Maintenance under Indian Criminal Law

Introduction

Maintenance is financial support provided to a wife, children or parents who cannot maintain themselves. Sections 125 to 128 of the Code of Criminal Procedure, 1973 (CrPC), provide a legal remedy to dependants who are neglected by a person with sufficient means to support them. These provisions aim to prevent poverty, hunger and homelessness and ensure that dependants can meet their basic needs.

Meaning and Nature of Maintenance

The Code of Criminal Procedure, 1973, does not define the term maintenance. In general, maintenance means financial support for basic needs such as food, clothing, shelter and other necessary expenses.

Section 125 is a substantive provision (a provision that creates a legal right), even though the CrPC mainly deals with criminal procedure. It gives certain persons the right to claim maintenance if they cannot maintain themselves and the person responsible for supporting them has sufficient means but neglects or refuses to do so.

Nature and Scope

• Social purpose: Maintenance provisions help prevent hunger, homelessness and extreme poverty among dependants.
• Preventive nature: The Magistrate's role is to prevent neglect and hardship, not to punish a person merely for failing to support a dependant.
• Wide meaning: Maintenance includes reasonable support for food, clothing, shelter and other basic needs.
• Legal remedy: Eligible dependants can approach a Magistrate for an order directing the responsible person to pay maintenance.

Constitutional Basis of Maintenance

The principles behind maintenance are supported by the following provisions of the Constitution of India:

Article 15(3)

Article 15(3) allows the State to make special provisions for women and children. Maintenance provisions help protect their welfare and financial security.

Article 39

Article 39 contains Directive Principles of State Policy. It directs the State to work towards ensuring that men and women have an adequate means of livelihood and that their welfare is protected.

Article 14

Article 14 guarantees equality before the law and equal protection of the laws. Maintenance provisions aim to protect dependants who may be unable to support themselves. Their protective purpose does not, by itself, make these provisions arbitrary or unconstitutional.

Persons Entitled to Claim Maintenance

Under Section 125 CrPC, the following persons may claim maintenance if the legal conditions are satisfied.

Wife

A wife who is unable to maintain herself may claim maintenance from her husband if he has sufficient means but neglects or refuses to maintain her.

The following principles apply:

• A wife may claim maintenance even if she is a minor, subject to the applicable legal requirements.
• A legally recognised marriage is generally required for a woman to claim maintenance as a wife under Section 125.
• A divorced wife who has not remarried may claim maintenance, subject to the statutory conditions.
• A woman who is merely a mistress, without meeting the legal requirements for recognition as a wife, is not entitled to maintenance as a wife under this provision.

A wife's right to maintenance is also affected by the conditions in Section 125(4), discussed below.

Children

Section 125 provides for maintenance of legitimate and illegitimate children.

The main principles are:

• A minor child who cannot maintain itself may claim maintenance, whether the child is born within or outside a legally recognised marriage.
• A minor child may claim maintenance whether married or unmarried.
• A child who has attained majority may claim maintenance under Section 125 if unable to maintain itself because of a physical or mental abnormality or injury.
• A child who has attained majority and does not meet this disability-related condition is generally not entitled to maintenance under Section 125 merely because the child is unable to earn.
• A minor married daughter may claim maintenance from her father if she satisfies the statutory conditions. Where her husband is also a minor and cannot maintain her, the father's responsibility may continue until she attains majority.
• A child's right to maintenance is separate from the mother's right. Therefore, a child may be entitled to maintenance even if the mother is not entitled to claim it for herself.

Father and Mother

A father or mother who cannot maintain themselves may claim maintenance from a child who has sufficient means but neglects or refuses to support them.

The following principles apply:

• Both a father and a mother may claim maintenance.
• A married daughter may also be responsible for maintaining her parents if the statutory conditions are satisfied.
• The obligation is based on the parent's inability to maintain themselves and the child's sufficient means.
• The term mother includes an adoptive mother. The claim of a stepmother depends on the applicable statutory requirements and circumstances.

Conditions for Granting Maintenance

A Magistrate may order maintenance under Section 125 when the relevant legal conditions are satisfied.

Conditions Applicable to All Applicants

• Inability to maintain oneself: The person claiming maintenance must be unable to maintain themselves.
• Sufficient means: The person from whom maintenance is claimed must have sufficient means to provide support.
• Neglect or refusal: That person must have neglected or refused to maintain the applicant.

Additional Conditions for a Wife

Under Section 125(4), a wife is not entitled to receive maintenance under this provision if:

• She is living in adultery.
• Without sufficient reason, she refuses to live with her husband.
• She and her husband are living separately by mutual consent.

Whether a wife has sufficient reason to live separately depends on the facts and circumstances of the case.

Procedure for Claiming Maintenance — Section 126

Section 126 lays down the procedure for maintenance proceedings.

