CLAIM OF MAINTENANCE UNDER CRIMINAL

PROCEDURE CODE

Objective of section 125 of Criminal Procedure Code

AVAILABLE TO all neglected wives, discarded divorcees, abandoned

children and hapless parents, belonging to any religion, community or
nationality or having any domicile, who can lay hand [under section 126
(l)(a), Criminal Procedure Code 1973, if husband, father or son is found
anywhere in India, the magistrate, 1st class, of the place has the jurisdiction
to entertain a petition under section 125 of the Criminal Procedure Code]
on their husbands, fathers or sons, the benign provision of section 125
which has the objective, as expressed by Krishna Iyer J. in 19791, "to ame-
liorate the economic condition of neglected wives and discarded divorcees'*.
The learned judge enjoined that such

[w]elfare laws must be so read as to be effective delivery s> stems

of the salutary objects sought to be served by the Legislature and
when the beneficiaries are weaker sections, like destitute women,
the spirit of Art. 15(3) of the Constitution must belight the
meaning of the Section. The Constitution is a pervasive omni-
presence brooding over the meaning and transforming the values
of every measure.1"

In 1882, James Fitz James Stephen, who piloted the Code of Criminal
Procedure, spoke thus of section 488 (corresponding to the present section
125), the objective of the provision being "preventing vagrancy or at
least of preventing its consequences." Then the provision was looked
upon as a legislative effort to prevent vagrancy or the consequences resul-
ting from it. In 1963 Subba Rao J., as he then was, observed that section
488 was intended "to serve a social purpose."2 In 1985, Chandrachud C.J.
observed3 that section 125 imposed on an individual obligation towards
the society to maintain some of his close relations listed therein so as to
prevent vagrancy and destitution. He also rightly said that it is a measure
which enacts a uniform law applicable to all persons belonging to any
community, caste or religion. It is essentially of a prophylactic nature and

1. Bai Tahira v. Alt Hussain Fissalli, A.I.R, 1979 S.C. 362.

l*.Id. at 363.
2. Jagir Kaur v. Jaswant Singh, A.I.R. 1963 S.C. 1521 at 1525.
3. Mohd. Ahmed Khan v. Shah Bano Begum, A.I.R. 1985 S.C. 945.
292 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 27 : 2

cuts across the barriers of religion. It is also, according to him, a moral

edict of law, and morality could not be clubbed with religion. In our
submission; section 125 is meant to serve a social, economic and
moral purpose. It is also a projection of equality of sexes and protective
discrimination in favour of weaker sections of society, viz., neglected
wives and discarded divorcees, abandoned children and needy and hapless
parents.
The provisions of section 125, though part of the criminal law, are
essentially remedial and not punitive. In the words of R. Chandra J.:

The object of a proceeding for maintenance is to prevent vagrancy

by compelling the husband or the father to support his wife or
child unable to support itself. These provisions are not in the
nature of penal provisions but are only intended for the enforce-
ment of a duty, a default in which may lead to vagrancy. The real
object is to provide food, clothing and shelter to deserted wife and
children.4

Under section 488 of the old Criminal Procedure Code deserted wives
and children were entitled to claim maintenance and the provision did not
extend to parents. Similarly, the provision was not available to a divorced
wife.5 Section 125 of the new code includes wife, divorced as well as
undivorced, minor children, legitimate or illegimate, father and mother.6

4. Naurang Singh Chuni Singh v. Sapla Devi, A.I.R. 1968 All. 412 at 413.
5. S. 488(1) ran thus: *Tf any person having sufficient means neglects or refuses to
maintain his wife or his legitimate or illegitimate child unable to maintain itself, the
District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or a Magistrate
of the fiist 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, at such monthly
rate, not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and
to pay the same to such persons as the Magistrate from time to time directs."
6. Sub. section (1) of s. 125 of the Code of Criminal Procedure 1973 runs: "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 not exceeding five hundred 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. . . .*'
1985] CLAIM OF MAINTENANCE UNDER CRIMINAL PROCEDURE CODE 293

Child

Explanation (a) to clause (1) of section 125 defines minor child in

relation to the Majority Act, 1875, i.e., a person who has not attained the
age of eighteen years. Under section 488 of the old code, the courts have
taken the view that since the word*'child" is used in conjugation with paren-
tage, it is not concerned with age. The word is used with reference to
father and there is no qualification of age. The only qualification is that
the child must be unable to maintain itself. There is no justification for
saying that the section was confined to children who were under the age of
majority.7 Under the new code a person is bound to maintain only his
minor children. But if a major son or major unmarried daughter, by
reason of any physical or mental abnormality or injury is unable to main-
tain himself or herself, the father has an obligation to maintain such a son
or daughter.8 Under the section paternity is the basis of the obligation.
It is immaterial that the child is natural born or adopted, legitimate or
illegitimate.9
When some other person is entitled to the custody of the child, such
as mother under Muslim law, or a guardian appointed by the court or
when custody is committed to the non-guardian parent of the child or to a
third person under an order of the court, the father still has the obligation
to maintain his children.10 The Bombay and the Madras High Courts
take the view that even when the father is entitled to the custody of the
child but the child in fact is with some other person, the father has the obliga-
tion to maintain his children, till he gets the custody under an order
of a competent court.11 It may be noticed that under the second proviso

7. Per S.M. Sikri L, as he then was, in Nanak Chand v. Chandra Kishore Aggarwal,
A.I.R. 1970 S.C. 446. See also Amirthammal v K. Marimuthu, A.I.R. 1967 Mad. 77,
where Natesan J. has referred to practically all the Indian cases as well as a number of
English cases and various statutory provisions using the word 'child'.
8. S. 125(l)(c).
9. In re Sheikh, 18 W.R. 28; Venkatakrishnay. Chimmukutti, I.L.R. 22 Mad. 246;
Nur Mohomedv. Bismulla Jan, I.L.R. 16 Cal. 781 (1889).
10. Sarfraz Begam v. Miran Baksh, 29 Cr. L.J. 1052 (1928); Zauhra Bi v. Muhammad
Yusaf 32 Cr. LJ. 247 (1931); In re Vaithialinga, 2 Weir 630; A. Murgesan Mudaliar v.
Sodiamma, 16 Cr. L.J. 656(1915); Md. Yusufv. Haji Adam, I.L.R. 37 Bom. 71; In re
Parathy Valappil Moidden, 14 Cr. L.J. 597 (1913); Muzaffaruddin v. Hajira, 53 Cr. L.J.
996 (1952); Allah Rakhi v. Karam Illahi, 35 Cr. LJ. 344 (1934). Among the Sunnis and
Shias, the mother is entitled to the custody of her children of tender years,
though the ages upto which the mother may have custody, vary from school to school.
See Paras Diwan, Muslim Law in Modern India (1982). Under proviso to section
6(a), of the Hindu Minority and Guardianship Act 1956, the mother is/entitled to the
custody of her children upto the age of five. See Paras Diwan, Modern Hindu Law 227
(1985).
11. Ebrahim Mahomed v. Khurshedbai, A.I.R. 1941 Bom. 267; Kuppala Krishtappa v.
Premaleelamani, A.I.R. 1942 Mad. 705; Muniammal Venkataramanachari, A.I.R. 1943
Mad. 768.
 294 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 27 : 2

