THE CODE OF CRIMINAL PROCEDURE, 1973: CHAPTER IX

CHAPTER IX - ORDER FOR MAINTENANCE OF WIVES, CHILDREN

AND PARENTS

125. Order for maintenance of wives, children and parents,

(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

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 such monthly rate not exceeding five

hundred rupees in the whole, 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

Explanation—For the purposes of this Chapter—

(a) "minor" means a person who, under the provisions of the Indian Majority Act, 1875

(9 of 1875) is deemed not to have attained his majority;

(b) "wife" includes a woman who has been divorced by, or has obtained a divorce from,

her husband and has not remarried

(2) Such allowance shall be payable from the date of the order, or, if so ordered, from the date of

the application for maintenance

(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 port of

each month's allowance 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 refuses to live with him, such Magistrate 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

Explanation—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

(4) No wife shall be entitled to receive an allowance 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 by 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

STATE AMENDMENTS

Madhya Pradesh:

In sub-section (1) of section 125 of the Act for the words "five hundred rupees" the words "three

thousand rupees" shall be substituted

[Vide MP (Act 10 of 1998), sec 3 (wef 29-5-1998)

Maharashtra:

In Section 125 of the Code of Criminal Procedure, 1973, in its application to the State of

Maharashtra:—

(a) in sub-section (1),—

(i) for the words "not exceeding five hundred rupees" the words "not exceeding fifteen

hundred rupees" shall be substituted;

(ii) before the existing proviso, the following proviso shall be inserted, namely:—

Provided that, the Magistrate on an application or submission being made, supported by

an affidavit by the person who has applied for the maintenance under this sub-section, for

payment of interim maintenance, on being satisfied that, there is a prima facie ground for making

such order, may direct the person against whom the application for maintenance has been made,

to pay a reasonable amount by way of interim maintenance to the applicant, pending the final

disposal of the maintenance application:

Provided further that, such order for payment of interim maintenance may, in an

appropriate case, also be made by the Magistrate ex parte, pending service of notice of the

application, subject, however, to the condition that such an order shall be liable to be modified or

even cancelled after the respondent is heard in the matter:

Provided also that, subject to the ceiling laid down under this sub-section, the amount of

interim maintenance shall, as far as practicable, be not less than thirty per cent of the monthly

income of the respondent";

(iii) in the existing proviso, for the words "Provided that" the words "Provided also that" shall be

substituted;

(b) after sub-section (2), the following sub-section shall be inserted, namely:—

(2A) Notwithstanding anything otherwise contained in sub-sections (1) and (2), where an

application is made by the wife under clause (a) of sub-section (1) for the maintenance

allowance, the applicant may also seek relief that the order may be made for the payment of

maintenance allowance in lump-sum in lieu of the payment of monthly maintenance allowance,

and the Magistrate may, after taking into consideration all the circumstances obtaining in the

case including the factors like the age, physical condition, economic conditions and other

liabilities and commitments of both the parties, pass an order that the respondent shall pay the

maintenance allowance in lump-sum in lieu of the monthly maintenance allowance, covering a

specified period, not exceeding five years at a time, or for such period which may exceed five

years, as may be mutually agreed to, by the parties";

(i) after the words "so ordered" the words, brackets, figures and letter "either under sub-section

(1) or sub-section (2A), as the case may be," shall be inserted;

126. Procedure

(1) Proceedings under section 125 may be taken against any person in any district—

(a) where he is, or

(b) where he or his wife resides, or

illegitimate child

(2) All evidence to such proceedings shall be taken in the presence of the person against whom

an order for payment of maintenance is proposed to be made, or, when his personal attendance is

dispensed with in the presence of his pleader, and shall be recorded in the manner prescribed for

summons-cases:

Provided that if the Magistrate 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, the Magistrate 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 as to payment of costs to the opposite party

as the Magistrate may think just and proper

(3) The Court in dealing with applications under section 125 shall have power to make such

order as to costs as may be just

127. Alteration in allowance

(1) 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 of mother, as the case may be, the Magistrate may make such alteration in the

allowance as he thinks fit:

Provided that if he increases the allowance, the monthly rate of five hundred rupees in the

whole shall not be exceeded

(2) 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

(3) 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 Magistrate shall, if he is satisfied

that—

(a) the woman has, after the date of such divorce, remarried, cancel such order as from

the date of her remarriage;

(b) 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—

(i) in the case where such sum was paid before such order, from the date on which

such order was made,

(ii) in any other case, from the date of expiry of the period, if any, for which

maintenance has been actually paid by the husband to the woman;

surrendered her rights to maintenance after her divorce, cancel the order from the date

thereof

(4) 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 shall take into account the sum which has been paid to, or recovered by, such person as

monthly allowance in pursuance of the said order

STATE AMENDMENT

Maharashtra:

In section 127 of the said Code,—

(a) in sub-section (1), in the proviso, for the words "five hundred rupees" the words "fifteen

hundred rupees" shall be substituted;

(b) in sub-section (4),—

(i) for the words "monthly allowance", where they occur for the first time, the words

"maintenance allowance" shall be substituted;

(ii) after the words "monthly allowance", where they occur for the second time, the words "or, as

the case may be, the lump-sum allowance" shall be inserted

[Vide Maharashtra Act, 21 of 1999 sec 3 (wef 20-4-1999)

Tripura:

In the principal Act, in proviso to sub-section (1) of section 127, for the words "five hundred

rupees", the words "one thousand five hundred rupees" shall be substituted

[Vide Tripura Act 9 of 1999 sec 3 (wef 9-4-1999)

West Bengal:

In the proviso to sub-section (1) of section 127, for the words "five hundred rupees" the words

"one thousand and five hundred rupees" shall be substituted

[Vide WB Act 14 of 1995, sec 2 (wef 2-8-1995)

Comments

Under section 127 (1) of the Code the magistrate is bound to give effect to an order of a

competent civil Court and vary or cancel the order for maintenance made under section 125 of

the Code; Hem Raj v Urmila Devi, (1997) 2 Crimes 561 (HP)

128. Enforcement of order of maintenance

A copy of the order of maintenance shall be 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;

and such 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 nonpayment

of the allowance due