Order for maintenance of wives, children and parents :
Section – 125. (1) If any person having sufficient means neglects or refuses to maintain—
| (a) | his wife, unable to maintain herself, or | |
| (b) | his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or | |
| (c) | his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or | |
| (d) | his father or mother, unable to maintain himself or herself, |
a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate 1[***] as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct :
Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means :
2[Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct :
Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.]
Explanation : For the purposes of this Chapter,—
| (a) | “minor” means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is deemed not to have attained his majority; | |
| (b) | “wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. |
1[(2) Any such allowance for the maintenance or interim maintenance and expenses of proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.]
(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month’s allowance 2[for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made :
Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due :
Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.
Explanation : If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him.
(4) No wife shall be entitled to receive an allowance 2[for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.
(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.
STATE AMENDMENTS
MADHYA PRADESH
■ Section 125
| – | For the marginal heading, the following marginal veading shall be substituted, w.e.f. 26-11-2004 namely :— | |
| “Order for maintenance of wifes, children, parents and grandparents.”—Vide Madhya Pradesh Act No. 15 of 2004. |
■ Section 125(1)
| – | For the words “five hundred rupees” the words “three thousand rupees” shall be substituted.—Vide Madhya Pradesh Act No. 10 of 1998. | |
| – | After clause (d), the following clause shall be inserted, w.e.f. 26-11-2004 namely :— | |
| “(e) his grandfather, grandmother unable to maintain himself or herself.” – Vide Madhya Pradesh Act 15 of 2004. | ||
| – | In the existing para, for the words “a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding three thousand rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct”, the words “a Magistrate of the first class may upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father, mother, grandfather, grandmother at such monthly rate, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct” shall be substituted, w.e.f. 26-11-2004 – Vide Madhya Pradesh Act 15 of 2004. | |
| – | After the existing first proviso, the following proviso shall be inserted, w.e.f. 26-11-2004 namely :— | |
| “Provided further that the relatives in clause (e) shall only be entitled to monthly allowance for maintenance if their sons or daughters are not alive and they are unable to maintain themselves.”—Vide Madhya Pradesh Act No. 15 of 2004. |
MAHARASHTRA
■ Section 125(1)
| – | for the words “not exceeding five hundred rupees” the words “not exceeding fifteen hundred rupees” shall be substituted. – Vide Maharashtra Act 21 of 1999. | |
| – | before the existing proviso, the following provisos shall be inserted, namely:— | |
| “Provided that, the Magistrate on an application or submission being made, supported by an affidavit by the person who has applied for the maintenance under this sub-section, for payment of interim maintenance, on being satisfied that, there is a prima facie ground for making such order, may direct the person against whom the application for maintenance has been made, to pay a reasonable amount by way of interim maintenance to the applicant, pending the final disposal of the maintenance application: | ||
| Provided further that, such order for payment of interim maintenance may, in an appropriate case, also be made by the Magistrate ex parte, pending service of notice of the application, subject, however, to the condition that such an order shall be liable to be modified or even cancelled after the respondent is heard in the matter: | ||
| Provided also that, subject to the ceiling laid down under this sub-section, the amount of interim maintenance shall, as far as practicable, be not less than thirty per cent of the monthly income of the respondent.” – Vide Maharashtra Act 21 of 1999. | ||
| – | in the existing proviso, for the words “Provided that” the words “Provided also that” shall be substituted. – Vide Maharashtra Act 21 of 1999. |
■ Section 125(2A)
| – | After sub-section (2), the following sub-section shall be inserted, namely:— | |
| “(2A) Notwithstanding anything otherwise contained in sub-sections (1) and (2), where an application is made by the wife under clause (a) of sub-section (1) for the maintenance allowance, the applicant may also seek relief that the order may be made for the payment of maintenance allowance in lump sum in lieu of the payment of monthly maintenance allowance, and the Magistrate may, after taking into consideration all the circumstances obtaining in the case including the factors like the age, physical condition, economic conditions and other liabilities and commitments of both the parties, pass an order that the respondent shall pay the maintenance allowance in lump sum in lieu of the monthly maintenance allowance, covering a specified period, not exceeding five years at a time, or for such period which may exceed five years, as may be mutually agreed to, by the parties.” – Vide Maharashtra Act 21 of 1999. |
■ Section 125(3)
| – | In sub-section (3),— |
| (i) | after the words “so ordered” the words, brackets, figures and letter “either under sub-section (1) or sub-section (2A), as the case may be,” shall be inserted. – Vide Maharashtra Act 21 of 1999. | |