to sub-section (3) of section 125, a person is not obliged to pay mainte-

nance to his wife, who on his invitation to live with him refuses to do so
without any just ground. But there is no such condition regarding
chldren or parents. In the absence of a specific provision, the view that
if a child refuses to live with his father, the latter has no obligation* to
maintain, does not lay down good law.12 Even where the mother or some
other person is keeping the child away from the father, the father has to
provide maintenance to the child. If he is keen to keep the child with him,
then he must obtain an order for custody or guardianship of the child
from the court. If it will not be so, he will be evading his obligation by
saying that since the child was not living with him, he had no obligation to
maintain it. Further, whether the child should or should not be committed
to his custody, has to be decided by a court of law, not on the basis whether
he has or has not the right to the custody, but on the basis of the welfare
of the child, which is the paramount consideration. Just because he has
not got the custody of the child, he cannot be absolved of his obligation to
maintain it.
In some early Punjab cases13 a view was taken that if the father
made an offer to maintain the child provided it lived with him, then the
court should not pass an order of maintenance if the child refuses to live
with him. A full bench of the Punjab and Haryana High Court has overruled
this view.14 The High Court has laid down the following propositions:
(a) If the child is living with the mother who is its natural guardian,
the father is bound to maintain it and it is not open to him to impose a
condition that the child must live with him.
(b) Even where the father is thechild's natural guardian, but the child is
in the custody of the mother, the father's obligation to maintain it subsists
and he cannot impose a condition requiring the child to come and live with
him in case the child has not attained the age of discretion or if it has
attained the age of discretion, it is living with the mother of its own free
will. In such a case the father should obtain a custody order from a
competent court, but till such order is obtained, he must provide main-
tenance to the child.
(c) The father's obligation to maintain the child does not cease merely
because the child has attained the age of discretion but is living with the
mother on account of natural love and affection or attachment to her.
Till the father gets the custody order in his favour, he has to maintain the
child.
The Madras High Court also takes this view.15

12. Parvathiv. Ramaswami, 2 Weir 630; Sita Devi v. Har Narain, 32 Cr. L J. 196
(1931).
13. Ralla v. Atti, 15 Cr. LJ. 529 (1914;; Sultan v. Mahtab Bibi, 27 Cr. LJ. 1319 (1926).
14. Balbir Singh v. Hardeep Singh, 82 Cr. L J . 1136 (1976).
15. Kent v. Kent, I.L.R. 49 Mad. $91; Kembu Ammal v. Ranganatham, 25 Cr. L J .
94 (1924).
1985] CLAIM OF MAINTENANCE UNDER CRIMINAL PROCEDURE CODE 295

Wife

Explanation (b) to section 125 (1) of the code defines wife so as to

include an unremarried divorced wife. Under the old code 'wife' did not
include a divorced wife, and the result was that a divorced wife was not
entitled to maintenance. This caused gross injustice in several cases.
Wherever it was possible for a husband to divorce his wife he could evade
his obligation to maintain her. This came into clear relief from cases
relating to Muslim wives. A Muslim husband could successfully defeat an
order of maintenance passed by the court under section 488 of the old
code by pronouncing divorce on her.16 In such a case she could claim the
amount of the maintenance awarded by the court only till the completion
of the period of iddaP Under the new code a divorced wife is entitled to
maintenance. In Khurshid Khan v. Husnabanuy17a it was contended that
the principle of Muslim law relating to idda entitled the divorced wife
to get maintenance only during that period and that provisions of section
125 of the code were not relevant to determine the question of mainte-
nance in respect of the parties who were governed by the Muslim personal
law. Rejecting this contention, the Bombay High Court observed that
a provision like section 125 was enacted by Parliament for Muslim wives
also as it was in regard to all other wives. Parliament has this power
under article 15. It has also power under article 44 of the Constitution
which aims at a uniform civil code. Article 125 of the new code is appli-
cable to all persons. In Bai Tahira18 Krishna Iyer J. observed that every
divorced wife, Muslim or non-Muslim, otherwise eligible, was entitled to
the benefit of maintenance allowance and the dissolution of the marriage
under personal law made no difference to this right.

Parent

Clause (d) of section 125 (1) speaks of the 'father* or 'mother', and
does not use the word parent. This means that the obligation to maintain
father or mother is only that of a legitimate son. The illegitimate son has
no obligation to provide maintenance under section 125 of the Criminal
Procedure Code. A daughter too has no such obligation, irrespective
of the fact whether she is the legitimate or illegitimate child of her
parents.

16. ShahAbuv. Ulfat Bibi, I.L.R, 19 All. 50 (.1897); Md. Ibrahim v. Jaithoon Bivi,
A.I.R. 1951 Mad. 831; Md. Shamsuddin v. Noor Jahan, A.I.R. 1955 Hyd. 144;
Ahmad Giri v. Begha, A.LR. 1955 J. & K. 1.
17. Chandbi v. Bandesha, A.I.R. 1961 Bom. 121. See also cases cited in ibid.
\la. 1976,Cr.LJ. 1584.
18. Supra note 1.
296 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 27 : 2

Quantum of maintenance and enforcement of maintenance orders

The magistrate first class, has the power to make an order for a
monthly allowance for the maintenance of the claimant (wife, child or
parent) at such rate not exceeding Rs. 500 on the whole, as he thinks fit,
and to pay the same to such person as he may from time to time direct.
The basis for the award of maintenance by the court is the neglect or
failure of a person having sufficient means to maintain his child, wife,
father or mother.19
The failure of a person, against whom a maintenance order has been
made, to comply with the order without sufficient cause, empowers the
magistrate to issue, for every breach of such order, a warrant for levying the
amount due in the manner provided for levying fines, and further to
sentence him, for the whole or any part of each month's allowance remain-
ing unpaid after the execution of the warrant, to imprisonment for a
term which may extend to one month or until the payment is made
sooner.20 The procedure for levy of fine is laid down in section 421 of the
code. The procedure for recovery of maintenance amount as fine is that
the court may issue a warrant for the levy of the amount by attachment
and sale of any moveable property belonging to a person against whom an
order for maintenance is made, or issue a warrant to the collector of the
district, authorising him to realize the amount as arrears of land revenue
from the moveable or. immoveable property, or both, of the defaulter.
But, it should be noticed that the maintenance thereby does not become
"fine" within the meaning of criminal law. It is merely made to be realis-
able in the manner fines are realised.21 The magistrate has a discretion to
follow either course.22 If on execution of the distress warrant the mainte-
nance amount remains unpaid, wholly or partly, the magistrate may issue
a body warrant, and sentence the defaulter to imprisonment for a maximum
period of one month for each month's payment in default or any surplus
fraction of a month.23 It is not necessary that the magistrate should issue
a separate warrant in regard to each month's default, and thus where
arrears of several months have fallen due, he may issue one warrant and
impose a cumulative sentence of imprisonment.24 Since the first proviso

