Introduction
Imagine a woman left with no income after separation, with two children to feed. Her husband, who once provided for the family, now refuses to take responsibility. She has no job, no financial support, and is worried about how to feed her children and pay the rent. The law, however, does not let her fall into complete helplessness. It steps in to ensure that no woman, child, or dependent parent is left destitute simply because the person responsible for them refuses to provide maintenance.
This moral and legal responsibility is recognized and enforced under Section 125 of the Code of Criminal Procedure, 1973 (Cr.P.C.), and now under its corresponding provision, Section 144 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, which replaced the Cr.P.C. These provisions act as a social justice measure aimed at preventing destitution and vagrancy by compelling those who have the means to support their dependents.
The Legal Foundation: Section 125 of the Cr.P.C.
Section 125 of the Cr.P.C. has always been one of the most humane and socially beneficial provisions of criminal law. It empowers the court to direct a person having sufficient means to maintain his wife, minor children, and parents if they are unable to maintain themselves. The objective of this section is not to punish but to prevent destitution and ensure social justice.
This provision recognizes that the duty to maintain dependents is not just a moral obligation but also a legal duty enforceable by the court. It ensures that a person cannot simply abandon his wife or children without providing them with the means of survival.
Replacement under BNSS: Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023
The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, which came into effect replacing the Cr.P.C., retains the same spirit and purpose of Section 125 but updates it with modernized language and procedural clarity.
Section 144 of the BNSS continues to provide for the maintenance of wives, children, and parents. It ensures that any person who has sufficient means and neglects or refuses to maintain:
- His wife who is unable to maintain herself,
- His legitimate or illegitimate minor child (whether married or not),
- His legitimate or illegitimate child (not being a married daughter) who has attained majority but is unable to maintain itself due to physical or mental abnormality or injury, or
- His father or mother who is unable to maintain themselves,
can be ordered by a Magistrate to pay a monthly allowance as maintenance.
Thus, the new Section 144 of the BNSS is essentially a continuation of Section 125 Cr.P.C. with minor structural updates, ensuring the same social objective — protection of dependents from financial hardship and neglect.
The Objective Behind Maintenance Provisions
The object of these provisions is preventive and social. The law seeks to ensure that no dependent suffers in poverty when the person who has the means to provide refuses to fulfill their responsibility.
The Supreme Court in Chaturbhuj v. Sita Bai (2008) held that the purpose of Section 125 Cr.P.C. is to ensure that a woman is not reduced to a destitute condition or forced to live a life of deprivation. It is a measure of social justice and family welfare, not merely a criminal remedy.
The maintenance provision is not punitive but remedial, ensuring that dependents receive regular financial support for sustenance.
Who Can Claim Maintenance
Under Section 125 Cr.P.C. and now Section 144 BNSS, the following categories of persons can claim maintenance:
- Wife:
- A legally wedded wife who is unable to maintain herself.
- A divorced wife who has not remarried is also entitled to claim maintenance.
- The term “wife” includes a woman who has been divorced by or has obtained divorce from her husband and has not remarried.
- Children:
- Legitimate or illegitimate minor children (married or unmarried).
- Major children (other than married daughters) who are unable to maintain themselves due to any physical or mental disability.
- Parents:
- Father or mother who cannot maintain themselves.
This broad inclusion shows that the legislature intended to extend the umbrella of protection not only to women and children but also to aging parents who might be neglected by their children.
Conditions for Granting Maintenance
To obtain maintenance under Section 125 Cr.P.C. or Section 144 BNSS, the applicant must prove:
- The person from whom maintenance is sought has sufficient means to maintain them.
- The applicant is unable to maintain themselves.
- The person has neglected or refused to maintain them despite having the means.
If these conditions are fulfilled, the Magistrate may pass an order directing payment of monthly maintenance at a rate deemed fit considering the circumstances.
Quantum of Maintenance
The amount of maintenance is not fixed by statute. It depends on various factors such as:
- The income and earning capacity of the person liable to pay,
- The standard of living of the parties,
- The needs of the wife and children,
- The number of dependents, and
- The nature of obligations on the respondent.
In Kalyan Dey Chowdhury v. Rita Dey Chowdhury (2017), the Supreme Court held that 25% of the husband’s net salary could be a reasonable benchmark for maintenance to the wife, though the amount may vary based on the facts of each case.
