Maintenance means to financially support one spouse to another. But it not
only limits one's spouse but also to support his or her children or parents. In india there are various laws related to maintenance like maintenance under
marriage Act 1955, maintenance under Hindu Adoption and maintenance Act 1956,
Maintenance under Muslim personal law, maintenance under Muslim women (
protection of rights on Divorce ) Act 1986, special marriage Act 1954, Domestic
Violence Act 2005, Parsi Act, Christian Act etc. Maintenance is a most essential
requirement if the spouse or parents or children are not capable of maintaining
himself or herself and another party from whom maintenance claimed is capable to
Maintenance Under Code Of Criminal Procedure
We see in above that there are numbers of personal law under which Maintenance
can be claimed, but by that person who belongs that on whose these personal law
applicable like for example : under Hindu law only Hindu can claim for
maintenance and under Muslim personal law only Muslim can claim for maintenance
and under special marriage Act, only that person who have done inter-religion
marriages etc. Like this. And a Hindu can not claim maintenance under Muslim
nor Muslim can claim in Hindu personal law.
So finally we come to the CrPC ( code of criminal procedure 1973 ). Under
Code Of Criminal Procedure 1973
there are also provisions related Maintenance From
Section 125 to 128. Maintenance under CRPC is secular in nature and it is
applicable to all irrespective of their religions. So under Section 125 of CRPC
any person belongings from any religion like Hindu, Muslim, Parsi, Jew,
Christian etc can claim for maintenance under this Section.
Who Can Claim For Maintenance Under Section 125 Of Crpc?
- Under Section 125 of CRPC following persons are entitled to claim
- Wife who is unable to maintain herself.
- Legitimate or Illegitimate child unable to maintain itself.
- Father or mother unable to maintain himself or herself.
Maintenance Of Wife Under Crpc
Under crpc a wife can claim for maintenance and she can from any religion
because CRPC is applicable to all religions. But under CRPC a husband can not
claim for maintenance under this Act.
The word wife under this Section includes a divorced woman and legally wedded
wife. The woman must be legally wedded by her own personal law or divorced.
Second wife or wife from void marriages is not entitled to get maintenance under
this Section but there are a few circumstances where she is entitled to get
The second wife is entitled to get maintenance under section 125 of crpc when
the man conceals from her, his first marriage and she was unaware at the time of
marriage that he has a living spouse. The second wife is entitled to get
maintenance under these circumstances.
The wife must be incapable to maintain herself if she is financially independent
or she is earning much then she can not claim for maintenance from her husband
but if she is unable to maintain herself and neglected by her husband to
maintain then she can claim for maintenance.
When Wife Can Not Claim For Maintenance?
Section 125 ( 4 ) of CRPC says that No wife shall be entitled to get maintenance, if she is living in adultery, or she refuses to live with her husband or they
are living separately by mutual consent or do remarriage. But this must be
proved by the husband to whom the maintenance is claimed.
Amount Of Maintenance?
Section 126 ( 3 ) of CRPC says that The court in dealing with application under
Section 125 shall have power to make such order as to costs as may be just.
Important Guidelines Related To Maintenance
There is a leading case which is Rajneesh V. Neha, In this case the Supreme
Court laid down some guidelines for determining maintenance in matrimonial
disputes. The Two judges Bench Justice Indu Malhotra and Justice Subbha Rao gave
Before determining the amount of maintenance the court should consider the
financial status of the both Parties.
The court should check the educational background of the parties.
The court should order to the both parties for filing an affidavit in which
they will give their details about their assets and liabilities.
The court should also check the physical and mental health of the parties.
The court also determines whether the parties have sufficient means to maintain
her or not.
Maintenance Of Children Under Crpc?
Under CRPC a legitimate or Illegitimate minor child or a child who is major but
unable to maintain itself by any physical or mental disability or a divorced
daughter can claim for maintenance from his or her father under this section.
Here the word minor means, a person has not attained the age of 18 year's and
the word illegitimate child means that he or she is born out from live-in
relationship or concubine.
Maintenance Of Parents Under Crpc
So here in CRPC, parents also claim for maintenance if they are unable to
maintain himself or herself. Parents can claim for maintenance from his or her
daughter or son. Daughter is also liable to maintain her parents. Here in
parents words also includes stepfather or stepmother or adoptive father or
adoptive mother. If stepmother is childless then she claim for maintenance from
her step son or step daughter but if she has own daughter or son then step-son
or step daughter will not liable to maintain her.
Who Will Entertain Maintenance Petition Under Crpc?
A maintenance petition under crpc will be entrained by a magistrate of first
class, and if this petition is entrained by a judicial magistrate who is below
this rank or not empowered by law then that will be considered as irregularities
under Section 461 ( g ) of CRPC.
Comparison Of Maintenance Of Crpc With Hindu Law
In Hindu law there are two Acts in which talks about the provisions of
maintenance, that is Hindu Marriage Act 1955 & Hindu Adoption And Maintenance Act 1956
Under Hindu marriage Act 1955 in section 24 & section 25 talks about the interim
maintenance & permanent maintenance, this is a alone Act in which the husband is
also entitled to get maintenance from his wife. But a husband can claim from his
wife only when he is incapable of earning due to physical or mental disability.
So maintenance under Hindu marriage act is not gender specific but maintenance
in CRPC is gender specific because in Crpc only the wife can claim not the
Under Hindu Adoption and maintenance Act 1956 section 18 talks about the
maintenance of a legally wedded wife and in section 18 a divorced wife is not
included. So under this section the wife who is continuing the marriage can
claim when she is living separately from her husband due to any reason like
husband deserted her or cruelty with her, keeping concubine in house or doing
adultery or ceasing Hindu religion etc.
Then she can claim for maintenance
under this section and one more thing in this section only Hindu wife can claim,
not any other religion wife can claim under this. So Hindu adoption and
maintenance Act is also a gender specific in this Act only the wife can claim
not the husband.
Comparison Of Maintenance Of Crpc With Muslim Personal Law
A Muslim women can claim for maintenance in these law.
Muslim personal law
Muslim women protection of rights on Divorce Act 1986
Under crpc a Muslim women can claim for maintenance if she is incapable to
maintain herself after the iddat period. There is a leading case which is Mohd.
Ahmad Khan V. Shah Bano Begum, in this case there was issue whether a Muslim
women claim for maintenance under Section 125 of crpc or not?
Then five judges Bench decided this case and C.J. Y.C chandrachud said that a
Muslim women is entitled to claim maintenance under Section 125 of crpc because
of this section is in secular character and it applicable to all religions. If
whenever there is any conflict between Muslim Personal law and CRPC then in that
time CRPc section 125 will prevail over the personal law.
There are many provisions or laws related Maintenance but that's all. Crpc is
more effective and speedy. And it is secular in nature so anyone who have
doubts regarding approach in their personal law and don't know in which personal
law they have to approach then for them CRPC is a best option.
- From the book of CRPc ( lectures on Criminal procedure ) R.V.Kelkar's 6th
Edition by K.N.Chandrasekharan Pillai
- From the Crpc Bare Act
- From the Hindu Marriage Act 1955
- From The Hindu Adoption and maintenance Act 1956