19. Sub-sec. (1) of s. 125.

20. S. 125(3). See also Kand Lai \. Kanhaiya Lai, A.I.R. 1960 S.C. 882; Moddari
Bin v. Sukdeo Bin, A.I.R. 1967 Cal. 136: Arjttn Shankar Naik v. Sumitra, A.T.R. 1970
Goa 140.
21. See Moddari Bin, ibid.
22 Ibid.
23. See Queen Empress v. Narain, I.L.R. 9 All. 240 (1887); Emperor v. Bent, A.I.R.
1938 All. 386; Maung Tun Zan v. Ma Myaing, A.I.R. 1941 Rang. 247; Moddari, ibid ;
Jagannath Patra v. Purnamashi Saraf, A.I.R. 1968 Ori. 35.
24. Emperor v. Beni, ibid.; Karson Ramji Chawdav. State of Bombay, A.IR. 1958
Born. 99 (F B ); Kantoppa v Sharanamma, A.I.R. 1967 Mys. 81.
19851 CLAIM OF MAINTENANCE UNDER CRIMINAL PROCEDURE CODE 297

to clause (3) of section 125 lays down that no warrant can be issued for
recovery of any amount due under this section unless application is made
to the court to levy such amount within a period of one year from the
date on which it became due, the maximum sentence of imprisonment at
any time cannot be of more than one year.25 The sentence of imprison-
ment is inflicted for default of payment of the unrealized portion of main-
tence, and, therefore, imprisonment will cease upon payment of the amount
due.26
When a sentence of imprisonment is inflicted for breach of the main-
tenance order, it should not be considered that such a person is under
imprisonment in execution of the decree of any court for the payment of
money.27 The objective of proceedings for imprisonment of the defaulting
person is not to punish him for his past neglect but to use the coercive or
compulsive machinery of criminal law to compel him to pay maintenance
as ordered by the court to the needy wife, children or parents.28

Nature of proceedings

Proceedings under section 125 are not civil but criminal proceedings
of a summary nature. In the words of Dua C.J.:

[T] he proceedings envisaged by chapter XXXVI of the Code can-

not be considered to be purely civil proceedings, though the
person in default, against whom maintenance order is sought, may
not be an accused person whose examination without oath is
mandatory. . . .
Such maintenance proceedings are. . .criminalproceedings,design-
ed by way of summary process to provide to deserted wives and
neglected children adjudication of their civil right of maintenance
up to a limited amount, enforceable through criminal Courts, to
avoid the notorious delays of civil proceedings, which may still be
utilized for fuller relief under the general law in the ordinary civil
Courts.29

That the criminal proceedings under section 125 are of civil nature is
made evident by clause (3) of section 126 which empowers the court to
make such orders as to costs as may be just. Further, where the magis-
trate is satisfied that the person against whom an order for payment

25. See Allapichai v. Mohidin Bibi, I.L.R. 20 Mad. 3 (1897); Bhiku v. Zahuran, I.L.R.
25 Cal. 291; Karson Ramji, ibid; Moddari Bin, supra note 20.
26. Penubala Muni Krishnayyav. Akulamma, A.I.R. 1940 Mad. 697.
27. Ibid.
28. Sardar Muhammad v. Nur Muhummad, 18 Cr. L J, 811 (3917); Neuritg Sirgh,
supra note 4.
29. Harbhajan Kaur v. Major Sent Singh, A J.R. 19(9 Del. 29% at 3C0.
298 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 27. 2

of maintenance is proposed to be made is wilfully either avoiding

service, or neglecting to attend the court, he may proceed to hear and
determine the case ex parte. He has also the power to set aside the ex parte
order for good cause shown on an application made within three months
from the date thereof subject to such terms including terms as to payment
of costs to the opposite party as he may think just and proper.30
It is in this context that the argument advanced in some cases could be
understood that after coming into force of the Hindu Adoptions and
Maintenance Act 1956, the provision of section 488, Criminal Procedure
Code 1898 stood repealed. In Nanak Chand v. Chandra Kishore Agga?waJ,zl
Sikri J., as he then was, observed:

We are unable to see any inconsistency between the Maintenance

Act [Hindu Adoption and Maintenance Act 1956] and Section 488,
Criminal Procedure Code. Both can stand together. The Main-
tenance Act is an Act to amend and codify the law relating to
adoptions and maintenance among Hindus. The law was
substantially similar before and nobody ever suggested that Hindu
Law, as in force immediately before the commencement of this
Act, in so far as it dealt with the maintenance of children was in
any way inconsistent with section 488, Criminal Procedure Code.
The scope of the two laws is different. Section 488 provides a
summary remedy and is applicable to all persons belonging to ail
religions and has no relationship with the personal law of the
parties.32

Thus, the provision existing in any personal law regarding maintenance

of wife, children, mother and father is separate and distinct. There is
no conflict between the two provisions. A person may sue for maintenance
under section 125 of the Criminal Procedure Code. If a person has
already obtained a maintenance order under his or her personal law, the
magistrate while fixing the amount of maintenance may take that into
consideration whilefixingthe quantum of maintenance under the code.
But he cannot be ousted of his jurisdiction. Similarly, when a civil court
is called upon to adjudicate the claim of maintenance of any person, it
would take into consideration the amount of maintenance fixed by the
magistrate under section 125. Sub-section (4) of section 127 specifically
lays it down. That sub-section runs:

30. Proviso to sub-sec. (2) of s. 126.

31. Supra note 7.
32. Id. at 448. See also Purnasashi Devi v. Nagendra Nath, A.I.R. 1950 Cal. 465,
State v. Ishwarial, A.I.R. 1950 Nag. 231; Bela Rani Chatterjee v. Bhupal Chandra
Chatterjee, A.I.R. 1956 Cal. 134; Mahabir Agarwalla v. Gita Roy, 1962 (2) Cr. L J. 528,
Ram Singh v. State, A.I.R. 1963 All. 355; Nalini Ran/an v.Kiran Rani, AI.R. 1965
Pat. 442; Subhagi Devi v. Murii Pradhan, A.I.R. 1968 Pat. 139.
1985] CLAIM OF MAINTENANCE UNDER CRIMINAL PROCEDURE CODE 299

At the time of making any decree for the recovery of any main-
tenance or dowry by any person, to whom a monthly allowance
has been ordered to be paid under section 125, the Civil Court
shall take into account the sum which has been paid to, or
recovered by, such person as monthly allowance in pursuance of
the said order.

In this regard the provision of sub-section (2) of section 127 should

be noticed which lays down that "Where it appears to the Magistrate
that in consequence of any decision of a competent Civil Court, any
order made under section 125 should be cancelled or varied, he shall
cancel the order or, as the case may be, ^a^y the same accordingly."

