Exploring the Rights of Women for Maintenance Under Section 125 Cr.P.C.


This initiative is driven by the overarching objective of reinforcing societal obligations to address the issues of vagrancy and destitution, ultimately reducing the likelihood of individuals resorting to criminal activities. It emphasizes the provision of assistance without regard to personal legal considerations, ensuring a prompt and streamlined process. Acting as a provisional solution, it extends an economic safety net to those who find themselves without sufficient means for self-sustainment.

The primary beneficiaries of this program include spouses, children, and parents who may be particularly vulnerable in situations of economic hardship. By extending support to these individuals, the initiative seeks to create a comprehensive and inclusive approach to social welfare, fostering a more secure and stable environment for the entire community. The proceedings are intentionally summary, allowing for swift and effective intervention to uplift those in need and prevent the escalation of social issues stemming from destitution.

A comprehensive delineation of the term “Wife”

The term “wife” encompasses a woman who has not entered into marriage again following a divorce.

The aim is to thwart unscrupulous husbands seeking to expedite divorces easily under personal laws.

As a result, the regressive legislation, namely the Muslim Women (Protection of Rights on Divorce) Act, 1986.

The spouse is required to be a woman who is legally married

The determination of marriage legality is based on personal laws. In cases of illegality arising from bigamy, the victim bears the brunt while the wrongdoer escapes consequences. The insistence on a legal marriage poses a challenge to achieving the intended objective. Courts reject pleas of ignorance regarding the first marriage, emphasizing the paramount legislative intention. There is a pressing need to eliminate this precondition, particularly in a country where numerous marriages could be deemed illegal for various reasons. Judicial bias in favour of marriage is evident.

Extending assistance to individuals with limited resources

In the patriarchal societal framework, legislative and judicial measures dictate maintenance obligations:

  • Husbands providing for wives,
  • Fathers supporting their children, and
  • Sons taking responsibility for their parents.

The legal framework remains silent on the daughter’s liability. However, the Supreme Court, underscoring a social obligation, mandates daughters to fulfil the duty of maintaining their parents.

The assessment of the magnitude or extent

The removal of the ceiling is prompted by the dual factors of inflation and an increased standard of living. A crucial aspect in assessing the wife’s inability to maintain herself is her actual and distinct income, rather than speculative or potential earnings. When fixing the maintenance amount, it becomes imperative to go beyond merely covering her primary needs, recognizing the evolving socio-economic landscape. The retrospective implementation, starting from the date of application, is designed to account for any procedural delays and ensure fairness in addressing the financial needs of the recipient.

Furthermore, the consideration of income extends beyond personal earnings to encompass the revenue derived from the liable person’s property corpus. This comprehensive approach acknowledges the diverse sources of financial support available and seeks to provide a more accurate reflection of the liable individual’s ability to contribute to the maintenance obligation. Overall, these measures reflect an adaptive response to changing economic dynamics and a commitment to ensuring just and equitable support for those in need.

Qualification  for receiving maintenance

Living in adultery, stipulated as involving more than a solitary act, must not be utilized as a tool for harassing the wife. It is essential to recognize that the wife should not reject living with her husband without sufficient justification. Furthermore, it is noteworthy that the arrangement of the wife not residing with her husband is based on mutual consent, emphasizing the voluntary nature of the living arrangement. This legal framework seeks to strike a balance between addressing concerns related to marital misconduct and respecting the rights and choices of the individuals involved.

Process for obtaining a maintenance order

Ensuring that the designated amount is commensurate with the family’s status is a key consideration in the maintenance order process. The removal of the Rs 500/- per month ceiling and the introduction of a specific timeframe were pivotal changes enacted through the Amendment Act of 2001, reflecting an effort to adapt to evolving economic realities.

In cases where there is a breach of the maintenance order, a warrant is promptly issued to facilitate the collection of the specified amount. It’s crucial to note that the imposition of a one-month imprisonment term serves as a measure of last resort. This step is only taken when attempts to enforce compliance through asset attachment and sale prove ineffective.

The underlying principle behind resorting to imprisonment is not punitive; rather, it is intended to apply pressure for the fulfillment of the maintenance obligation. It functions as a means to emphasize the seriousness of compliance while recognizing that alternative measures may have been exhausted. This approach underscores a balanced and nuanced strategy in addressing non-compliance with maintenance orders, prioritizing the resolution of financial responsibilities without unduly penalizing the party involved.

Process for nullifying an order

The assertion that the wife is involved in adultery underscores a significant aspect in evaluating the circumstances surrounding the maintenance order. Similarly, the wife’s refusal to cohabit with her husband without substantial justification represents a pivotal factor in considering the continued applicability of the order.