| (ii) | after the words, “each month’s allowance” the words “or, as the case may be, the lump sum allowance to be paid in lieu of the monthly allowance” shall be inserted – Vide Maharashtra Act No. 21 of 1999. |
RAJASTHAN
■ Section 125(1)
| – | For the words “five hundred” occurring after the words “at such monthly rate not exceeding” and before the words “rupees in the whole” the words “two thousand five hundred” shall be substituted – Vide Rajasthan Act No. 3 of 2001. |
TRIPURA
■ Section 125(1)
| – | For the words “five hundred rupees” the words “one thousand five hundred rupees” shall be substituted – Vide West Bengal Act 25 of 1992. |
WEST BENGAL
■ Section 125(1)
| – | For the words “five hundred rupees”, the words “one thousand and five hundred rupees” shall be substituted – Vide West Bengal Act No. 25 of 1992. | |
| – | After the existing proviso the following proviso shall be inserted :— | |
| “Provided further that where in any proceeding under this section it appears to the Magistrate that the wife referred to in clause (a) or the minor child referred to in clause (b) or the child (not being a married daughter) referred to in clause (c) or the father or the mother referred to in clause (d) is in need of immediate relief for her or its or his support and the necessary expenses of the proceeding, the Magistrate may, on the application of the wife or the minor child or the child (not being a married daughter) or the father or the mother, as the case may be, order the person against whom the allowance for maintenance is claimed, to pay to the petitioner, pending the conclusion of the proceeding pending the conclusion of the petition, pending the conclusion of the proceedings, and monthly during the proceeding such allowance as having regard to the income of such person, it may seem to the Magistrate to be reasonable.” – Vide Act No. 25 of 1992. | ||
| – | The words “not exceeding one thousand and five hundred rupees” shall be omitted.—Vide Act No. 33 of 2001. |
COMMENTS
JOINT COMMITTEE OF PARLIAMENT
Maintenance to wife – As regards wife, the Joint Committee of Parliament has observed :
| i. | “In the case of wife, the order can be passed only if she is unable to maintain herself. Having regard to the object behind these provisions, which is mainly to prevent vagrancy, there is, in the Committee’s opinion, no need to compel the husband to pay maintenance to a wife who is possessed of sufficient means.” [see sub-section (1)(a).] | |
| ii. | “The benefit of the provision should be extended to a woman who has been divorced from her husband, so long as she has not remarried after the divorce. The Committee’s attention was drawn to some instances in which, after a wife filed a petition under this section on the ground of neglect or refusal on the part of her husband to maintain her, the unscrupulous husband frustrated her object by divorcing her forthwith thereby compelling the Magistrate to dismiss the petition. Such divorce can be made easily under the personal laws applicable to some of the communities in India. This causes special hardship to the poorer sections of the community who become helpless. The amendments made by the Committee are aimed at securing social justice to women in our society belonging to the poorer classes.” [see Explanation (b) to sub-section (1) of section 125 and section 127(3).] |
Maintenance to daughters – As regards married daughters, the Joint Committee of Parliament has observed :
“The Committee is of opinion that a married daughter should not be entitled to an order under this section if she has attained majority. In such cases the responsibility of maintaining her should be that of the husband and not of the father. In the case of a minor married daughter who usually resides with her parents, the father may be made liable to pay maintenance until she attains majority.” [see proviso to sub-section (1) of section 125.]
Maintenance of indigent parents – The old section 488 did not cover indigent parents. The Law Commission emphasised that the object of section 488 (old), viz., to prevent vagrancy was relevant in the case of indigent parents also. It observed : “The principle of section 488 is essentially one of socialism, and ought to be given a wide scope”. The Joint Committee of Parliament in extending the scope of the section to indigent parents observed :
“The Committee considers that the right of the parents not possessed of sufficient means to be maintained by their son should be recognised by making a provision that where the father or mother is unable to maintain himself or herself, the order for payment of maintenance may be directed to a son who is possessed of sufficient means. If there, are two or more children, the parents may seek the remedy against any one or more of them.”
The precise scope of the extended provision has been discussed by the Law Commission as follows :
“We may note that under the Hindu Adoptions and Maintenance Act [section 20 of the Hindu Adoptions and Maintenance Act, 1956], a Hindu is bound to maintain his or her aged or infirm parents so far as the parent is unable to maintain himself or herself out of his or her own earnings or other property. Under the Muslim law [Tyabji, Muslim Law (1958), page 279, para 330] also, there is an obligation to maintain one’s ‘necessitous parents’, if one has the means, and this obligation rests in equal shares upon children of both sexes. Hence the proposed amendment will not cast any new obligation. We may add that the proposed amendment does not imply that the parents will have a right to separate maintenance. Whether there is sufficient reason for a claim for separate maintenance by the wife is even now determined by the court, and the same will be the position as regards the right of the parents.”
As stated above, section 125 has made a number of changes in the old law relating to payment of maintenance under the Code. The new provisions may further be elucidated by reference to case law on the subject.