INTRODUCTION

 The word ‘Maintenance’ is not defined in the Code of Criminal Procedure, 1973. Chapter IX
of the Code of Criminal Procedure deals with provisions for maintenance of wives, children
and parents. ‘Maintenance’ in general meaning is keeping something in good condition.
‘Maintenance’ in legal meaning is money (alimony) that someone must pay regularly to a
former wife, husband or partner, especially when they have had children together. It is the
duty of every person to maintain his wife, children and aged parents, who are not able to
live on their own.
WHO CAN CLAIM AND GET MAINTENANCE?

Section 125 of Cr.PC deals with “Order for maintenance of wives, children and parents”.
According to Section 125(1), the following persons can claim and get maintenance:

Wife from his husband,

Legitimate or illegitimate minor child from his father,
Legitimate or illegitimate minor child (physical or mental abnormality) from his father, and
 Father or mother from his son or daughter.
Wife
 In the case of Chanmuniya v Virendra Singh, Supreme Court has defined ‘Wife’ and it
includes even those cases where a man and woman have been living together as husband
and wife for a reasonably long period of time. Strict proof of marriage should not be a
precondition of maintenance under Section 125 of the Cr.PC.
A wife can claim and get maintenance from her husband in the following conditions:

She is divorced by her husband, or

Obtained divorce from her husband, and
She has not remarried, and
She is not able to maintain herself.
Note: Muslim wife can also claim maintenance under Cr.PC though they have a separate Act (Muslim
Women Protection of rights on Marriage Act) for them.

 A wife
Legitimate or illegitimate minor child
Son
‘Minor’ means a person who, under the provisions of Section 3 of the Indian Majority Act, 1875 is deemed not to
have attained his majority i.e., above the age of 18 years.

Minor Son (Legitimate or Illegitimate) is entitled to get maintenance under Section 125 of Cr.PC.

Daughter
 If Minor Daughter (Legitimate or Illegitimate) is unmarried, then she is entitled to get maintenance from her
father and if she is married, then she is also entitled to get maintenance from his father but the magistrate
has to be satisfied that her husband has not essential and sufficient means for the maintenance of his minor
wife
Father or mother
Natural father and mother can claim maintenance.
Mother includes adoptive mother, she can claim maintenance from adoptive son.
Father can claim maintenance, it is a statutory obligation, this claim cannot be defeated by
pleading that the father failed to fulfil his parental obligation.
A childless stepmother can claim maintenance.
 In the case of Pandurang Bhaurao Dabhade v Baburao Bhaurao Dabhade, Bombay High
Court has held that the father or mother can claim maintenance under Section 125(1)(d) if
he or she is unable to maintain himself or herself. But it is also important that if parents
claim maintenance to their children, children must have sufficient means to maintain their
parents and yet neglects or refuses to maintain the father or mother
Essential conditions for granting maintenance
There are some essential conditions which should be fulfilled for claiming and granting
maintenance:

Sufficient means for maintenance are available.

Neglect or refusal to maintain after the demand for maintenance.
The person claiming maintenance must be unable to maintain himself/herself.
 Quantum of maintenance depends on the standard of living.
Jurisdiction of Magistrates to deal with maintenance proceedings
According to Section 125(1)(d), If any person neglects or refuses to maintain his wife, children
or parents, then a Magistrate of the First Class can order such person to make a monthly
allowance for the maintenance of his wife, children or parents, at such monthly rate as such
Magistrate thinks fit, and to pay the same to such person as the direction of magistrate.

 If a minor female child is unmarried, then the magistrate can order to make such
allowance, until she attains her majority. In case a minor child is married and the
magistrate is satisfied that the husband of such minor female child is not possessed of
sufficient means, then the magistrate can order father of the minor female child to make
such an allowance for maintenance.
When a proceeding is pending regarding monthly allowance for maintenance, the Magistrate
can order such person to make a monthly allowance for the interim maintenance of his wife,
children or parents and the expenses of such proceeding which the Magistrate considers
reasonable.
 An application for the monthly allowance for the interim maintenance and expenses of
proceeding should be disposed within sixty days from the date of the notice of the
application to such person.
According to Section 125(2), If a court order for such allowance for maintenance or interim
maintenance and expenses of the proceeding, then it should be payable from the date of the
order or if so ordered, then it shall be payable from the date of application for maintenance
and expenses of proceedings.
 According to Section 125(3), If any person fails to comply with the order without sufficient
cause, then Magistrate can order to issue a warrant for levying the amount with fines. If
the person again fails after the execution of the warrant, then the punishment of
imprisonment for a term which may extend to one month or until payment of sooner made
is awarded.
Alteration in allowance
Alteration in allowance means an order to increase, decrease or remove/cancel the allowance which was ordered by the
Magistrate under Section 125.

According to Section 127(1), if a magistrate ordered to give allowance for maintenance under Section 125 according to the
conditions of parties at that time, but if the present conditions of parties have changed, then he can also order to alter the
allowance. For example-

Husband had a well-settled job and means for maintenance, on this basis the Court has ordered him to maintain his wife
and to allowance under Section 125. But in the present condition, the husband has no job and means for maintenance.
Then, the Court can alter the allowance and can reduce the amount of allowance.
 If a wife was not having any job or she was unable to maintain herself and she got the order of allowance under Section
125. But after some months, she is well settled and she has the means to maintain herself. In this case, the Court can
order to remove or cancel allowance.
According to Section 127(2), Magistrate shall cancel or revoke any order given under Section 125 by him, if it appears that it
should be cancelled in consequences of any decision of the competent Civil Court. For example- If Magistrate has ordered to
give allowance to wife after divorce but Civil Court has ordered to live together. Then, Magistrate has to revoke his order which
was given under Section 125.

According to Section 127(3), where an order has been made in favour of women under Section 125, then the magistrate can
cancel the order in the following case:

If a woman is remarried after divorce.

If a woman has taken allowance under any personal laws after divorce.
If a woman has voluntary leave her right to maintenance.
 According to Section 127(4), the Civil Court shall take into account the sum which has been paid to such person as monthly
allowance for maintenance and interim maintenance under Section 125 at the time of making any decree for the recovery
of any maintenance or dowry.
Enforcement of order of maintenance
Section 128 deals with “Enforcement of order of maintenance”. According to this Section, the following
are the conditions for enforcement of the order of maintenance:

Copy of order under Section 125 is given to that person free of cost in whose favour it is made. In case
the order is in favour of children, then the copy of the order will be given to the guardian of children.
If any Magistrate has made an order under Section 125, then any Magistrate of India can enforce this
order where that person lives who have to give maintenance.
The Magistrate has to satisfy two conditions before enforcement of order:
Identity of parties, and
 Proof of non-payment of allowances
Conclusion
Chapter IX of the Code of Criminal Procedure is essential for the protection of the rights of the
divorced wife, children and aged parents. It is made to protect them from unusual livelihood.
Maintenance is the duty of everyone who has sufficient means for the same. In this chapter of
Cr.PC, there are various provisions given related to maintenance like who is entitled to
maintenance, essential conditions for granting maintenance, Procedure of maintenance,
Alteration of the previous order, Enforcement of order of maintenance etc.

 Reference