Furthermore, the voluntary separation of the couple, mutually agreed upon, adds complexity to the dynamics influencing the maintenance order. The involvement of a competent civil court becomes crucial in making informed decisions regarding the order’s status.

A noteworthy condition for the cancellation of the order is the wife’s remarriage subsequent to a divorce. In such instances, the cancellation takes effect from the date of her remarriage, acknowledging the altered circumstances that warrant a re-evaluation of the maintenance arrangement.

It is equally important to highlight that the cancellation of the order is contingent upon the complete fulfilment of its terms. This emphasizes the requirement for full compliance as a prerequisite for nullifying the maintenance order, ensuring a fair and balanced approach to the legal proceedings.

Directive pertaining to the maintenance of spouses and children under Section 125 of the Code of Criminal Procedure (CrPC)

The legal framework governing maintenance orders for spouses and children, as articulated in Section 125 of the Code of Criminal Procedure, 1973, serves a specific and essential purpose. Unlike being a punitive measure for past neglect, the primary objective is to proactively prevent the occurrence of vagrancy that may result in criminal activities and dire circumstances such as starvation. The intent is to compel those with the means to support individuals who are unable to fend for themselves and possess a moral claim to such support.

It is crucial to emphasize that the provisions outlined in the Code of Criminal Procedure regarding maintenance are not confined by the personal laws of the parties involved. Instead, they are applicable across all religions, underscoring the universal nature of the legal principles governing support obligations. This approach ensures a consistent and equitable application of the law, promoting social welfare and justice irrespective of religious or personal considerations. The legal provisions aim to foster a sense of social responsibility and mitigate potential societal issues arising from destitution and lack of support.

In accordance with Section 125(1)(a) of the Code, when an individual with sufficient means neglects or refuses to support his wife, who is unable to maintain herself, a Magistrate of the first class has the authority to, upon proof of such neglect or refusal, issue an order for the person to provide a monthly allowance for the maintenance of his wife. The specified monthly rate is determined at the discretion of the Magistrate and is to be paid directly to the wife as directed by the Magistrate.

It is important to note that the term ‘wife’ within this context extends to include a woman who has been divorced by her husband or has obtained a divorce and has not remarried. The age of the wife, whether a minor or major, is not a determining factor. However, for the purposes of Section 125, a ‘wife’ is defined as a legally married woman, and the legality of the marriage is governed by the applicable personal laws.

In cases where the validity of the marriage is disputed, the applicant is required to provide evidence of the legally valid marriage. It is noteworthy that a marriage solemnized by the exchange of garlands was deemed invalid in a specific instance.

Furthermore, under Section 125(1)(a) of the Code, the grant of maintenance allowance is not automatic for every neglected wife. Instead, it is specifically intended for a wife who is unable to maintain herself, excluding those who may be managing with some difficulty. This distinction emphasizes the need for a demonstrated inability to support oneself rather than a mere inconvenience in maintaining one’s livelihood.

The criterion of being ‘unable to maintain herself’ does not necessitate an extreme condition of absolute destitution, where a woman finds herself on the streets, resorting to begging, or clothed in tattered attire, before she qualifies to submit an application under Section 125 of the Code.

If an individual is willing to fulfill his civil obligation to maintain his wife, there is neither neglect nor refusal. However, if the husband is making payments to the wife, but the amount is insufficient to cover her basic necessities of life, it constitutes a clear case of ‘neglect’ or refusal to maintain the wife, as defined in Section 125 of the Code.

In the case of Savitaben Somabhai Bhatiya v. State of Gujarat, it was emphasized that Section 125 of the Code is enacted in the interest of the wife. To avail the benefits under subsection (1)(a) of Section 125, the woman must establish her status as the wife of the concerned person.

The determination of the matter relies solely on the application of the law pertinent to the parties involved. Only when a specific relationship is established in accordance with the personal law can the maintenance application be considered valid. The applicability of Section 125 hinges on the reference to the appropriate law governing the parties.

In instances where a woman enters into marriage, following Hindu rites, with a man who has a living spouse at the time of the marriage, the marriage is deemed null and void in the eyes of the law. In such cases, the woman does not attain the legal status of a wedded wife and consequently is not entitled to the benefits under Section 125 of the Code of Criminal Procedure.

Prerequisites for the award of maintenance

Adequate financial resources for sustenance

In accordance with Section 125(1) of the Code of Criminal Procedure, the party from whom maintenance is sought must possess ample means to provide support to the individuals claiming maintenance. In this context, the term ‘means’ encompasses not only tangible assets like real property or specific employment.

