Maintenance under Sections 125-128 CrPC in India

An Analytical Study of the Law of Maintenance under Sections 125 to 128 of the Code of Criminal Procedure, 1973 in India

Introduction

Chapter IX of the Code of Criminal Procedure, 1973 (CrPC), encompassing Sections 125 to 128, provides a crucial legal framework for maintenance in India. These provisions are designed to offer a swift, summary, and efficacious remedy to prevent destitution and vagrancy among vulnerable sections of society, namely wives, children, and parents who are unable to maintain themselves. The underlying philosophy of these sections is rooted in social justice and the State's constitutional obligations. As observed in several judicial pronouncements, these provisions are a measure of social justice specially enacted to protect women and children, falling within the constitutional sweep of Article 15(3) (special provisions for women and children) and reinforced by Article 39 (State's policy towards securing adequate means of livelihood and protection against exploitation) of the Constitution of India (Saroj Bai v. Jai Kumar Jain, Ref 16; Smt. Alka And 2 Others v. State Of U.P. And Another, Ref 19; Smt. Malan v. Baburao Yestwant Jadhav, Ref 17). The Supreme Court in Sanjeev Kapoor v. Chandana Kapoor And Others (2020 SCC OnLine SC 92, Ref 18) reiterated that Section 125 CrPC is a social justice legislation, and its interpretation must be purposive to achieve the constitutional vision.

This article seeks to provide a comprehensive analysis of Sections 125 to 128 CrPC, examining their scope, judicial interpretations, interplay with personal laws, and the procedural aspects governing maintenance claims in India, drawing extensively upon landmark judgments and statutory provisions.

Scope and Object of Section 125 CrPC

Section 125(1) CrPC empowers a Magistrate of the First Class to order a person having sufficient means to make a monthly allowance for the maintenance of his wife, legitimate or illegitimate minor child (whether married or not), legitimate or illegitimate child (not being a married daughter) who has attained majority but is unable to maintain itself due to physical or mental abnormality or injury, or his father or mother, if such wife, child, or parent is unable to maintain herself/itself/himself, and such person neglects or refuses to maintain them (Savitaben Somabhai Bhatiya v. State Of Gujarat And Others, Ref 12; Abdul Rashid Petitioner v. State Of Odisha & Others Opp. Parties, Ref 14). The provision explicitly states the condition of the claimant being "unable to maintain herself/itself/himself" and the "neglect or refusal" by the person with "sufficient means."

The proceedings under Section 125 CrPC are summary in nature, aimed at providing speedy relief (Smt. Alka And 2 Others v. State Of U.P. And Another, Ref 19). The standard of proof required in these proceedings, particularly for establishing marriage, is not as stringent as in a criminal trial for offences like bigamy under Section 494 of the Indian Penal Code (Dwarika Prasad Satpathy v. Bidyut Prava Dixit (1999) 7 SCC 675, cited in Badshah v. Urmila Badshah Godse And Another (2014) 1 SCC 188, Ref 6; Haradhan Nath, South Tripura v. Hemalata Nath, Ref 20). The provision is secular in character, applying to all persons irrespective of their religion, a principle firmly established in Mohd. Ahmed Khan v. Shah Bano Begum And Others ((1985) 2 SCC 556, Ref 7).

Initially, Section 125 CrPC prescribed a maximum maintenance amount of five hundred rupees per month. However, this monetary ceiling was removed by the Code of Criminal Procedure (Amendment) Act, 2001, allowing Magistrates to award an amount they deem fit based on the circumstances of the case.

Interpretation of "Wife" for Maintenance under Section 125 CrPC

The term "wife" under Section 125 CrPC has been a subject of extensive judicial interpretation, particularly concerning the rights of women in various marital and quasi-marital situations.

Legally Wedded Wife and Presumption of Marriage

The Supreme Court in Savitaben Somabhai Bhatiya v. State Of Gujarat And Others ((2005) 3 SCC 636, Ref 8, 12) held that the term "wife" in Section 125 CrPC generally refers to a legally wedded wife. A woman whose marriage is null and void, for instance, due to the subsistence of a prior marriage of the husband, would ordinarily not be entitled to maintenance as a "wife" under this section.