Basis for the claim of maintenance

The basis of the relief, under section 125 of the Criminal Procedure
Code, is the refusal or neglect to maintain his wife, children, father or
mother by a person who has sufficient means to maintain them. The
criterion is not whether a person is actually having means, but if he is
capable of earning he will be considered to have sufficient means,33 The
burden of proof is on him to show that he has no sufficient means to
maintain and to provide maintenance. In Bai Tahira™ Krishna Iyer J.
very aptly said:

Moreover, the husband has not examined himself to prove that

he has been giving allowances to the divorced wife. His case, on
the contrary, is that she has forfeited her claim because of divorce
and the consent decree. Obviously, he has no case of non-neglect.
His plea is his right to ignore. So the basic condition of neglect
to maintain is satisfied. In this generous jurisdiction, a broader
perception and appreciation of the facts and their bearing must
govern the verdict not chopping little logic or tinkering with
burden of proof.35

The expression "means" in this section is not restricted to tangible

means such as existence of moveable or immoveable property but includes
earning potential or capacity to earn. An able bodied person is presumed
to be capable of earning. In In re Kandasami™ the Madras High Court
observed that a person who was in perfect health had means to maintain
his wife, and the court could pass an order against him awarding maintenance

33. Prasad Gareri v. Mt. Kesari, A.I.R. 1941 Pat. 444; In re Gulubdas Bhaidas, I.L.R.
16 Bom. 269 (1892); Sita Devi v. Har Narain, 32 Cr. L.J. 196 (1931); Gunni v. Babu Lai,
53 Cr. LJ. 1164 (1952); Graham v. Graham, 26 Cr. L J. 831 (1925).
34. Supra note 1.
35. Id. at 365.
36. 27Cr.L.J. 350(1925).
300 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 27 : 2

to his wife. A person cannot refuse to maintain his wife or child,

because his means are slender,37 or he is a professional beggar,38 or he is
in debt.39 If a person is healthy and able bodied and capable of earning,
he cannot escape the obligation by saying that he is only nineteen years of
age and has not been able to get a job.40 It is open to a person to show
that on account of some ailment, physical infirmity, accident, or prevailing
unemployment, he is in fact not capable of earning anything.41 U. Thiri
v. Ma Pwayi12 is an interesting case. In this case a Buddhist monk, in
perfect health, was presumed to have sufficient means to maintain himself
and his child. The court went to the extent of saying that if he could
not pay the amount of maintenance as ordered, because he was a monk,
then it was his duty to throw off the yellow robe and work.43
Under the provisions of section 125, if a person is not in fact main-
taining his wife, etc., it is presumed that he has "neglected" or
*'refused'* to maintain her.44 The term "neglect" is used to signify a
mere failure on the part of a person bound to maintain his wife, etc., even
when no demand is made on him by the latter. Thus, a husband may
not actually refuse to maintain his wife, but even then he will be guilty of
neglecting to maintain her wherever there is avoidance or disregard of
duty to maintain whether from heedlessness, indifference or wilfulness.
Thus "neglect" is used in a wider sense so as to include disregard of duty
to maintain whether wilful or unintentional.45 Similarly, refusal to
maintain the wife need not be express but may be inferred from the
conduct of the husband.46 Denial of paternity amounts to refusal to
maintain.47
The father's obligation to maintain his children is a continuing one
and his failure to do so for some duration also amounts to refusal to
maintain them, irrespective of the fact whether they are starving or not.48
The obligation of the father to maintain his children under section

37. In re Choklingam, 2 Weir 617.

38. In re Boya Kandamma, 2 Weir 616.
39. Valliammaiv. Dharmalinga, A.I.R. 1941 Mad. 762; In re Muni Kantivijayaji, 33
Cr. L.J. 625(1932).
40. In re Kandaswami. supra note 36. See also Prabhulal v. Parwatibai, 53 Cr. LJ. 868
(1952).
41. supra note 39; Mohd. Aliv. Sakina Begum, A.I.R. 1944 Lah. 392.
42. A.I.R. 1923 Rang. 131.
43. This view was approved by the full bench in Maung Tin v. Ma Hmin, 34 Cr, L.J.
815(1933).
44. In re Han Hun, 8 Bur. L.R. 96.
45. Ishar v. Soma Devi, A.I.R. 1959 Punj. 295.
46. Bhikaiji v. ManeckU 5 Cr. L.J. 334 (1907).
47. Prasad Gareri, supra note 33.
48. Baran v. Ma Chan, 26 Cr. L.J. 535 (1925).
1985] CLAIM OF MAINTENANCE UNDER CRIMINAL PROCEDURE CODE 301

125 is a statutory one and he cannot contract it out.49 A compromise

entered into by a guardian regarding maintenance of the minor, is not
binding on the latter, if it is not beneficial to him.50 The magistrate has
no jurisdiction to pass an order on the basis of a compromise entered
into by the parties.61 However, in Debjani v. Rasik Lai52 the Calcutta
High Court held that an order in terms of the compromise could be passed.
Of course, the court can take into consideration such compromise
and see whether an order in terms of it will be beneficial to the
child.
Under section 125 a person cannot evade maintenance on the ground
that under his personal law he has no such obligation.53 The section
provides that the basis of claiming maintenance is inability to maintain.
In respect of the claim of maintenance of the child, the means of the
mother with whom the child is living, are not to be considered.5* In
Muhammad Yar v. AH Muhammad,55 the court observed that if a child of
the age of seventeen or so is able to work or earn, then he cannot claim
maintenance. It is submitted that in the case of a minor child, its
ability to maintain itself cannot negative the father's obligation to maintain
it, unless the child is, in fact, earning and maintaining itself.
In Chantan v. C. Mathu5* the Madras High Court took the view that
if a tarward whose obligation is to maintain the child, has sufficient means
to maintain it, then it cannot be said that the child has no sufficient means
to maintain itself. It is submitted that the father's obligation to maintain
his children is a personal one and it can be avoided only if the child has
means to maintain itself. In Queen-Empress v. Ramasami51 the court
rightly said that the father's membership of the joint family is no bar
against passing a maintenance order against him. Since obligation of
the father to maintain his children is a personal one under section 125,
no order of maintenance can be passed under the section against the karta
of the joint family, whose members the minor and his father are.58
There is some controversy among the High Courts as to whether the