For individuals who are in good health and physically capable, it is presumed that they possess the necessary means, whether in the form of tangible assets or secure employment. The term ‘sufficient means’ should not be narrowly interpreted to only include actual financial resources but should also consider earning potential.

Earning capacity, or the ability to earn, involves more than just mental or physical fitness. It encompasses factors such as employment opportunities, educational background, experience, and often requires financial resources, motivation, and proactive efforts. If an individual is in good health and physically able, it is assumed that they have the means to provide financial support to their spouse, children, and parents. Demonstrating the individual’s capacity to meet these financial obligations is crucial in determining the appropriate amount for maintenance.

Failure to provide maintenance

In accordance with Section 125(1) of the Code of Criminal Procedure, the individual from whom maintenance is sought must have either neglected or refused to maintain the individuals entitled to claim maintenance.

Neglect implies a default or omission in the absence of a demand, while ‘refuse’ denotes a failure to maintain or a denial of the obligation to maintain after a demand has been made. Neglect or refusal can be conveyed through words or actions, either expressed or implied. It extends beyond mere failure or omission, and the burden of proving neglect rests on the claimant.

The term ‘wilful negligence’ is a legal consideration, even though its determination relies on the specific circumstances of the case. ‘Wilful’ implies a deliberate, intentional, or purposeful action, indicating a synchronized intent and conduct.

In cases where there is a duty to maintain, a mere failure or omission may constitute neglect or refusal. Maintenance, in this context, encompasses the provision of suitable food, clothing, and lodging.

Financial inability of the person seeking maintenance

Given that the primary objective of Section 125 of the Code is to prevent vagrancy, the obligation to provide maintenance should apply exclusively to individuals who are incapable of supporting themselves. The incapacity of the wife to sustain herself is a prerequisite for the viability of her maintenance application.

As per Section 125(1)(a) of the Code, maintenance for a wife is permissible when she is unable to maintain herself. Maintenance, in this context, encompasses the provision of suitable food, clothing, and lodging. The expression ‘unable to maintain herself’ does not imply absolute destitution, where the individual is on the streets, begging, and in tattered clothes.

The determination of the maintenance amount should consider the standard of living of the individual in question. The maintenance awarded should enable the woman to maintain a lifestyle not significantly below the status she was accustomed to in her husband’s residence.

It is not mandatory for the wife to explicitly state that she is unable to maintain herself. Even if the wife is physically fit, adequately educated to generate income but chooses not to do so, she can still claim maintenance from her husband. However, her refusal to earn under such circumstances may impact the full amount of maintenance she is entitled to receive.

Limitation on imprisonment for failure to pay maintenance

In cases where maintenance payment is not made following the issuance of a warrant under Section 125(3) of the Code, the prescribed method for levying fines is applied. If the individual fails to respond to this warrant and does not make the required payment, the Magistrate is empowered to order imprisonment. It’s essential to note that the duration of imprisonment in such cases cannot exceed one month. This stipulation remains consistent regardless of the duration of arrears, be it twelve months or any other specified period. The limitation on the imprisonment period serves as a safeguard, ensuring a proportionate and reasonable consequence for non-compliance with maintenance obligations.


In conclusion, Section 125 of the Code of Criminal Procedure serves as a crucial legal provision aimed at preventing vagrancy and ensuring the financial well-being of individuals who are unable to support themselves. The key elements for granting maintenance include the respondent’s possession of sufficient means, their neglect or refusal to maintain the claimant, and the claimant’s demonstrated inability to maintain themselves.

The determination of maintenance is not solely based on visible means, such as tangible assets, but also considers the earning capacity of the individual. The term ‘maintenance’ encompasses appropriate provisions for food, clothing, and lodging. While the claimant need not be completely destitute to be eligible for maintenance, the standard should enable them to maintain a lifestyle consistent with their previous circumstances.

Additionally, the legal process involves the issuance of a warrant for maintenance payment, and failure to comply may result in imprisonment for a limited duration, not exceeding one month. This restriction ensures a balanced and proportionate consequence for non-payment of maintenance.

Overall, Section 125 Cr.P.C. reflects a social and legal commitment to providing support to those in need, contributing to the broader goal of ensuring social welfare and justice. The application and interpretation of this section require a nuanced understanding of the specific circumstances and legal principles involved in each case.

Aditya Pratap is a lawyer and founder of Aditya Pratap Law Offices. He practices in the realm of real estate, corporate, and criminal law. His website is adityapratap.in and his media interviews can be accessed at http://www.youtube.com/@AdityaPratap/featured. Views expressed are personal.

This article has been assisted by Shubh Kumar, a 5th year law student pursuing B.A.LL.B. from Amity Law School, Lucknow

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