CrPC Sections 125 and 126: Maintenance of Wives, Children and Parents
Sections 125 and 126 of the Code of Criminal Procedure, 1973 formed Chapter IX of the CrPC and provided a summary remedy for maintenance together with the procedure for deciding such claims. This article explains these provisions as they applied before the Bharatiya Nagarik Suraksha Sanhita, 2023 came into force.
Section 125 CrPC: Order for Maintenance
Section 125 empowered a Magistrate of the first class, on proof of neglect or refusal by a person having sufficient means, to order monthly maintenance for specified dependants who were unable to maintain themselves.
Who could claim maintenance?
- A wife who was unable to maintain herself.
- A legitimate or illegitimate minor child, whether married or unmarried, unable to maintain itself.
- A legitimate or illegitimate child who had attained majority, other than a married daughter, where physical or mental abnormality or injury prevented self-maintenance.
- A father or mother unable to maintain himself or herself.
Meaning of "wife": For this Chapter, the statutory explanation included a woman divorced by, or who had obtained a divorce from, her husband and who had not remarried.
Meaning of "minor": The provision referred to minority under the Indian Majority Act, 1875.
Interim maintenance and proceeding expenses
During a pending maintenance proceeding, the Magistrate could order reasonable interim maintenance and expenses of the proceeding. The statute stated that an application for interim maintenance and expenses should, as far as possible, be disposed of within sixty days from service of notice.
Date from which maintenance could be payable
The allowance for maintenance, interim maintenance and proceeding expenses could be made payable from the date of the order or, where the Magistrate so directed, from the date of the application.
Enforcement for non-payment
If an ordered person failed without sufficient cause to comply, the Magistrate could issue a warrant to levy the amount in the manner provided for levying fines and could impose imprisonment for the unpaid portion in accordance with Section 125(3). The proviso required an application for recovery of an amount due to be made within one year from the date on which that amount became due.
When a wife could be disentitled
Section 125(4) excluded maintenance for a wife who was living in adultery, who without sufficient reason refused to live with her husband, or where the spouses were living separately by mutual consent. Section 125(5) provided for cancellation of an existing order on proof of the statutory disqualifying circumstances.
Offer to maintain the wife in the matrimonial home
Where the husband offered to maintain his wife on condition that she lived with him and she refused, the Magistrate could consider her stated grounds and could still make an order where there was just ground for refusal. The statutory explanation treated the husband's marriage with another woman or keeping a mistress as just ground for the wife's refusal to live with him.
Section 126 CrPC: Procedure for Maintenance Proceedings
Section 126 prescribed where proceedings under Section 125 could be instituted and how evidence was to be recorded.
Territorial jurisdiction
Proceedings could be taken in a district where the person against whom maintenance was claimed was present, where he or his wife resided, or where he last resided with his wife or, as applicable, with the mother of the illegitimate child.
Recording of evidence
Evidence was ordinarily required to be taken in the presence of the person against whom a maintenance order was proposed. If personal attendance had been dispensed with, evidence could be taken in the presence of the person's pleader and recorded in the manner prescribed for summons cases.
Ex parte proceedings
If the Magistrate was satisfied that the respondent was wilfully avoiding service or wilfully neglecting to attend court, the matter could be heard and determined ex parte. An ex parte order could be set aside for good cause on an application made within three months from its date, subject to such terms, including costs, as the Magistrate considered just.
Costs
Under Section 126(3), the court could make such order regarding costs in proceedings under Section 125 as it considered just.
State Amendments Reflected in the CrPC Text
The CrPC text also contains State-specific amendments concerning maintenance. The earlier page reproduced amendments for Madhya Pradesh, West Bengal and Maharashtra under Section 125 and for Andhra Pradesh and Telangana under Section 126. Because State amendments can affect the applicable text, the relevant State law should be checked for a proceeding governed by the pre-BNSS regime.
Corresponding Provisions under BNSS
For orientation only, Section 125 CrPC corresponds to Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023, while Section 126 CrPC corresponds to Section 145 BNSS. The present article remains a CrPC reference for the legal position before implementation of BNSS.