without any sufficient
reason11. What could be considered as a sufficient reason for the wife’s refusal to live wither
husband would depend upon the facts and circumstances of each case.
c. She must not be living separately by mutual consent:
A divorced wife cannot be characterised as a wife living separately by mutual consent. She is a
person who lives separately from her former husband by virtue of change in status consequent
upon the dissolution of the marriage.12 It has also been held that in case of a divorce by mutual
consent if the wife had relinquished her right to maintenance she cannot later claim
maintenance.13A clear and categorical finding, if given by the competent civil court, cannot be
10
Gopaldeo v. Ratni [(1929) 30 CrLJ 403]
11 P. Ramanatha Aiyar, Code of Criminal Procedure, Justice J.K. Mathur Ed., Vol.2, 7th Edn., Modern
Publishers (India), Lucknow, 2000.
12
Ravindran Nair v. Sakunthala Amma [1978 CrLJ 1049 (Ker)
13
N.D. Basu, The Code of Criminal Procedure, S.K. Bose Ed., Vol.1, 9th Edn., Ashoka Law House, New
Delhi, 2001.
9|Page
overlooked or ignored or disregarded by the criminal court.14 However, it has been held that
merely because the civil court comes to hold while directing divorce that the wife is not entitled
to maintenance, it would not deprive her of her right to claim maintenance in a criminal court
though the criminal court though the criminal court is required to consider the civil court’s
decision.
FACTS:
The petitioner Smt. Anita Sahay (the petitioner) was tied in the knots of holy matrimony
in the year 2013, May 25th, at Lucknow to Shri. Sumit Sahay, (the respondent) in front of
friends and family.
Everything was fine for the first few months, then the respondent started showing his true
colours.
The respondent has been very abusive towards the petitioner frequently and has inflicted
physical injury as well as mental trauma on the petitioner.
The respondent is a man of illicit behaviour and a drunkard. By the virtue of his
drunkenness he has insulted the petitioner in front of outsiders on many occasions.
On the morning of 6th October 2013, the respondent fiercely attacked the petitioner and
drove her out of the matrimonial house in front of neighbours and passersby.
Feeling humiliated, the petitioner left the matrimonial house and having nowhere to go,
went to live with her parents.
Ever since the petitioner has been living and being maintained by her parents, with the
respondent never once having asked the whereabouts of the petitioner.
14
ibid
10 | P a g e
APPLICATION UNDER SECTION 125, CRIMINAL PROCEDURE CODE,1973
IN THE COURT OF CHIEF METROPOLITAN MAGISTRATE/CHIEF
JUDICIAL MAGISTARTE
APPLICATION NO: 13466/2015
UNDER SECTION: 125, CrPC
POLICE STATION: Ashiyana, L.D.A.
Smt. Anita Sahay Petitioner
Versus
Shri. Sumit Sahay Respondent
APPLICATION UNDER SECTION 125, CODE OF CRIMINAL
PROCEDURE 1973
Sir,
The petitioner above named most respectfully submits as under:
1. That the marriage of the petitioner with respondent was solemnized on 25th May 2013 at
Lucknow as per Hindu rites and ceremonies.
2. That the respondent has been leading a life of drunkenness and habitual lewdness. He is
besides a man of uncertain temperament and become enraged season and out of season
without any reason whatever. He has lost all sense of decorum and uses abusive
language.
3. The respondent strongly attacked the petitioner on several occasions and drove her away
from the matrimonial house on 6th October 2013 before various people of the locality.
11 | P a g e
4. Thus the petitioner had not lived in the matrimonial home even for six months peacefully
after the marriage when the petitioner was subjected to this misery at the hands of the
respondent and since then the petitioner is living with her parents and is being maintained
by them, although in law they are not bound to maintain the petitioner.
5. That since the said date, the respondent has neglected the petitioner and has not arranged
anything for the maintenance of the petitioner and the petitioner is on the verge of
vagrancy as her parents are not very well off and have no sufficient means to maintain the
petitioner.
6. That the petitioner has no other alternative but to live separately from the respondent and
his parents as the respondent perpetrated cruelty on the petitioner and she was thrown out
from the matrimonial home without any cause or justification.
7. That under the law, the respondent is liable to maintain the petitioner as the petitioner is
the wife of the respondent and has been neglected by the respondent.
8. That the respondent is a man of means and is earning a salary of about Rs. 15,000 per
month along with lot of perquisites and the savings from the perquisites is also about Rs.
5,000 per month.
9. That the respondent owns immovable property and also has lot of savings in the bank
from which he has interest income.
10. That the respondent has also invested in shares of various companies from which he is
earning dividend income and the total income of the respondent is more than Rs. 25,000
per month.
11. That under the circumstances, the respondent is to be directed to pay at least Rs. 5,000
per month as maintenance to the petitioner which is bare minimum for the maintenance
of the petitioner.
12. That the respondent has no other liability except to maintain the petitioner as his parents
are independent and are not dependent upon the respondent.
It is, therefore, prayed that an order may be passed in favour of the petitioner and against the
respondent for payment of Rs. 5,000 as maintenance.
12 | P a g e
Petitioner
Through
Counsel
Place: Lucknow
Date: 27th January 2016
13 | P a g e
CONCLUSION:
Therefore after the completion of this project we are in a position to understand the
concept of maintenance under the Code of Criminal Procedure, 1973 and draft the
application for the same.
The application under section 125, CrPC for maintenance can be filed in the court at the place
where the applicant resides and can also be filed where respondent resides. Fixed court fees is
to be affixed on the application.15 Where a person having sufficient means refuses or neglects
to maintain the persons eligible as above: A Magistrate of the First Class may, upon proof order
such person to pay a monthly allowance at the rate not exceeding RS. 500 on the whole.
It is evident from the recent judicial decisions that the Indian courts have been progressively
liberal in deciding cases pertaining to maintenance. The bone of contention however is whether
a mistress can become entitled to receive maintenance merely from the factum of living with a
married man, coupled with the dispute as to whether the bigamy is legally permissible. While it
appears from the decisions passed under the personal laws that the same may be possible,
judicial decisions pertaining to Section 125 continue to uphold the view that maintenance can
be claimed only by a lawfully wedded wife.
15
Agarwal, SP, Pleadings An Essential Guide, 2nd edition, pg- 323, Lexis Nexis, Haryana.
14 | P a g e
BIBLIOGRAPHY:
Agarwal, SP, Pleadings An Essential Guide, 2nd edition, Lexis Nexis, Haryana.
Kolhatkar, Medha, Drafting, Pleading and Conveyancing, Lexis Nexis, Haryana.
N.D. Basu, The Code of Criminal Procedure, S.K. Bose Ed., Vol.1, 9th Edn., Ashoka
Law House, New Delhi, 2001.
P. Ramanatha Aiyar, Code of Criminal Procedure, Justice J.K. Mathur Ed., Vol.2, 7th
Edn., Modern Publishers (India), Lucknow, 2000.
R.V. Kelkar’s Criminal Procedure, K.N. Chandrasekharan Pillai Ed., 4th Edn., Eastern
Book Co., Lucknow, 2001.
Ratanlal and Dhirajlal’s The Code of Criminal Procedure, Justice Y.V. Chandrachud Ed.,
15th Edn., Wadhwa and Co., Nagpur, 1997.
WEB RESOURCES:
http://www.legalserviceindia.com/article/Extra-marital-Relations-and-its-Impact-on-
children.html
http://devgan.in/criminal_procedure_code/chapter_09.php#s125
http://vyasa-kaaranam-ketkadey.blogspot.in/2011/12/maintenance-of-parents-sec-125-of-
crpc.html