49. In re Alia Pichai, 2 Weir 648; Maung Tinu v. Ma HIa. Kyi, 38 Cr. LJ. 913
(1937).
50. Hildephonsurv. Malone, 1885 P.R. 13.
51. In re Kuppa Mudali, 2 Weir 630; Rama Baiv. Bhoja Rao, 1937 M.W.N. 640;
Laxmanna v. Bhojawan, 53 Cr. L.J. 1311 (1952); G. Pandariv. Parkash Rao, 53 Cr. L.J.
350 (1952); Anjayya v. Parutal, 53 Cr. LJ. 577 (1952)
52. A.I.R. 1941 Cal. 558.
53. Kariyadan Pokkar v.Kayat Beeran, I.L.R. 19 Mad. 461 (1896); Lingappa v.
Esudasan, I.L.R. 27 Mad. 13 (1904); U Thiri v. Ma Pwa Yi, 24 Cr. L J. 368 (1923).
54. MiThein v. Nga Po Nyun 15Cr. LJ. 278 (1914).
55. A.I.R. 1941 Lah. 92.
56. I.L.R. 39 Mad. 957(1915).
57. LL.R. 13 Mad. 17(1890).
58. Crown v. Miran, 1 Cr. LJ. 110 (1904); Ram Kaur v. Waryam Singh, 15 Cr. LJ.
511(\9\4);Sohnav. Kartar Kaur, 32 Cr. LJ. 1175; Hemibai v. Kundibai, A.LR. 3940
Sind 222
302 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 27: 2

word "maintenance" includes education,59 In our submission main-

teaance includes education of the children under the section And since
the total value cannot exceed Rs. 500 maintenance should include not
merely food, shelter and clothing but also education.
Since the basis for holding the husband liable for the maintenance of
his wife is the notion that there is a continuous obligation upon the
husband to support and maintain his wife, whenever he fails to do so, he is
deemed to have neglected her. Thus, proof of an actual refusal to main-
tain is not necessary. Even where a husband has paid a lump sum amount
in final settlement of her claims, he cannot escape his obligation to
maintain his wife if that money had been spent or does not yield sufficient
income.60 In short, once it is shown that the wife has been neglected
and if the husband is unable to prove that he has no "sufficient means"
the court can pass an order awarding a sum of maintenance to the wife,
unless he shows that the case falls under sub-section (4) of section 125. It
is also not necessary for the wife to prove that as a result of the husband's
refusal or neglect to provide her with maintenance she is in "destitute or
necessitous circumstances" or that "her life is endangered or her health is
injured or likely to be injured".61

Proof of marriage

It is not necessary to prove that valid ceremonies of marriage had

taken place. There is a presumption of marriage if a man and a woman
have been having cohabitation as husband and wife and have been so
treated by the society. In Sumitra Deri v. Bhikan Choudhary*1 the Supreme
Court observed that the courts below should not have ignored the fact
that parties had lived together for a decade, public record including voter's
lists described them as husband and wife and competent witnesses of the
village of the wife as also her husband had supported the factum of
marriage, the witnesses had also spoken about the reputation of the wife
being known in the locality as wife of the other party.63 It is a rebuttable
presumption. When such a presumption has arisen from evidence,
mere denial by the husband that he ever lived with her cannot

59. NgaHlav. Mi Hla, 11 Cr. LJ. 40 (1910); ^wm//v. Emperor, 25 Cr. LJ. 1249
(1924); Shwe Ba v. Ma Thein, 40 Cr. LJ. 440 (1939).
60. Ma Hnin v. Maung Myat, (1900) L.B.B. 189; Mi Le v. A^ Paw Din, (1905) U B.R
45.
61. Ambirathu v. Lakshmi Amma, (1937) M.W.N. 985; Baran, supra note 48
62. AI.R. 1985 S.C. 765.
63. After observing this the Supreme Court remanded the case to the trial court for
finding out the factum of marriage. In our submission the Supreme Court should have
decided the case in favour of the wife on these clear observations, instead of perpetuating
the agony of the wife, be it for another three months. (The Supreme Court had directed
that the magistrate should decide the case within six months of the receipt of the record
of the case).
1985] CLAIM OF MAINTENANCE UNDER CRIMINAL PROCEDURE CODE 303

rebut the presumption.** The Mysore High Court rightly observed that in
proceedings under section 488 of the Criminal Procedure Code 1898 the
standard of proof of marriage need not be so high as required in prosecu-
tions for bigamy or proceedings under the Divorce Act. Thus, even
opinion expressed by conduct of persons who had special means of know-
ledge on the subject may be sufficient to prove the fact of marriage in
proceedings under section 125 of the present code.65 It is true that where
a woman claims maintenance on the basis that she is the wife, the
burden of proof is undoubtedly on her to show that she is the lawfully
wedded wife, but the standard of proof under section 125 is very light. In
Edward Sailendra v. Snehalata™ the Calcutta High Court rightly observed that
the criminal court in proceeding under section 488 ought not to be burdened
with a decision on a point of personal law which did not ordinarily
concern it.67
It appears that even if the marriage is void a 'wife' is entitled to main-
tenance under section 125, if factum of marriage, i.e., proof of required
ceremonies and rites of marriage is established or presumption on account
of prolonged cohabitation is available.68
In this regard the provision contained in sub-section (2) of section 127
should be noticed. It lays down:

Where it appears to the Magistrate that, in consequence of any

decision of a competent Civil Court, any order made under
section 125 should be cancelled or varied, he shall cancel the order
or, as the case may be, vary the same accordingly.

One of the implications is that if the civil court declares that the
marriage is invalid on the ground of non-performance of ceremonies and
rites, the magistrate would be justified in cancelling a maintenance
order passed in favour of the "wife".

When wife's claim of maintenance may be defeated

In the following cases a wife is not entitled to maintenance under

section 125(1) of the Criminal Procedure Code:69
(a) When it is shown that she is living in adultery, it is not enough
that she has committed an act of adultery; she must be living in adultery,

64. Gokal Chandv. Parvin Kumari, A.I.R. 1952 S.C. 231; Vanajakshammav. P. Gopala
Krishna, A.I.R. 1970 Mys. 305.
65. See proviso to section 50 which lays down that such opinion shall not be sufficient
to prove marriage in proceedings under the Divorce Act or in prosecution for bigamy
under the Indian Penal Code: Vanajakshamma, ibid; K.J.B. David v. Nilamoni Devi,
A.I.R. 1953 Ori. 10; Bebi Bat v. Y. Japamony, 1967 M.L.J. 311.
66. 41 C.W.N. 898(1936-37).
67. See also K.J.B David, supra note 65.
68. Sumitra, supra note 62.
69. Sub-sec. 4 of s. 125.
304 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 27 : 2

i.e., a continuous course of adulterous life.70 Isolated acts of adultery,

even if frequent, do not amount to living in adultery, though it is not
necessary to prove that the wife is living in the house of, or with, the
adulterer.71
(b) When without sufficient reason she refuses to live with her
husband. "Sufficient reason" will be what is called "just ground" in sub-
section (3). Explanation to sub-section (3) lays down two grounds for
living separately from her husband, (i) husband has contracted a second
marriage; (even if the personal law permits polygamy, another marriage
of the husband will amount to just ground) or (//) husband keeps a mis-
tress. It is submitted that anything, which is a ground for any matrimo-
nial relief, will be a just ground for living separately.72
(c) If the parties are living separately by mutual consent,73 even if an
order of maintenance has been passed by a magistrate, he has to cancel
that order if the wife is living in adultery or the parties are living separa-
tely by mutual consent or the wife is refusing to live with her husband
without sufficient reason.74
It may happen (and it happens more often than not) that a person
offers to maintain his wife provided she agrees to live with him. In such a
case if the magistrate is satisfied that there is sufficient cause for her to
live separately, he may pass the order of maintenance.75

Forum: jurisdictional rules

Since the objective of section 125 is social, economic and moral, juris-
dictional rules are framed very widely. A wife may sue the person against
whom a claim for maintenance is made:70

(/) at any place where he is:

(ii) at the place he resides;
(Hi) at the place where applicant-wife resides;
(iv) at the place where he last resided with his wife or with the
mother of the child, in case the child is illegitimate.