Where Proceedings May Be Filed

Proceedings may be brought before a Magistrate in a district where:

• The person against whom maintenance is claimed resides.
• The person claiming maintenance resides.
• The person last resided with the wife or, as applicable, with the mother of the illegitimate child.

The precise jurisdiction depends on the circumstances covered by Section 126.

Recording of Evidence

Evidence is generally recorded in the presence of the parties or their lawyers (legal representatives).

Ex Parte Order

An ex parte order is an order passed when one party is absent from the proceedings.

If the person against whom maintenance is claimed wilfully avoids receiving notice or deliberately fails to attend the hearing, the Magistrate may hear the matter and pass an ex parte order if the legal conditions are satisfied.

The person against whom the order was passed may apply to have it set aside within three months by showing good reason for not attending the hearing.

Amount of Maintenance

Section 125 does not prescribe a fixed maximum amount of maintenance.

How the Amount Is Decided

The Magistrate determines the amount based on the facts and circumstances of the case, including the needs of the person claiming maintenance and the financial means of the person required to pay.

The earlier limit of ₹500 per month was removed by the Code of Criminal Procedure (Amendment) Act, 2001.

Date from Which Maintenance Is Payable

The Magistrate may direct that maintenance be paid:

• From the date of the order; or
• From the date of the application.

The order will determine the applicable date.

Interim Maintenance

The Magistrate may order interim maintenance while the main maintenance application is pending. This provides financial support before the final decision is made.

Alteration and Cancellation of Maintenance — Section 127

A maintenance order may be changed or cancelled when the circumstances or applicable legal requirements justify it.

Alteration of the Amount

The Magistrate may increase, reduce or otherwise alter the amount of maintenance when there is a relevant change in circumstances.

For example, a significant change in the financial position of either party may justify reconsideration of the amount.

Cancellation or Termination

Depending on the circumstances and statutory requirements, maintenance may be cancelled or cease to be payable in situations such as:

• The wife is living in adultery.
• The wife refuses to live with her husband without sufficient reason.
• The parties live separately by mutual consent.
• A divorced wife remarries.
• Other legally recognised circumstances arise that affect the right to maintenance.

The legal effect depends on the specific ground and the requirements of Section 127. Divorce alone does not automatically remove every divorced wife's right to maintenance.

Enforcement of Maintenance Orders — Section 128

Section 128 deals with enforcement of a maintenance order.

A copy of the maintenance order may be supplied to the person in whose favour it was made, without charge. The order may be enforced by a Magistrate in any place in India where the person required to pay maintenance is found, subject to the requirements of the section.

Warrant for Recovery

If a person fails to pay maintenance without complying with the order, the Magistrate may issue a warrant to recover the unpaid amount in the manner provided by law for recovering a fine.

Imprisonment for Non-Payment

Subject to the statutory conditions, the Magistrate may sentence the person who fails to pay maintenance to imprisonment for up to one month for each breach, or until payment if sooner, as provided by Section 125(3).

Imprisonment does not automatically cancel the unpaid maintenance amount.

One-Year Limitation for Recovery Proceedings

An application to issue a warrant for recovery under Section 125(3) must be made within one year from the date on which the amount became due.

This time limit relates to the recovery process specified in Section 125(3).

Comparison of Sections 125 to 128 CrPC

Practical Example

Ravi earns a regular income but refuses to support his wife, who has no sufficient income to meet her basic needs. She applies for maintenance before the appropriate Magistrate.

If the Magistrate finds that she is unable to maintain herself, Ravi has sufficient means, and he has neglected or refused to support her, the Magistrate may order him to pay maintenance under Section 125, subject to the applicable legal conditions.

If Ravi fails to pay the amount ordered, the wife may seek enforcement through the procedure provided by law.

Current Legal Position

The Code of Criminal Procedure, 1973, was replaced by the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which came into force on 1 July 2024, subject to applicable transitional provisions.

Section 125 CrPC and the related provisions discussed above are relevant to cases governed by the earlier Code. For current proceedings, the applicable provisions of the BNSS and any relevant transitional rules must be considered.

Summary

• Maintenance is financial support for eligible dependants who cannot maintain themselves.
• Sections 125 to 128 CrPC deal with the grant, procedure, alteration, cancellation and enforcement of maintenance.
• A wife, eligible children, and parents may claim maintenance if the statutory conditions are satisfied.
• The person required to pay must have sufficient means and must have neglected or refused to provide support.
• The Magistrate decides the amount based on the facts and circumstances and may also grant interim maintenance.
• Section 126 deals with procedure, Section 127 with alteration or cancellation, and Section 128 with enforcement.
• A recovery application under Section 125(3) is subject to a one-year limitation from the date the amount became due.
• For current proceedings, the applicable provisions of the BNSS, 2023, and relevant transitional rules must be checked.