Order for maintenance of wife,

children and parents

Chapter 9
Sections 125-128
 Section 125
• 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
(c) his legitimate or illegitimate child (not being a married daughter) who
has attained majority, 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 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.
• Provided further that the Magistrate may, during the pendency of
the proceeding regarding monthly allowance for the maintenance
under this Sub-Section, order such person to make a monthly
allowance for the interim maintenance of his wife or such child,
father or mother, and the expenses of such proceeding which the
Magistrate considers reasonable, and to pay the same to such person
as the Magistrate may from time to time direct;

• Provided also that an application for the monthly allowance for the

interim maintenance and expenses of proceeding under the second
proviso shall, as far as possible, be disposed of within sixty days
from the date of the service of notice of the application to such
person.
• 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)Any such allowance for the maintenance or interim maintenance and expenses
of proceeding shall be payable from the date of the order, or, if so ordered, from
the date of the application for maintenance or interim maintenance and expenses
of proceeding, as the case may be.
• 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 allowance for the maintenance or
the interim maintenance and expenses of proceeding, as the case may
be 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.

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

maintenance or the interim maintenance and expenses of proceeding,
as the case may be 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 favor 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.
Sec 125- continuation

• Any person:
- Includes father, son and husband
- Does not include mother, wife and daughter
- Parents can claim from son
- Children from father and wife from husband
- Married daughter may be ordered to maintain her
parents if they have no male issues and they cannot
maintain themselves and the daughter has sufficient
means.
• Sufficient means
- Does not mean only tangible assets or property
- Any person who has an able and healthy body is presumed in law to
have sufficient means.
- So, a father, son or husband cannot avoid liability on the ground of
unemployment.
- Sufficient means refers to the earning capacity or the potential
earning status of a person
- The basis is not only earnings but also earning capacity.
- Tarak Shaw v Minto Shaw- even if a person is declared as an insolvent,
he may be liable to provide maintenance if he has sufficient means.
• Neglects/ refuses to maintain
- Neglect is something more then mere failure or omission
- But in case of child, mere failure or omission may amount to
neglect or refusal.
- Subsequent or second marriage is a clear proof of neglect.
- Ali Hussain v Baby Farida Khatoon- If the cruel and inhuman
behaviour of the husband results in the wife living
separately, she can claim maintainence.
125(1)- who may claim maintenance
(a) Wife who is unable to maintain herself
- Legally wedded wife
- Second wife is not entitled to maintenance under Section 125.
- Savitaben Somabhai Bhatiya v State of Gujarat and Ors.
If the 2nd wife is not revealed of the 1st marriage and has been cheated,
then she can claim maintenance under Sec. 125.
- Khem Chand v State
Children of 2nd wife can claim maintenance.
- Divorced women are still considered wife for the purpose of this
Section and can claim maintenance as long as she remains unmarried.
-Wife’s inability to maintain herself is a condition
precedent to granting maintenance.
-Unable to maintain herself refers to the means
available to the wife while she was living with her
husband.
-Bhuvan Mohan Singh v Meena
She is entitled to lead a life in the similar manner as she
would have lived in the same house of her husband.
(b) Both legitimate and illegitimate children may claim
maintenance
- Here the basis is paternity irrespective of legitimacy
- Paternity shall be established.
- Mother’s remarriage cannot affect the child’s right to claim
maintenance.
(c) Legitimate or illegitimate child (not being a married
daughter) who has attained majority and is unable to maintain
himself or herself by reason of physical or mental abnormality
may claim maintenance.
(d) His father or mother unable to maintain himself or herself.
Case- Vijaya Arbat v Kashirao
The word “his” in clause (d) of Sec. 125 includes both male and female
children. Therefore, married daughter is liable to maintain her parents.

- JMFC may pass order for monthly maintenance on proof of neglect.

- They may pass interim order also.
- Interim application must be disposed off within 60 days.
Cases