The aforesaid alternative forums are available to the wife. The wife's

70. Rajaniv. Prabhakar, A.I.R. 1958 Bom. 264; Bhagwan v. Amar, A.I.R. 1971 Guj.
33; Maganlal v. Bai Dahi, A.I.R. 1971 Guj. 33.
71. Kistav.Amrithammal, A.I.R. 1938 Mad. 833; In re Fulchand, A.I.R. 1928 Bom.
59; Durghatia v. Ayodhya, A.I.R. 1953 V.P. 28.
72 See Paras Diwan, Modern Hindu Law, supra note 10 at 164-65; Paras Diwan,
Muslim Law in Modern India, supra note 10 at 87-88, 96-97; Paras Diwan, Family Law
(1983).
73. This came up in Bai Tahira, supra note 1.
74. Sub-s. (5) of s. 125 of the code
75. Id., second proviso to sub-s (3), s. 125
76 Id , s . 126(1).
1985] CLAIM OF MAINTENANCE UNDER CRIMINAL PROCEDURE CODE 305

residence or mere presence of the husband within the forum gives jurisdic-
tion to the court. The expression 'where he is* confers a fairly wide
jurisdiction. As the Supreme Court observed,77 it is not limited by the
animus manendi of the person or the duration or the nature of his stay. If
he is physically present within the district, the magistrate will have jurisdic-
tion. In fact, in Jagir Kaur, the husband had come to India on a flying
visit from Africa where he was employed since 1930. The wife's applica-
tion for maintenance filed against him in the district where he was staying
during the visit was held to be competent. In the words of the Supreme
Court: "The said Magistrate had jurisdiction to entertain the petition, as
the said proceedings can be taken against any person in any district
where he 'is'".78
Thus, what confers jurisdiction on the court is the bare physical pre-
sence of the husband at the time of filing of the petition. It may be a casual
visit or a chance encounter with him. If the wife is able to catch him. the
order passed by the magistrate will be valid and enforceable.79
The petition may also be filed on the basis of the petitioner's or res-
pondent's residence. It would appear that a child or a parent cannot file
a petition on the basis of his own residence since the words used in section
I26(l)(b) are "his wife resides". Similarly, on the basis of last residence
of the respondent with the wife, a child or a parent cannot file a petition
for maintenance, since the words in clause (c) of section 126(1) are "where
he last resided with his wife." The mother of the child, whether
legitimate or illegitimate, can also file a petition under section 125
on the basis of "residence together", as the second part of clause (c) runs
'where he last resided. . . with the mother of the illegitimate child'. This
seems to have happened because sub-section (1) is modelled on sub-
section (8) of section 488 of the old code. Only addition in the jurisdiction
is that a wife now can file a petition on the basis of her own residence.
When needy parents' maintenance was imposed as an obligation on the
son under sub-clause (d) of clause (1) of section 125, the draftsman, by the
time he reached to clause (8) of the old section 488 (which contained
jurisdictional rules), overlooked the fact that parents have also been
included, who can claim maintenance under the provision of the new
code.80 The result has been what it is. Thus, a parent can sue his son only
at the place the son is. Probably he can also sue him on the basis of
residence of his son, since in sub-clause (b) the words are where "he or
his wife resides". It would be interesting to visualize the possibility of a
parent suing his son on the basis of residence of son's wife or on the basis

77. Jagir Kaur, supra note 2 at 1525.

78. Id. at 1526.
79. Shantabai\. Vishnupant Atmaram, A.I.R. 1965 Bom. 107; Baleshwari Devi v.
Bikram Singh, A.I.R. 1968 Pat. 383.
80. S. 125U) (d) of the code.
306 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 27 : 2

of last residence together of his son and his daughter-in-law, since the
opening words of clause (1) of section 126(1) are, "proceedings under
section 125 may be taken against any person in any district". It does not
say who can take proceedings. The question is answered by sub-section
(1) of section 125 which includes father and mother as the persons who can
claim maintenance on account of their inability to maintain. Again the
words in sub-clause (d) of clause (1) of section 125 are "father or
mother". The word is not "parent". This means a parent can
claim maintenance only against his legitimate son. Again, if the open-
ing words in clause (1) of section 125 are looked into, viz., "if any person",
it may be considered to mean both a son and a daughter against whom
maintenance by the father or the mother can be claimed but in clause (d)
the word is "his"—"his father or mother"—and "his" here will not include
"her".
The term "residence" has been variously defined, but in all cases it is
a question of fact. Ordinarily 'residence' means the permanent abode or
permanent home or permanent place where a person lives, and does not
include a temporary residence.81 If a person having a permanent place where
he lives, goes to another place for a temporary stay, just for business or
health reasons, the latter place cannot be called his residence.82 However,
where the parties have not set up a permanent home at any place, then the
place where they last stayed together would be considered the place where
they resided together.83

Alteration and cancellation of maintenance order

If a change in the circumstances is shown on the part of wife, divorced

wife, child or parent, in whose favour a maintenance order has been made,
the magistrate has the power to enhance the amount of maintenance, as he
thinks fit, but in no case can the monthly rate of allowance exceed the
statutory limit of Rs. 500.84 Similarly, it seems, the amount of maintenan-
ce can be decreased if the person against whom an order of maintenance
has been passed establishes a change in his circumstances (such as
when he has retired or ailing in a hospital and cannot, therefore, afford

