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What is Order for maintenance of wives, children and parents? What is procedure for proceedings for maintenance? Section 125 and 126 of Code of Criminal Procedure 1973

Order for maintenance of wives, children & parents and procedure are defined under Section 125 and 126 of CRPC 1973. Provisions under these sections are:

 

 

Section 125 of CRPC "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 1* * * 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:

2[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.]

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.

3[(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.]

(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 part of each months 4[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.

Explanation.-If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wifes refusal to live with him.

(4) No wife shall be entitled to receive an 5[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 favour an order has been made under this section in living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent.

STATE AMENDMENTS

Madhya Pradesh-
Amendment of Section 125.- In sub-section (1) of section 125 of the Principal Act, for the words "five hundred rupees" the words "three thousand rupees" shall be substituted.

[Vide Madhya Pradesh Act, 10 of 1998, s. 3.]

Madhya Pradesh
Amendment of Section 125.- In section 125 of the principal Act,-

(i) for the marginal heading, the following marginal heading shall be substituted, namely:-

"Order for maintenance of wives, children, parents and grand parents."

(ii) In sub-section (1), -

(a) after clause (d), the following clause shall be inserted, namely: -

"(e) his grand father, grand mother unable to maintain himself or her self.";

(b) In the existing para, for the words "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 three thousand 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", the words 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, mother, grand father, grand 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" shall be substituted;

(c) After the existing first proviso, the following proviso shall be inserted, namely:-

"Provided further that the relatives in clause (e) shall only be entitled to monthly allowance for maintenance if their sons daughters are not alive and they are unable to maintain themselves."

[Vide Madhya Pradesh Act 15 of 2004, s. 3.]

West Bengal
In Sub-section (1) of section 125 of the Principal Act, -

(1) for the words "five hundred rupees", the words "one thousand and five hundred rupees" shall be substituted;

(2) after the existing proviso, the following proviso shall be inserted:-

"Provided further that where in any proceeding under this section it appears to the Magistrate that the wife referred to in clause (a) or the minor child referred to in clause (b) or the child (not being a married daughter) referred to in clause (c) or the father or the mother referred to in clause (d) is in need of immediate relief for her or its or his support and the necessary expenses of the proceeding, the Magistrate may, on the application of the wife or the minor child or the child (not being a married daughter) or the father or the mother, as the case may be, order the person against whom the allowance for maintenance is claimed, to pay to the petitioner, pending the conclusion of the proceeding, the expenses of the proceeding, and monthly during the proceeding such allowance as, having regard to the income of such person, it may seem to the Magistrate to be reasonable.".

[Vide West Bengal Act, 25 of 1992, s. 4.]

West Bengal
In sub-section (1) of section 125 of the principal Act, as amended by the Code of Criminal Procedure (West Bengal Amendment) Act, 1992, the words "not exceeding one thousand and five hundred rupees" the proviso shall be omitted.

[Vide West Bengal Act 33 of 2001, s. 3.]

Maharashtra
Amendment of section 125 of Act 2 of 1974.-In Section 125 of the Code of Criminal Procedure, 1973, in its application to the State of Maharashtra (hereinafter referred to as "the said Code"),-

(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 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 lumpsum 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.";

(c) in sub-section (3),-

(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;

(ii) after the words "each months allowance" the words "or, as the case may be, the lump-sum allowance to be paid in lieu of the monthly allowance" shall be inserted.

[Vide Maharashtra Act 21 of 1999, s. 2]

------

1. Certain words omitted by Act 50 of 2001, s. 2 (w.e.f. 24-9-2001).

2. Ins. by s. 2, ibid. (w.e.f. 24-9-2001).

3. Subs. by s. 2, ibid., for sub-section (2) (w.e.f. 24-9-2001).

4. Subs. by s. 2, ibid., for "allowance" (w.e.f. 24-9-2001)

5. Subs. by Act 50 of 2001, s. 2, for "allowance" (w.e.f. 24-9-2001).

 

Section 126 of CRPC "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.
 

 


STATE AMENDMENT

Andhra Pradesh and Telangana.-

Amendment of section 126-In the Code of Criminal Procedure, 1973 (hereinafter referred to as the principal Act) in section 126, in sub-section (1), for clause (b), the following shall be substituted, namely:-

"(b) where he or his wife resides, or where his parents or children resides, or;"

[Vide Andhra Pradesh Act 18 of 2007, s. 2]

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