Can a husband be imprisoned under both Section 125 CrPC and Domestic Violence Act simultaneously?

Great question — let’s carefully explain this in detail because it involves an intersection of two different legal mechanisms for maintenance in India. I’ll clarify both laws separately first, then address whether simultaneous imprisonment is legally possible, and under what circumstances.

Can a Husband Be Imprisoned Under Both Section 125 CrPC and Domestic Violence Act Simultaneously?

Technically yes, but practically it’s unlikely to happen simultaneously for the same defaulted maintenance amount, because the courts aim to avoid double jeopardy for the same liability.
However, if there are separate maintenance orders under both provisions, and the husband defaults on both independently, then imprisonment under both can legally follow, though courts usually harmonize enforcement to avoid unjust hardship.

Legal Provisions Explained:

1. Section 125 of the Code of Criminal Procedure (CrPC), 1973

  • Section 125 CrPC allows a wife (legally married), child, or parent to claim monthly maintenance if they are unable to maintain themselves.
  • On default of payment without sufficient cause:
    • Under Section 125(3) CrPC, the court can sentence the defaulter to simple imprisonment for a term which may extend to one month for each month’s default, or until payment is made.
  • Recovery mechanism:
    • Notice to defaulter → warrant for recovery/attachment → possible imprisonment.

2. Protection of Women from Domestic Violence Act (PWDVA), 2005

  • Under Section 20(1)(d) of the Domestic Violence Act, the court can direct the husband to pay maintenance to the wife (and children, if any).
  • If the husband violates a maintenance order under this Act:
    • Under Section 31 of the PWDVA, violation of a protection or monetary relief order is a criminal offence punishable with:
      • imprisonment up to one year, and/or
      • fine up to ₹20,000.
  • Recovery mechanism:
    • Execution of monetary order → possible punishment for breach of court’s protection order.

Can Both Imprisonments Be Imposed Simultaneously?

In theory:

  • If a husband is under separate orders from:
    • A Magistrate under Section 125 CrPC for ₹5,000 per month maintenance.
    • And another order from a Magistrate under the Domestic Violence Act for ₹5,000 per month maintenance.
  • And he defaults on both without sufficient cause, both courts can independently take action for non-compliance.

But — important limitations apply:

  • Indian law upholds the principle of no double jeopardy under Article 20(2) of the Constitution and Section 26 of the General Clauses Act, 1897 — a person cannot be punished twice for the same offence.
  • If the liabilities under both orders are for the same maintenance amount for the same period — dual imprisonment for the same default is legally improper.
  • However, if both are independent maintenance orders (e.g. one for the wife under CrPC, and one for a child or different component under PWDVA) — separate consequences can legally follow.

How Do Courts Generally Handle This?

In practice:

  • If both courts are approached for recovery simultaneously:
    • Courts usually harmonize or consolidate the recovery proceedings.
    • The higher court (Sessions/Family Court) may issue directions to prevent double jeopardy.
    • The Magistrate may adjust or stay proceedings in one matter if satisfaction of the maintenance order is proved in the other.

Example:
If a husband defaults ₹10,000 under a Section 125 CrPC order and ₹5,000 under a Domestic Violence Act order:

  • Separate imprisonment terms can be ordered if amounts and periods differ.
  • If for the same liability — courts ensure one mode of recovery or punishment is enforced.

FAQs on This Topic:

Can a wife file maintenance under both Section 125 CrPC and the Domestic Violence Act?

Yes. Both remedies are independent, and she can claim maintenance under both, but recovery and enforcement are usually harmonized.

If imprisonment is ordered under one, can it bar proceedings under the other?

No. Each proceeding is independent. But if for the same maintenance amount and period, courts coordinate to avoid double punishment.

What if husband pays in one court — will it discharge his liability in the other?

Yes, if both amounts pertain to the same maintenance liability and period. Proof of payment before one court can be presented in the other to avoid or terminate imprisonment proceedings.

Is imprisonment for non-payment of maintenance automatic?

No. The defaulter must first be given an opportunity to show cause for non-payment. Imprisonment is a last resort.

Conclusion:

While both Section 125 CrPC and the Domestic Violence Act allow for imprisonment in case of default in maintenance, simultaneous imprisonment for the same liability is legally impermissible.
However, if there are independent, non-overlapping maintenance orders under each law for different purposes or beneficiaries, simultaneous enforcement and even imprisonment can legally follow.

In practice, courts usually harmonize proceedings to avoid undue hardship and injustice while ensuring maintenance rights are protected.

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.

Adcocate J.S. Rohilla (Civil & Criminal Lawyer in Indore)

Contact: 88271 22304

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