However, courts have recognized a presumption of marriage arising from long cohabitation. In Chanmuniya (S) v. Virendra Kumar Singh Kushwaha & Anr. ((2011) 1 SCC 141, Ref 5), the Supreme Court, while referring the matter to a larger bench, indicated that a broad interpretation should be given to "wife" to include cases where a man and woman have cohabited for a reasonably long period. This approach aims to prevent destitution and ensure social justice, suggesting that strict proof of marriage should not always be a precondition for maintenance under Section 125 CrPC (Ref 19, 20). The court in Haradhan Nath (Ref 20) noted that if the claimant shows cohabitation as husband and wife, a presumption of legal marriage arises, which the denying party can rebut.

Rights of a Woman in a Void or Voidable Marriage

The judiciary has adopted a purposive interpretation in cases where a woman is duped into a marriage that is legally void. In Badshah v. Urmila Badshah Godse And Another ((2014) 1 SCC 188, Ref 6), the Supreme Court held that if a man fraudulently conceals his prior marriage and marries another woman, he cannot deny maintenance to the second "wife" under Section 125 CrPC by taking advantage of his own wrong. The Court emphasized that a restrictive interpretation would frustrate the object of the provision. This stands in nuanced contrast to Savitaben (Ref 8), where the claim of the second wife was denied, likely in a context where fraud by the husband was not established or the wife was aware of the prior marriage.

In Vimala (K.) v. Veeraswamy (K.) ((1991) 2 SCC 375, Ref 3), where the respondent admitted to marrying the appellant according to Hindu rites, the Supreme Court restored the trial court's order granting maintenance, even though the High Court had set it aside on the ground that the respondent's first marriage was subsisting. The focus was on the admission of marriage and the inability of the appellant to maintain herself.

Divorced Wife

Explanation (b) to Section 125(1) CrPC explicitly clarifies that "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried (Ref 15). This provision ensures that a divorced woman, if unable to maintain herself and not remarried, can claim maintenance.

The application of Section 125 CrPC to divorced Muslim women has been a historically significant legal issue. The Supreme Court in the landmark case of Mohd. Ahmed Khan v. Shah Bano Begum And Others ((1985) 2 SCC 556, Ref 7, 29) held that Section 125 CrPC applies to divorced Muslim women and that their right to maintenance extends beyond the iddat period if they are unable to maintain themselves. This judgment led to considerable debate and the enactment of The Muslim Women (Protection of Rights on Divorce) Act, 1986 (MWA).

Subsequently, in Danial Latifi And Another v. Union Of India ((2001) 7 SCC 740, Ref 9), the Supreme Court upheld the constitutional validity of the MWA. Importantly, it interpreted Section 3(1)(a) of the MWA, which provides for "a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband," to mean that the provision and maintenance must be made during the iddat period for the entirety of her future needs or until she remarries, not just for the iddat period itself. This interpretation harmonized the MWA with the principles laid down in Shah Bano.

The Supreme Court in Shabana Bano v. Imran Khan ((2010) 1 SCC 666, Ref 1) further clarified that a divorced Muslim woman's petition under Section 125 CrPC is maintainable as long as she has not remarried and has not received the entirety of the "reasonable and fair provision" due under the MWA. The Court relied on Danial Latifi and Iqbal Bano v. State of U.P. ((2007) 6 SCC 785) to hold that proceedings under Section 125 CrPC are civil in nature and that the remedy is available irrespective of the MWA, unless the husband has made a "reasonable and fair provision" as contemplated by the MWA.

Quantum of Maintenance and Relevant Factors

The determination of the quantum of maintenance is at the discretion of the Magistrate, who must consider various factors to arrive at a just and reasonable amount. While the erstwhile cap of Rs. 500 has been removed, the principles guiding this discretion remain pertinent.

