Section 126 of the Code of Criminal Procedure, 1973: Jurisdictional Framework and Procedural Mandates for Maintenance Claims in India

Introduction

Section 125 of the Code of Criminal Procedure, 1973 (CrPC) stands as a cornerstone of social justice in Indian law, providing a swift and summary remedy for neglected wives, children, and parents to claim maintenance. Its secular character and objective to prevent vagrancy and destitution have been repeatedly affirmed by the judiciary, as seen in landmark cases like Mohd. Ahmed Khan v. Shah Bano Begum And Others (1985 SCC CRI 245) and Savitri v. Govind Singh Rawat (1985 SCC 4 337). However, the efficacy of this substantive right to maintenance is intrinsically linked to the procedural framework that governs its application and enforcement. Section 126 of the CrPC provides this crucial procedural backbone, delineating the territorial jurisdiction of courts to entertain maintenance petitions and prescribing the methodology for recording evidence and handling ex-parte proceedings. This article undertakes a comprehensive analysis of Section 126 CrPC, drawing upon statutory provisions and judicial pronouncements to elucidate its scope, interpretation, and impact on the administration of maintenance laws in India.

The significance of a clear procedural law like Section 126 CrPC is underscored by the Supreme Court's emphasis on speedy adjudication in maintenance cases, as highlighted in Bhuwan Mohan Singh v. Meena And Others (2015 SCC 6 353), where delays were deprecated. Furthermore, the guidelines laid down in Rajnesh v. Neha And Another (2021 SCC 2 324) for uniformity in maintenance proceedings demonstrate the judiciary's ongoing efforts to streamline the process, making the role of foundational procedural sections like 126 CrPC even more critical.

Statutory Provisions of Section 126 CrPC

Section 126 of the Code of Criminal Procedure, 1973, titled "Procedure," lays down the rules for proceedings initiated under Section 125. It reads as follows:

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

(c) where he last resided with his wife, or as the case may be, with the mother of the illegitimate child.

(2) All evidence in 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.

These provisions are designed to ensure accessibility for claimants, procedural fairness for respondents, and efficiency in adjudication.

Analysis of Jurisdictional Clauses: Section 126(1) CrPC

Section 126(1) CrPC offers multiple forums for initiating maintenance proceedings, thereby enhancing access to justice for claimants who are often in vulnerable positions. The Supreme Court in Vijay Kumar Prasad v. State Of Bihar And Others (2004 SCC 5 196) noted that Section 126 of the new Code is an expansion of the venue provisions found in Sections 488(6) to (8) of the Code of Criminal Procedure, 1898, particularly by allowing proceedings where the wife resides. The Court also affirmed that proceedings under Section 125 are of a civil nature, although governed by criminal procedure.

Clause (a): "where he is"

This clause permits proceedings to be initiated in any district where the respondent "is" at the time of filing. The term "is" implies physical presence, even if temporary, and is not necessarily tied to permanent residence. In Al Ashraf Kably & Anr. Petitioners v. Al Farrok Kably & Anr. S (2013 SCC ONLINE BOM 194), the Bombay High Court considered this clause in the context of respondents who were foreign nationals. The Court, referring to Vijay Kumar Prasad, observed that an application by a father for maintenance must be filed where the party against whom the application is made "is". The judgment highlighted that the CrPC extends to the whole of India (with exceptions applicable at the time) and its process cannot be issued beyond India, thus interpreting "is" to mean presence within the territorial jurisdiction of Indian courts. This clause provides a practical option if the respondent's permanent residence is unknown or difficult to ascertain, but their current location is known.

Clause (b): "where he or his wife resides"

This is perhaps the most frequently invoked jurisdictional clause. It allows the proceedings to be initiated either in the district where the respondent (husband, father, or son, as the case may be) resides or where the wife (claimant) resides. The inclusion of the wife's place of residence is a significant departure from older laws and is a testament to the legislature's intent to ease the burden on women seeking maintenance, who may have been forced to leave the matrimonial home and reside elsewhere, often in their parental homes. The term "resides" implies more than a fleeting stay and suggests a more permanent or habitual place of abode. The interpretation of "wife" itself under Section 125 CrPC has been subject to judicial scrutiny, as seen in Savitaben Somabhai Bhatiya v. State Of Gujarat And Others (2005 SCC 3 636), which held that "wife" refers to a legally wedded wife.

