Section 125 of the Criminal Procedure Code, 1973, provides that if any person having sufficient means neglects or refuses to maintain his wife or his legitimate child who is unable to maintain themselves, then such wife or child may apply to the Magistrate. Upon proof of such neglect or refusal, the Magistrate may order the person to make a monthly allowance for the maintenance of his wife or child, at a rate the Magistrate deems fit.

Elucidating the phrase "unable to maintain herself," the Apex Court has held that a wife need not be absolutely destitute to claim maintenance under Section 125 of the CrPC. The means available to a deserted wife while she was living with her husband do not include efforts made by the wife to survive.

The expression "unable to maintain herself" connotes that the wife has no other means or source to maintain herself. It has nothing to do with her professional earning capacity. This question is to be decided based on the facts and circumstances of each case.

The Supreme Court has held that the words "in the whole," occurring in Section 125 prior to the 2001 amendment, cannot be interpreted to mean that the total award for the wife, child, mother, and father together cannot exceed five hundred rupees.

Where there is a default in the payment of maintenance under this section, sending the husband to jail is not a mode of recovery or a substitute for recovery. When the Supreme Court directed the defaulting husband to be sent to jail until he makes the payment, it does not imply that he is absolved of his liability merely because he prefers to go to jail. A wife living in adultery is not entitled to maintenance, as per Section 125(4) of the CrPC. Such allegations of adultery, however, need to be substantiated by cogent evidence.

A wife who is not inclined to abide by a decree of restitution passed against her is not disqualified from receiving maintenance.

Written By: S Kundu & Associates
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