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Maintenance under the CrPC

Section 125 does not aim to benefit those belonging to any particular religion, its use by Muslim wives was curtailed by the Muslim Women (Protection of Rights on Divorce) Act, 1986.

However, according to a report in the Indian Express, the High Court of Bombay at Aurangabad has said that a Muslim woman is entitled to maintenance under Section 125 of the Code of Criminal Procedure if the Talaq is not valid. In this case, the husband’s own version did not reveal a credible reason for divorce and in addition to that, there was no attempt at reconciliation prior to the divorce as is required under Supreme Court guidelines.

Section 125. Maintenance

If a person who has sufficient means neglects or refuses to maintain:

his wife, unable to maintain herself, whether or not he is divorced from her or
his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(If the child is a married daughter, maintenance is to be paid till she attains majority if her husband does not possess sufficient means.)
his legitimate or illegitimate adult child who cannot maintain itself because of any physical or mental abnormality or injury
(This does not include a married daughter.)
his father or mother, unable to maintain himself or herself,
he can be ordered to pay maintenance to those persons by the Family Court in places where a Family Court has been established or by a JMFC in other places if the neglect or refusal is proved.

The Court may order him to pay a monthly allowance as maintenance of his wife or such child, father or mother as it thinks fit to the person.

The allowance is payable from the date of the order, or, if so ordered, from the date of the application for maintenance.

If any person so ordered fails without sufficient cause to comply with the order, the Court 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 allowances 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. However, no warrant shall be issued for the recovery of any amount due under this section unless application is made to the Court to levy such amount within a period of one year from the date on which it became due.

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If such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, the Court 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. 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.

A wife is not entitled to receive an allowance from her husband if she is living in adultery, or if, she refuses to live with her husband without any sufficient reason, or if they are living separately by mutual consent.

On proof that any wife in whose favour an order has been made is living in adultery, or that she refuses to live with her husband without sufficient reason, or that they are living separately by mutual consent, the Magistrate shall cancel the order.

Section 126: Procedure

Proceedings under section 125 may be taken against any person in any district:

where he is, or
where he or his wife, resides, or
where he last resided with his wife, or as the case may be, with the mother of the illegitimate child.
All evidence in such proceedings is taken in the presence of the person against whom an order for payment of maintenance is to be made, or, when his personal attendance is dispensed with, in the presence of his pleader. It is recorded in the manner prescribed for summons-cases. However, if the Court is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, it 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 at to payment of costs to the opposite party as it thinks is just and proper.

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The Court in dealing with applications under section 125 has the power to make such order as to costs as may be just.

Section 127. Alteration in allowance

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 case may be, the Court may make such alteration in the allowance he thinks fit.

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.

Where any order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Court shall, if it is satisfied that:

the woman has, after the date of such divorce, remarried, cancel such order as from the date of her remarriage;
the woman 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:

in the case where, such sum was paid before such order, from the date on Which such order was made,
in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband by the woman;
the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance after her divorce, cancel the order from the date of the divorce.
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 takes into account the sum which has been paid to, or recovered by, such person as monthly allowance in pursuance of the said order.

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Section 128: Enforcement of order of maintenance

A copy of the order of maintenance is given without payment to the person in whose favour it is made, or to his guardian, if any or to the person to whom the allowance is to be paid.

The 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.

16 thoughts on “Maintenance under the CrPC

  1. Please Help
    How can i get stay order against 125. I filed Section 9 as first party and my wife file after that Section 125 and 13(1).

  2. Sir,
    Site having lot of informatins which is useful like me.
    I got divorce from my wife who has mentaly disorder before marriage under section 13(1)(iii) This fact was not disclosed by her and her relatives .Now she has filed petition under cr p c 125 . Plesae give me relevant case laws so that i will be succeed in this matter.
    I would be grateful for your kind help Thanking you.

    very truely yours
    A Harish

  3. shlabh ji u r right, and judge didnt given order in fav of wife b coz u r file section 9 and sec 9 is only ruling in husbands hand so u r not worry about that u can say the judge that if i am ready to live with her and shis cant want to live with us than what can i do for and without any sufficient mean shis cant take any money from husband, u can file first for stop any file 125 against husband, in lower court, write on that without hearing of sec 9 they cant file 125 so u can stay them


  4. Please Help
    How can i get stay order against 125. I filed Section 9 as first party and my wife file after that Section 125. COurt Order to me 2500 P/m