In Shri Bhagwan Dutt v. Smt Kamla Devi And Another ((1975) 2 SCC 386, Ref 10), the Supreme Court held that while a wife's independent income does not bar her from filing a maintenance petition, such income must be considered by the Magistrate when fixing the quantum of maintenance. The Court clarified that the phrase "unable to maintain herself" does not mean the wife must be an absolute destitute.

The court must consider the status of the parties, the needs of the claimant, the income and financial capacity of the respondent, his liabilities, reasonable expenses for his own maintenance and dependent family members, the standard of living the claimant was accustomed to in her matrimonial home, and the spiraling inflation rates and high costs of living (Chandan Singh v. Smt Shila Singh & Anr, Ref 21; Shamima Farooqui v. Shahid Khan (2015) 5 SCC 705, Ref 4, citing Jasbir Kaur Sehgal v. Distt. Judge, Dehradun (1997) 7 SCC 7). The plea of the husband that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife if he is able-bodied and has educational qualifications (Ref 21). The Supreme Court in Bhuwan Mohan Singh v. Meena ((2015) 6 SCC 353, cited in Ref 19) observed that the husband is required to earn money even by physical labor, if able-bodied, to provide financial support.

Date from which Maintenance is Payable (Section 125(2) CrPC)

Section 125(2) CrPC stipulates that any allowance for maintenance ordered under sub-section (1) shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance (Saroj Bai v. Jai Kumar Jain, Ref 16). The Supreme Court in Rajnesh v. Neha And Another ((2021) 2 SCC 324, Ref 11) provided comprehensive guidelines, including on the date from which maintenance should be awarded, generally favoring the date of application for interim maintenance to provide immediate relief.

Procedure (Section 126 CrPC)

Section 126 CrPC lays down the procedure for maintenance proceedings. It specifies the territorial jurisdiction for filing the application, which can be where the husband 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. It also mandates that evidence in such proceedings shall be recorded in the manner prescribed for summons cases. All evidence is to 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 (Ref 13).

Alteration of Allowance (Section 127 CrPC)

Section 127 CrPC provides for the alteration of maintenance allowance. Sub-section (1) allows the Magistrate to alter the monthly allowance if there is a proof of a change in the circumstances of any person receiving maintenance under Section 125 CrPC or paying such allowance (Ref 14, 22).

Section 127(3)(a) mandates the cancellation of a maintenance order in favour of a divorced woman from the date of her remarriage (Ref 13). Section 127(3)(b) provides that the Magistrate shall cancel the order if the woman 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. This sub-section was central to the debate in Shah Bano (Ref 7), where the payment of mahr was argued to absolve the husband of further maintenance liability, a contention largely negated by subsequent judicial interpretations focusing on "reasonable and fair provision."

The power to alter or modify orders under Section 127 CrPC distinguishes maintenance proceedings from the general rule under Section 362 CrPC, which bars a criminal court from altering or reviewing its judgment or final order disposing of a case, except to correct a clerical or arithmetical error (Sanjeev Kapoor v. Chandana Kapoor And Others, Ref 18).

Enforcement of Maintenance Orders (Section 125(3) and Section 128 CrPC)

Section 125(3) CrPC provides the mechanism for enforcement if a person fails without sufficient cause to comply with the maintenance order. The Magistrate may, for every breach, issue a warrant for levying the amount due as a fine and may sentence such person, for the whole or any part 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 (Ref 15).

Crucially, the Supreme Court in SMT. Kuldip Kaur v. Surinder Singh And Anr. ((1989) 1 SCC 405, Ref 2) held that sentencing a person to jail for non-payment of maintenance under Section 125(3) CrPC is a mode of compelling compliance and does not discharge the monetary liability. The arrears remain payable.

Section 128 CrPC further deals with the enforcement of the order of maintenance, stating that a copy of the order may be sent to the Magistrate in whose jurisdiction the person against whom the order is made resides, and such Magistrate shall enforce it as if it were an order made by himself (Ref 14, 22). The Supreme Court in Rajnesh v. Neha (Ref 11) also laid down guidelines to strengthen the enforcement mechanisms for maintenance orders.