• Sanjivini Ramachandra Kondakar v Ramachnadra

Bhimrao Kondakar
If the wife is living in adultery, then it is a ground for
refusal of maintenance.
• Dr Swapan Kumar Banerjee v State of West Bengal
If wife is living separately without any reasonable
ground, then it is a ground for refusal of maintenance
for wife.
 Rajnesh v Neha - Facts
• The Respondent (wife) left the matrimonial home, shortly after the birth of the son.
• The wife then filed an application for interim maintenance u/S. 125 Cr.P.C. on behalf
of herself and the minor son.
• The Family Court vide a detailed Order awarded interim maintenance of Rs.15,000
per month to the wife and Rs.5,000 per month as interim maintenance for the son
from 01.09.2013 to 31.08.2015 and Rs. 10,000 per month from 01.09.2015 onwards
till further orders were passed in the main petition
• The Appellant (husband) challenged the Order of the Family Court vide Criminal Writ
Petition filed before the Bombay High Court. The High Court dismissed the Writ
Petition and affirmed the Judgment passed by the Family Court.
• Aggrieved with the order of the Hight Court, the husband appealed before the
Supreme Court.
• SC affirmed the Judgment and order passed by the Family Court,
affirmed by the Bombay High Court, for payment of interim
maintenance @ Rs.15,000 p.m. to the wife, and Rs.10,000 p.m. to the
son
• The husband was directed to pay the entire arrears of maintenance @
Rs.15,000 p.m., within 12 weeks from the date of this Judgment, and
continue to comply with this Order during the pendency of the
proceedings u/S. 125 Cr.P.C. before the Family Court
• If the husband failed to comply with the aforesaid directions of this
Court, it would be open to the respondents to have the Order
enforced u/S.128 Cr.P.C., and take recourse to all other remedies
which are available in accordance with law.
Given the backdrop of the facts of the present case, which
revealed that the application for interim maintenance had
remained pending before the Courts for 7 years, and the
difficulties encountered in the enforcement of orders passed
by the Courts, as the wife was constrained to move successive
applications for enforcement from time to time, SC deemed it
appropriate to frame guidelines on the issue of maintenance,
which would cover overlapping jurisdiction under different
enactments for payment of maintenance, payment of Interim
Maintenance, the criteria for determining the quantum of
maintenance, the date from which maintenance is to be
awarded, and enforcement of orders of maintenance.
 SC Guidelines
Issue of overlapping jurisdiction
• To overcome the issue of overlapping jurisdiction, and avoid conflicting
orders being passed in different proceedings, SC provided the following
directions, so that there is uniformity in the practice followed by the Family
Courts/District Courts/Magistrate Courts throughout the country:
• where successive claims for maintenance are made by a party under
different statutes, the Court would consider an adjustment or setoff, of the
amount awarded in the previous proceeding/s, while determining whether
any further amount is to be awarded in the subsequent proceeding
• it is made mandatory for the applicant to disclose the previous proceeding
and the orders passed therein, in the subsequent proceeding
• if the order passed in the previous proceeding/s requires any modification
or variation, it would be required to be done in the same proceeding.
• Payment of Interim Maintenance
The Affidavit of Disclosure of Assets and Liabilities, shall
be filed by both parties in all maintenance proceedings,
including pending proceedings before the concerned
Family Court / District Court / Magistrates Court, as the
case may be, throughout the country.
• Date from which maintenance is to be awarded
SC made it clear that maintenance in all cases will be
awarded from the date of filing the application for
maintenance.
Criteria for determining the quantum of maintenance
• For determining the quantum of maintenance payable to an applicant, the
Court shall take into account the following factors:
• the status of the parties
• reasonable needs of the wife and dependent children
• Age and employment of the parties
• Right to residence
• Serious disability or ill health
• whether the applicant is educated and professionally qualified
• whether the applicant has any independent source of income
• whether the income is sufficient to enable her to maintain the same
standard of living as she was accustomed to in her matrimonial home
• whether the applicant was employed prior to her marriage; whether
she was working during the subsistence of the marriage
• whether the wife was required to sacrifice her employment
opportunities for nurturing the family, child rearing, and looking after
adult members of the family; reasonable costs of litigation for a non-
working wife.
The aforesaid factors are however not exhaustive, and the concerned
Court may exercise its discretion to consider any other factor/s which
may be necessary or of relevance in the facts and circumstances of a
case.
• Enforcement / Execution of orders of maintenance
For enforcement / execution of orders of maintenance,
it was directed that an order or decree of maintenance
may be enforced under:
-Section 28A of the Hindu Marriage Act, 1956
-Section 20(6) of the Domestic Violence Act and
-Section 128 of Cr.P.C., as may be applicable.
-The order of maintenance may be enforced as a money
decree of a civil court as per the provisions of the CPC,
more particularly Sections 51, 55, 58, 60 read with
Order XXI.
 Section 126 of CrPC
• 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 proceed 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 at 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.
Section 127- Alteration of allowance

• (1)- The Magistrate may make an alteration to the monthly allowance

payable as maintenance or interim maintenance if there is a change in
circumstances.
• (2) The Mag. May cancel or vary the order made under Sec. 125 as a
consequence of any decision of a competent civil court.
• (3) if the order was passed in favor of the wife, magistrate can cancel the
order from the date of her remarriage.
- The order can also be cancelled if she has received a lump sum under
customary law applicable to the parties was payable on divorce.
- The Magistrate may cancel the order if the woman has obtained a divorce
from her husband and has voluntarily surrendered her right to maintenance
or interim maintenance.
(4)Civil court shall take into account allowance made under Section 125.
Section 128- Enforcement of order of maintenance
• A copy of the order of maintenance or interim maintenance and
expenses of proceedings, as the case may be, shall be given without
payment to the person in whose favor it is made, or to his guardian, if
any, or to the person to whom the allowance for the maintenance or
the allowance for the interim maintenance and expenses of
proceeding, as the case may be, 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 non-payment of the allowance, or as
the case may be, expenses, due.