Procedure to Claim Maintenance
- Filing of Application:
The aggrieved person (wife, child, or parent) files an application before the Magistrate of the First Class having jurisdiction. - Notice to Respondent:
The court issues notice to the person from whom maintenance is sought. - Hearing and Evidence:
Both parties are given the opportunity to present their evidence, including income proofs, expenses, and standard of living. - Interim Maintenance:
Pending final disposal, the Magistrate may grant interim maintenance to the applicant to ensure they are not left helpless during the pendency of proceedings. - Final Order:
After considering all evidence, the court passes an order fixing the amount and date from which it is payable. - Enforcement:
If the respondent fails to comply, the court can issue a warrant for recovery or even impose imprisonment up to one month for every month’s default.
Illustrative Story: How the Law Works in Practice
Imagine a woman left with no income after separation, with two children to feed. Her husband refuses to take responsibility, saying, “You can work and earn yourself.” She approaches the Magistrate under Section 144 of the BNSS.
The court asks her to show that she has no independent income and that her husband has sufficient means. She produces evidence — her husband’s salary slips, proof of children’s school expenses, and a rent agreement showing monthly expenses.
The husband, on the other hand, argues that she left him voluntarily. But the court observes that even if she left the matrimonial home for valid reasons (such as cruelty or neglect), she cannot be denied maintenance.
The court orders the husband to pay a monthly maintenance allowance, ensuring that the woman and her children live a life of dignity. This is not charity — it is her legal right.
Maintenance as a Legal Right, Not a Mercy
Maintenance under Section 125 Cr.P.C. or Section 144 BNSS is a right, not a matter of mercy or charity. The court does not grant it as a favour; it enforces it as a duty of a person towards those who depend on them.
The Supreme Court in Bhagwan Dutt v. Kamla Devi (1975) clarified that maintenance is not just for survival but to enable the wife to live in the same standard as her husband. The intention is to prevent her from becoming destitute and to maintain her dignity and independence.
Important Judicial Precedents
- Chaturbhuj v. Sita Bai (2008) 2 SCC 316
The Supreme Court held that Section 125 Cr.P.C. provides a speedy and effective remedy to prevent destitution and starvation. A wife is entitled to maintenance if she cannot maintain herself. - Shamima Farooqui v. Shahid Khan (2015) 5 SCC 705
The Court emphasized that a husband cannot escape his obligation by pleading financial difficulty. Maintenance should be realistic, not symbolic. - Rajnesh v. Neha (2021) 2 SCC 324
The Supreme Court laid down comprehensive guidelines for determining maintenance, including disclosure of income, assets, and liabilities by both parties.
Maintenance to Divorced Women
A divorced woman who has not remarried is also entitled to maintenance under this section. This ensures that divorce does not push her into financial destitution.
In Vanamala v. H.M. Ranganatha Bhatta (1995), the Supreme Court held that a divorced wife continues to be entitled to maintenance under Section 125 if she has not remarried and cannot maintain herself.
Distinction Between Maintenance Under Personal Laws and Section 125 Cr.P.C. / Section 144 BNSS
While personal laws (like the Hindu Marriage Act or Muslim personal law) also provide for maintenance, Section 125 Cr.P.C. (and now Section 144 BNSS) has a universal application, irrespective of religion. It is a secular provision that applies to all citizens of India.
It provides a quick, summary, and inexpensive remedy compared to lengthy civil proceedings under personal laws.
Enforcement of Maintenance Orders
If a person fails to comply with the maintenance order without sufficient cause, the court can issue a warrant for recovery and may sentence them to imprisonment for up to one month for each month of default. This coercive measure ensures compliance and reinforces the seriousness of the obligation.
Conclusion
The story of the woman left alone with her children after separation is not uncommon in our society. However, the law ensures that such a woman is not left without support. Section 125 of the Cr.P.C. and Section 144 of the BNSS stand as powerful shields against abandonment and destitution. They transform what was once a moral obligation into a legally enforceable duty, ensuring that dependents are not left at the mercy of neglectful family members.
These provisions represent the spirit of social welfare embedded in our criminal justice system — that every person, regardless of gender or age, has the right to live with dignity. By enforcing maintenance, the law ensures not only the survival of dependents but also their right to live a life of self-respect and security.
Important: Kindly Refer New Corresponding Sections of Bharatiya Nyaya Sanhita 2023, (BNS); Bharatiya Nagarik Suraksha Sanhita 2023, (BNSS); & Bharatiya Sakshya Adhiniyam 2023, (BSA) for IPC; CrPC & IEA used in the article.
Disclaimer: This information is intended for general guidance only and does not constitute legal advice. Please consult with a qualified lawyer for personalized advice specific to your situation.
Advocate J.S. Rohilla (Civil & Criminal Lawyer in Indore)
Contact: 88271 22304