1.

Introduction

Section 125 to 128 of Cr.P.C lay provisions for maintenance of wives, children and parents.
Seetionl25 of the Code gives effect to the natural and fundamental duty of a man to maintain
his wife, children and parents so long as they are unable to maintain themselves This
provision is a measure for social justice and specially enacted to protect women and children,
(also old and infirm poor parents) and falls within the constitutional sweep ofArticle 15(3)
reinforced by Article 39.1

Prior to 1973 the place where the wife resided after desertion or divorce was not material for
granting jurisdiction to the court in a maintenance proceeding. This caused a lot of hardship
to the wifes who had to go all the way to the place where the husband resided or where they
last resided together. A recommendation was therefore made by the Law Commission to
amend the provision and remove this hardship. Consequently changes were made and the
present position is that proceedings under section 125may be taken against any person in any
district -(a) where he is , or (b) where he or his wife resides, or (c)where he last resided with
his wife, or as the case may be , or with the mother of even illegitimate child. Oflate , it has
been held by the Supreme Court that maintenance application may be filed in any court
where husband or wife is residing even temporarily (but not casually).

1
Ramesh Chandra Kaushal v. Veena Kaushal, AIR 1978 SC 1807; Chiguruupari Bambasiva Rao v. Chigurupati
Vijayalakshmi, (1997) 11 SCC 84: (1998) 9 JT 482,. Sriram Mamkyama v. Sriram Appoji, 1992 CrLJ 1794
(On).
2. Application

Its provisions apply and are enforceable whatever may be the personal law by which the
persons concerned are governed 2 But the personal law of the parties is relevant for deciding
the validity of the marriage and therefore cannot be altogether excluded from
consideration.3The Supreme Court had held that s. 125 was applicable to all irrespective of
their religion. It was, therefore, applicable to Muslim women also. 4 However, thereafter
Parliament passed a Muslim Women's (Protection ofRights on Divorce) Act, 1986, which
provides other remedies for Muslim women and allows them to use the remedy provided by
s. 125 only ifthe husband consents to it. In the absence of a declaration by the husband, that
he would prefer to be governed by sections 125 to 128 and not under section 5 of the 1986
Act, the divorced Muslim wife was not granted maintenance. 5

This section has nothing to do with conjugal rights but deals with maintenance only. 6 It only
provides a speedy remedy against starvation for a deserted wife or child or parents. It
provides for a summary procedure which does not cover entirely the same ground as the civil
liability of a husband or father or son under his personal law to maintain his wife or child or
parents. When substantial issues of civil law are raised between the parties their remedy lies
in Civil Court.7 It has no relationship to the personal law of the parties. 8

Chapter IX is a self-contained one and the relief given under it is essentially of a civil nature.
The findings of a Magistrate under this Chapter are not final and the parties can legitimately
agitate their rights in a Civil Court. 9

This remedy is open to a wife or child either legitimate or illegitimate. The mere existence of
a decree of a Civil Court awarding maintenance to a wife does not oust the jurisdiction of a
Magistrate to make an order under this section on the application of the wife. The Magistrate,
however, in such a case, should make it clear in his order that anything paid under the decree

2
Nanak Chand v. Chandra Kishore, AIR 1970 SC 446 : 1970 Cr LJ 522; Maung Tin v. Ma Hmin, (193) 11 Ran
226 (FB) ; R. Begum v. M.N. Motialla, 1989 Cr LJ NOC 155 (Ori.)
3
Yamunabai v. Anantrao, 1988 Cr. LJ 793 : AIR 1988 SC 644.
4
Mohd. Ahmed Khan v. Shah Bano Begum, 1985 Cr LJ 875 : AIR 1985 SC 945; Bai Tahira v. Ali Hussain
Fissali 1979 Cr LJ 151 : AIR 1979 SC 362; Mohd. Yameen v. Shamin Bano, 1984 Cr JL 1297 (All)
5
Mohd. Umar Khan v. Gulshan Begum, 1992 Cr LJ 899 (MP); U.K. Behamani v. Fatimunnisa, 1990 Cr LJ
1364 (AP); R. Begum v. Mh. Motikillah, 1989 Cr LJ NOC 155 (Ori); Begum Bibi v. A.R. Khan, 1995 Cr. JL
604 (Ori.)
6
Daulat, (1947) Nag 979; Chand Begum v. Hyderbaig., 1972 Cr. JL 1270.
7
Ranchhoddas Narottamdas, (1948) 50 Bom LR 281 : (1948) Bom 380, dissenting from Chantan v. Mathu,
(1915) 30 Mad. 957
8
Nanak Chand v. Chandra Kishore, AIR 1970 SC 446 : 1970 Cr. JL 522.
9
Nandlal Misra v. K.L. Misra, (1960) 3 SCR 431 : AIR 1960 SC 882 : 1960 Cr LJ 1246.
ofthe Civil Court would be taken into account against anything which he may order to be
paid.10 However it is noted that an application of the wife under section 125 was dismissed
because the civil court had held under the matrimonial law that the wife was not entitled to
maintenance.11

10
Taralakshmi, (1938) 40 Bom LR 1103 : AIR 1938 Bom 499.
11
Murlidhar v. Pratibha, 1986 Cr LJ 1216 (Bom).