81. Robeyv. Robey, A.I.R. 1931 Cal. 121 (case under the Indian Divorce Act where
this word in the jurisdictional context had come for interpretation).
82. See Janak Dulariv. Narain Das, A.I.R. 1959 Punj. 50.
83. This view has been taken in matrimonial cases, both under the Indian Divorce
Act and the Hindu Marriage Act, and it is submitted that the same meaning should be
given to the words "where he last resided with his wife" in sub-clause (c) of section 126(1)
Some of these cases are: Taraw. Jaipal, I.L.R. (1946) 1 Cal. 604; Clarance v. Raicheat,
A.I.R. 1964 Mys. 67; Saroja v. Emmanuel, A.I.R. 1965 Mys. 12; Bright v. Bright, I.L.R.
36 Cal. 964 (1906) (cases under the Indian Divorce Act), Lalhthamma v. Kaman, A I.R.
1966 Mys. 179; Jagan v. Swaroop, (1972) 2 M.LJ. 71; Madhavi Sirothia v. N.N. Sirothia,
A.I R. 1974 All. 36; Jeewantiv. Kishan, A.I.R. 1982 S.C. 3.
84 S. 127(1) of the code.
1985] CLAIM OF MAINTENANCE UNDER CRIMINAL PROCEDURE CODE 307

to pay the same rate of maintenance) or change in the circumstances of the

claimant (such as wife getting a job or inheritance, or a child getting an
employment).
In the following cases, an award of maintenance made in favour of a
divorced wife may be cancelled:
(a) When the divorced wife remarries, the order of maintenance
may be cancelled from the date of remarriage.
(b) A wife in whose favour a maintenance order has been made by the
magistrate is divorced by her husband, and who has received, whether
before or after the date of the maintenance order, the whole of the sum
which under any customary or personal law applicable to the parties, may
be payable on such divorces, cancel such an order—
(/) in case where such sum was paid before such order, from the date
on which such order was made;
(ii) in any other case, from the date of the expiry of the period, if
any, for which maintenance has been actually paid by the
husband to the wife.85
(c) When the wife has obtained divorce from the husband and has
voluntarily surrendered her right to maintenance after her divorce.86
Clauses (a) and (c) present no difficulty of interpretation. Both these
eventualities are brought about by voluntary or irrevocable acts on the part
of the wife. In the former case by remarriage she forfeits her right of
maintenance and in the latter she voluntarily obtains divorce from
her husband and surrenders her right of maintenance. It is clause (b) which
has caused some difficulties and we would presently devote our attention
to it.
Payment of dower and cancellation of maintenance order passed under
section 125: Till the decision in Shah Bano,87 the words, "whole
of the sum which under the customary or personal law applicable to the
parties, was payable on such divorce" in clause (b) of section 127(3) were
thought to indicate dower or mahr under Muslim law, and the fundamen-
talist thought that once a Muslim husband has divorced his wife and had
paid her dower (irrespective of its quantum, even if it was minimum, i.e.,
10 dirhams), no maintenance order could be passed against him under
section 125. Support for this view was drawn from the observations of the
minister of state for home affairs made in Parliament, on part IX of the
Criminal Procedure Code. Two decisions of the Supreme Court also laid
down that these words in section 127(3)(A) refer to dower.88
We have seen earlier in this article that the provision of the code

85. Id, c\.(b) ofs. 127(3).

86 Id., cl (c), s. 127(3).
87. Supra note 3.
88. Bai Tahira, supra note 1. Fuzlunbi v. A^. Khader Vali, A.I.R. 1980 S.C. 1730.
308 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 27 : 2

including those of section 125 are applicable to all persons belonging to

any caste, religion, community or nationality, and once it is shown that a
person having sufficient means has neglected or refused to maintain his
wife who is unable to maintain herself, can be ordered by the magistrate
to pay a monthly maintenance to her at a rate not exceeding Rs. 500. In
other words, neglect or refusal to maintain by a person of sufficient means
to maintain his wife, divorced-wife, child or parent unable to maintain
herself or himself are the two objective criteria which determine the appli-
cation of the section. It is immaterial as to whether the claimant or non-
claimant is Hindu, Muslim, Christian, Parsi or pagan. It is also not
necessary that both should belong to the same religion or community. It
is also clear that if personal law of any person is in conflict with the
provisions of section 125, it is the latter which will have overriding effect.
Thus, the narrow question to be considered is: Whether section 127 Q)(b)
saves the Muslim law provision of payment of dower so as to defeat
all claims of maintenance of a divorced wife who has been paid
mahr-moneyl
When a member of Parliament drew the attention of the government
that section 125 should be applicable to Muslim wives also, Ram Nivvas
Mirdha, the then minister of state for home affairs, remarked:

Well, I will not go into this, but say that we would not like to
interfere with the customary law of Muslims through the Crimi-
nal Procedure Code. If there is a demand for change in the
Muslim Personal Law, it should actually come from the Muslim
Community itself and we should wait for the Muslim public
opinion on these matters to crystallize before we try to change this
customary right or make changes in their personal law. Above
all, this is hardly the place where we could do so.89

The question came up for consideration before the Supreme Court in

Bai Tahira,90 where parties were married in 1956 and were blessed with
a son. But in 1962 the marriage broke down and the husband pronounced
talaq on the wife. Immediately thereafter litigation ensued between the
parties relating to a flat in which the husband had housed the wife,
resulting in a compromise in which the wife got the flat. In the compro-

89. However, the minister added, "Divorced women have been included and brought
within the ambit of clause J 25, but a limitation is being imposed by this amendment to
clause 127, namely, that the maintenance orders would cease to operate after the amount
due to her under the personal law arc paid to her. This is a healthy compromise between
what has been termed a conservative interpretation of law or a concession to conserva-
tive public opinion and hbeial approach to the problem*'.
90. Supra nott J.
 1985] CLAIM OF MAINTENANCE UNDER CRIMINAL PROCEDURE CODE 309

mise it was also stated that the husband had paid an amount of
Rs. 5,000, the mahr-money> to the wife. One of the clauses of the
compromise stated, "The plaintiff (wife) declared that she has now no
claim or right whatsoever against the defendant or against the estate and
the properties of the defendant." Sometime later on the relationship
between the two improved but it did not last long, and when the wife
found herself in financial straits and unable to maintain herself, moved
the magistrate under section 125 of the Criminal Procedure Code, for the
monthly allowance for maintenance of herself and the minor son. In her
petition, the wife proceeded on the assumption that she was still the wife,
but her husband contended that she being a divorcee was not entitled to
maintenance under section 125. The wife succeeded in the magistrate's
court but the husband succeeded in the first appellate court91 as well as in
the revision petition before the High Court92 filed by the wife. When the
case came to the Supreme Court, Krishna Iyer J. observed that it was
obvious that a divorced wife was entitled to maintenance under section
125. The two main contentions before the Supreme Court were:
(a) Since parties were living separately by mutual consent, sub-section
(4) of section 125 applied and, therefore, she was not entitled to any
maintenance; and,
(b) since there was a compromise in 1962 under which mahr-money
was paid to the wife and all claims adjusted, no claim of maintenance,
in view of section 127 (3) (b), could survive. Taking recourse to teleological
and schematic method of interpretation, Krishna Iyer J. observed that
the meaning of any provision of law should be discerned keeping in view the
values of society and legal system. Article 15(3) of the Constitution has
compelling, compassionate relevance in the context of section 125 and the
benefit of doubt, if any, in statutory interpretation belongs to the ill-used wife
and the derelict divorcee. Parliament, in keeping with article 15(3) and
with deliberate design, made a special provision to help women in distress,
cast away by divorce or neglect. Protection against moral and material
abandonment manifest in article 39 is part of social and economic justice
specified in article 38. The learned judge then observed:

Nor can S. 127 rescue the respondent from his obligation.