  5. I am earning Gross salary of Rs.21000/- P.M. out of my job. Me and my wife have differneces sing long i.e. from 10 years immediately after our marriage in 1999. so we are ready to separate and file for divorce, but she is claiming maintenance. so after deductions i get 10000/- pm. My wife work in Pvt. comapany and gets Rs.5000/- pm and have Rs.2000000 (twenty lakhs worth property share , but documents of property is not on her name) we have only one child (boy). my salary recoveries are (1) Rs.3000/- Govt. compolsury deductions, (2) i have taken personal loan for house old articles and domestic expenditure in in Cooperative Credit society of our office and it was Rs.200000 (two lakhs) and recovery for this is Rs.7000 (seven thousand pm). what will be the maintenance to my wife and son in case of a maintenance petition filed. she threatens me that she will quit the job at the time of maintenance petition and show to the court that she is not getting any income to get the maximum maintenance from me. Please advise as how to overcome from this obstacle.

  6. Wife living in adultery Crpc 125 does she eligible formaintenance

  7. my wife is not staying with me by her own wish .we have one child also. i made many attempts to take her back but no use .she has claimed for maintenance . but last year i was in B.ed course currently unemployed as result comes out in july end. i still want to continue my married life. can court forcibly order me for maintenance as her lawer trying for that . kindly suggest me for that.

    // if she is not working then court will award intrime, she will not get maintenance only if she is working or capable and she left you her own for more such judgments check here and if you have question post it here — eDitor

  8. When a wife living in adultery, if she was caught by Police and registered case under IPC and fined for Rs. 50/- by the court of law. Does she eligible for Mataintenacne u/S CrPc 125/127 or not .Kindly suggest.

    Legal Advisor

    //Under what IPC ? check for similar judgments here for more please post it here http://forum.mynation.neteDitor

  9. after getting decree from family court mother not using real child father name in sociaty then she get maintinance of child from executing court

  10. My wife is residing with me.Every husband and wife should make understand with each other so the both life will go peacefully.

  11. I was working in a software company with a monthly salary of 50 thousand and my wife too was working in govt sector on contract basis and was getting a salary of 50 thousand per month. She filed a false case against me, my mom and my dad under 498 A . We are muslims. She had extra marital affairs and she drinks beer. I have photographs for her having company tour with her lover who is her office-mate. We have a 7 months old baby boy. Will I have to give maintenance under the law?

  12. if you prove her extra marital affair and Salary, she is not entitled to claim any money.

  13. Whether the digital photograph is considered as a proof. I have the photos in digital format only. I don’t have the camera by which the photo was taken. In that photo she sits near to her lover in a car and both of them poses to the camera in a beach. She had mentioned in the FIR that she has been working for central govt.

  14. i am 34 year old boy working in my mother’s shop of Retail
    garments. I have been married to a parsi girl aged 26 as per mutual
    understanding with my and her parents on 29-09-2011 as per hindu law. But she is not satisfied and creating problems in my family and her parents interference in my family is very much my family make them understand but they didn’t on 6-3-12 they (my in laws) took away my wife and after 8 months they felt sorry and ask us to pls take her back after mutual understanding she was back with 3 months old son of mine But on 16-12-12 they again came back and forcibly taken my wife to their house after beating me and creating nonsense at my place for which I ve made a complaint in local police station, on 16-12-12 Local police has provide me a medical treatment in government hospital ant had register my complaint in CPC 155 u/s 323 and given an application to Mahilla thana, SP office on 16-12-12
    My wife has also given an application on 16-12-12 to Local police station and Mahilla thana
    I have been called by Mahilla Thana on 21-12-12 in which telephonically my wife has refused to come and said that all the legal proceedings she will be doing from CWA
    On 19-12-12 she had made a fresh application with change matter and had given to CWA Local police station, and Mahilla Thana
    CWA Local police station had inquired the matter and the SI has taken a statement of my wife and forwarded the matter to SP office. CWA SP has forwarded the same application to SP BPL saying I am not having territorial jurisdiction
    On 22-02-13 my wife came up with fresh application with change matter and had filed a case against me and my parents u/s 498a and 3,4 of DPA/34
    I ve file section 9 on 19-12-12 against my wife which she came and told that I don’t want to live with him at any cost and condition in section 9 all the statements had been recorded from both the side then I have withdrawn the case
    I ve also file a case against my FIL, MIL, SIL and 3 other persons u/s 147,148,323,452,506/34 the case is pending till date
    My wife had file 498a case on 6-3-13 in which I have been arrested and had been in jail for a day and I ve taken AB for my parents but I ve been bailed and the status of the case is that we have not taken the case in charge but the court had filed charges u/s 498a
    My wife had also filed 125 case also in which I had appeared and judge had made a counseling session in which also my wife refused to come at an cost and condition
    My query is what should I do know

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