Regarding Muslim women, the Punjab & Haryana High Court in Hazran v. Abdul Rehman (Ref 22, 23) considered the impact of the MWA on pre-existing S.125 orders, suggesting that the MWA did not contain provisions for enforcing S.125 orders that had become final before the MWA's enactment, implying such orders remained enforceable under CrPC. However, this area saw varied High Court opinions (e.g., All India Muslim Advocates Forum v. Osman Khan Brahamaini @ Basha And ..., Ref 27, suggesting implied repeal) before the Supreme Court's clarifying judgments.

Overlapping Jurisdictions and Harmonization

Claimants often have remedies available under multiple statutes, such as Section 125 CrPC, the Protection of Women from Domestic Violence Act, 2005 (DV Act), and personal laws like the Hindu Adoptions and Maintenance Act, 1956 (HAMA). This can lead to overlapping jurisdictions and multiple proceedings.

The Supreme Court in Rajnesh v. Neha And Another ((2021) 2 SCC 324, Ref 11) addressed this issue comprehensively. It directed that parties must disclose any previous maintenance proceedings and orders. While simultaneous claims under different laws are permissible (e.g., Nanak Chand v. Chandra Kishore Aggarwal (1969) 3 SCC 802, cited in Ref 11, holding HAMA doesn't repeal S.125 CrPC), any amount awarded in one proceeding should be adjusted or set off against the amount awarded in another to prevent duplication of payments and undue hardship to the payer.

In the context of Muslim children, the Supreme Court in Noor Saba Khatoon v. Mohd. Quasim ((1997) 6 SCC 233, Ref 25) held that a Muslim father's obligation to maintain his minor children under Section 125 CrPC is absolute and is not affected by Section 3(1)(b) of the MWA (which pertains to the mother maintaining children for two years of fosterage). The children's right to claim maintenance under Section 125 CrPC is separate, distinct, and independent.

Guidelines from Rajnesh v. Neha

The judgment in Rajnesh v. Neha And Another (Ref 11) is a significant development in streamlining maintenance litigation in India. The Supreme Court issued extensive guidelines, including:

  • Affidavit of Disclosure: Mandatory filing of affidavits of assets and liabilities by both parties in all maintenance proceedings to ensure transparency and enable a fair determination of the quantum. Standard formats were provided.
  • Criteria for Interim Maintenance: Reiterated principles for granting interim maintenance, emphasizing the need for a prima facie view of the wife's inability to maintain herself and the husband's capacity.
  • Date from which Maintenance to be Awarded: Generally, maintenance (both interim and final) should be awarded from the date of filing the application.
  • Enforcement of Orders: Stressed the need for strict enforcement and suggested measures like attachment of salary, recovery as arrears of land revenue, or civil detention.
  • Overlapping Jurisdiction: As discussed above, mandating disclosure and adjustment of amounts awarded under different statutes.

These guidelines aim to ensure consistency, expediency, and fairness in the adjudication and enforcement of maintenance orders across the country.

Conclusion

Sections 125 to 128 of the Code of Criminal Procedure, 1973, constitute a vital piece of social welfare legislation in India. They provide a secular and relatively speedy remedy for neglected wives, children, and parents to secure financial support. The judiciary, through progressive interpretations, has significantly expanded the protective ambit of these provisions, particularly in recognizing the rights of women in diverse marital situations and ensuring that the objective of preventing destitution and vagrancy is effectively met. Landmark judgments like Shah Bano Begum, Danial Latifi, Shabana Bano, Badshah, and Rajnesh v. Neha have shaped the jurisprudence of maintenance, striving to balance legal principles with the imperative of social justice. While challenges in implementation and delays persist, the framework of Sections 125-128 CrPC, fortified by judicial activism and legislative amendments, continues to play a critical role in upholding the dignity and ensuring the sustenance of vulnerable individuals in Indian society.