Clause (c): "where he last resided with his wife, or as the case may be, with the mother of the illegitimate child"

This clause provides an additional forum based on the past shared residence of the parties. The "last resided" refers to the place where the husband and wife last lived together in a marital relationship before separation. This is particularly relevant when the parties may have moved to different locations post-separation. The phrase "as the case may be, with the mother of the illegitimate child" extends this jurisdictional ground to claims for maintenance of illegitimate children, allowing the mother to file where she last resided with the putative father. The standard of proof for marriage in Section 125 proceedings, being summary in nature, is not as stringent as in other civil or criminal matters, as discussed in Dwarika Prasad Satpathy v. Bidyut Prava Dixit And Another (1999 SCC 7 675).

Procedural Mandates under Section 126 CrPC

Section 126(2): Recording of Evidence and Ex-Parte Proceedings

Section 126(2) mandates that all evidence in maintenance proceedings must be taken in the presence of the respondent or their pleader (if personal attendance is dispensed with) and recorded in the manner prescribed for summons cases. This ensures adherence to the principles of natural justice. The Karnataka High Court in N.S.MAHANTESHA v. SMT. K.S.HEMASHREE (2016), relying on earlier precedent (*Smt.Aruna @ Suvarna & another vs., Marilingappa*, ILR 2009 KAR 3728), held that evidence in Section 125 CrPC proceedings must be recorded as in a summons case and that affidavit evidence is not permissible. The court found an inherent defect where, after the wife's evidence, the case was not posted for the husband's evidence.

The proviso to Section 126(2) empowers the Magistrate to proceed ex-parte if satisfied that the respondent is willfully avoiding service or neglecting to attend court. This is a crucial provision to prevent respondents from frustrating proceedings. However, any ex-parte order can be set aside for "good cause shown" within three months, subject to terms like payment of costs. The mechanism for setting aside ex-parte orders was discussed in cases like Smt. Suryakanti Rao And Others v. Sarathi Rao (2001 OLR 1 126), where the Orissa High Court dealt with the implications of setting aside an ex-parte final order on a pre-existing interim maintenance order. Similarly, in Ramandip Kaur Minor… v. Sarwan Singh…. (Punjab & Haryana High Court, 1998), the court considered an application under Section 126 CrPC to set aside an ex-parte order upon proof of sufficient cause for non-appearance.

Section 126(3): Power to Award Costs

Section 126(3) confers discretion upon the court to make such orders as to costs as may be just. This provision acknowledges that litigation, especially for destitute claimants, can be financially burdensome. The award of costs can help mitigate this burden. In Rama Singh v. State Of U P (Allahabad High Court, 1990), the High Court, while restoring the maintenance amount awarded by the Magistrate, specifically invoked Section 126(3) CrPC to order the husband to pay costs of the revision to the wife, directing the Magistrate to enforce the payment of costs.

Interplay with Section 125 CrPC and the Spirit of Maintenance Law

Section 126 CrPC is not merely a procedural adjunct but an integral part of the scheme for providing maintenance. The legislative intent behind Section 125 CrPC, as elucidated in numerous Supreme Court judgments, is to provide a speedy, effective, and summary remedy to prevent destitution and vagrancy (Savitri v. Govind Singh Rawat, 1985; Bhuwan Mohan Singh v. Meena, 2015). The flexible jurisdictional rules in Section 126(1) CrPC directly contribute to this objective by making it easier for claimants to approach the courts. The procedural safeguards in Section 126(2), including the provision for ex-parte orders, balance the rights of both parties while ensuring that proceedings are not unduly delayed.

The Supreme Court's decision in Rajnesh v. Neha (2021), which laid down comprehensive guidelines for maintenance cases, including the requirement for affidavits of assets and liabilities and criteria for determining quantum, operates within the procedural framework established by sections like 126 CrPC. An efficient and clear procedural law ensures that the substantive benefits of maintenance, including interim maintenance (Savitri v. Govind Singh Rawat, 1985), are realized without undue hardship.

The Andhra Pradesh High Court in Brij Raj Pershad v. Shantha Devi And Another (1988 SCC ONLINE AP 82), while primarily discussing Section 127 CrPC (alteration of allowance), noted that Section 126 CrPC contemplates the jurisdiction of the Magistrate, indicating the interconnectedness of these procedural provisions in the overall scheme of maintenance.

Conclusion

Section 126 of the Code of Criminal Procedure, 1973, plays a pivotal role in operationalizing the right to maintenance enshrined in Section 125. By providing multiple accessible venues for initiating proceedings, it caters to the needs of vulnerable claimants. Its procedural mandates regarding evidence recordal, handling of ex-parte matters, and awarding of costs aim to ensure fairness, efficiency, and justice. Judicial interpretations have consistently sought to uphold the spirit of this provision, aligning it with the broader socio-economic objectives of maintenance laws in India. As maintenance laws continue to evolve, the foundational strength provided by well-defined procedural rules like those in Section 126 CrPC remains indispensable for ensuring that the legal promise of support translates into tangible relief for those in need.