Payment of mehar-money, as a customary discharge, is
within the cognizance of that provision. But what was the amount
of mehar? Rs. 5,000/-, interest from which could not keep the
woman's body and soul together for a day, even in that city
where 40% of the population are reported to live on pavements,
unless she was ready to sell her body and give up her soul! The

91. The district and sessions judge took a strange view of the law that under section
125, the court had no jurisdiction to consider the question of marital status.
92. The High Court paying little attention to the, matter summarily dismissed the
revision petition.
310 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol, 27 : 2

point must be clearly understood that the scheme of the complex

of provisions in Chap. IX has a social purpose. Ill-used wives
and desperate divorcees shall not be driven to material and moral
dereliction to seek sanctuary in the streets. This traumatic horror
animates the amplitude of S. 127. Where the husband, by
customary payment at the time of divorce, has adequately pro-
vided for the divorcee, a subsequent series of recurrent doles is
contra-indicated and the husband liberated. 93

It would appear that in this case, the Supreme Court accepted that
section 127(3) (b) relates to payment of dower under Muslim law. This
becomes obvious from the following observation of Krishna I)er J.:

The payment of illusory amounts by way of customary or

personal law requirement will be considered in the reduction of
maintenance rate but cannot annihilate that rate unless it is a
reasonable substitute. The legal sanction of the payment is
certified by the fulfilment of the social obligation, not by a ritual
exercise rooted in custom. . . . If the first payment by way of
mehar or ordained by custom has a reasonable relation to the
object and is a capitalized substitute for the order under S. 125
—not mathematically but fairly—then S. 127(3)(6) subserves
the goal and relieves the obligor, not pro tanto but wholly. The
purpose of the payment'under any customary or personal law'
must be to obviate destitution of the divorcee and to provide her
with wherewithal to maintain herself. . . . There must be a
rational relation between the sum so paid and its potential as
provision for maintenance. . . ,94

The Supreme Court laid down the proposition thus:

[N]o husband can claim under Section 127(3)(b) abso-

lution fiom his obliga ion under S. 125 towards a divorced-wife
except on proof of payment of a sum stipulated by customary or
personal law whose quantum is more or less sufficient to do duty
for mtin'enance allowance.94"

In short, the purpose of section 127(3)(fc) is simply this that a wife

cannot be allowed double benefit, one of the customary or personal law
payment and the other of the payment under section 125. But if the
former is inadequate, the court has power to award maintenance under
section 125.
Bai Tahira decision was castigated by the fundamentalist as an

93. Supra note 1 at 365.

94 Id at 365-66.
94fl, Id. at 366.
1985] CL AIM OF MAINTENANCE UNDER CRIMINAL PROCEDURE CODE 311

interference in the Muslim personal law, and even a mild mannered

progressive professor of law, Tahir Mahmood thinks that the nexus between
dower and clause (b) of section 127 should be retained, though he calls
Bai Tahira a liberal ruling conforming to the spirit of Islamic law.95 He
says that "Parliament had added section 127(3)(&) to section 125 in
order to protect Muslim law relating to divorced wife's right of main-
tenance"96 and is critical of the observation of Khalid J. who holds that
section 127(3)(6) does not protect the rule of Muslim law and that a
Muslim husband cannot avail it for the cancellation of the maintenance
order passed against him.97 Tahir Mahmood considers these decisions as
erroneous. Bai Tahira in our submission lays down this that if the amount
of dower paid to the wife is sufficient to provide her maintenance, then
she cannot claim maintenance under section 125, but if it is insufficient
she can still make such claim. The amount of dower-money paid to the
wife could be considered in the reduction of the amount of maintenance
but could not annihilate that rate unless it was a reasonable substitute.
Reiterating Bai Tahira in Fuzhmbi,9* Krishna Iyer J. said that what-
ever be the facts of a particular case, the code by enacting sections 125 to
127 charges the court with the humane obligation of enforcing maintenance
or its just equivalent to ill-used wives and castaway ex-wives only if the
woman has received voluntarily a sum, at the time of divorce, sufficient
to keep her going according to the circumstances of the parties. He
added:

Neither personal law nor other salvationary plea will hold against
the policy of public law pervading S. 127(3)(6) as much as it does
S. 125. So a farthing is no substitute for a fortune nor naive
consent equivalent to intelligent acceptance.99

Both the Supreme Court decisions do seem to lay down that "dower**
is included in section I25(3)(b) and is a sum payable on divorce under
any customary or personal law, if dower amount is sufficient to enable
her to maintain herself, no order of maintenance can be made. If, on
the other hand, it is not sufficient, the court has power to fix the amount
of maintenance as it considers just and proper, though in fixing the
quantum of maintenance, it will take into consideration the amount of
mahr paid to her—it will be considered for the reduction of the amount
of maintenance. Both these decisions do not lay down that on payment
of dower howsoever negligible it may be, the husband is absolved totally

95. Tahir Mahmood, Muslim Law of India 133 (1980),

96. Ibid.
97. KunhiMoyin v. Pathumma, 1976 K.L.T. 87; Muhammedv. Sainabi, 1976 K.L.T,
711.
98. Supra note 88.
99. W. at 1736.
312 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 27 : 2

of his obligation to pay maintenance under section 125. This precisely

was the view taken by a bench of the Bombay High Court100 and approved
and followed by a full bench of the Kerala High Court.101
The Bombay High Court held that while there were no words
restricting the right to entertain an application for maintenance in section
127 itself, the rule of harmonious construction required that section 127(3)
(b) must be read and understood as a proviso to section 125. So under-
stood, the Bombay High Court added, section 127(3)(Z>) would restrict
the power of the magistrate to entertain an application for maintenance
at the instance of the divorced wife, and a divorced wife who had been
paid mahr amount and maintenance during idda could not claim main-
tenance under section 125. It was of no consequence as to what was the
quantum of dower. This view was approved by a full bench of the
Kerala High Court which also overruled a different view taken by a
bench of the same High Court.102 Khalid J. in a division bench103 case
observed:

This section [section 127] provides that the Magistrate shall cancel
the order for maintenance if any sum under any customary or
personal law applicable to the parties is paid on divorce. This
section may be pressed into service by some ingenious husbands
to defeat the provisions contained in section 125. We would
like to make it clear that section 127(3)(Z?) refers not to main-
tenance during the period of iddat or payment of dower. . . .It
is therefore not a sum of money which under the personal law
is payable on divorce as expressed in Section 127(3)(£).104

Confronted with the question as to what is included in section 125(3)

(6), the learned judge said:

[W]hat is impliedly covered by this clause is such sums of money

as alimony or compensation made payable on dissolution of the
marriage under customary or personal law codified or uncodified,
or such amount agreed upon at the time of marriage to be paid at
the time of divorce; the wife agreeing not to claim maintenance
or any other amount.10*"

100. Rukhsana Parvin v. Sk Mohd. Hussein, (1977) Cr LJ. 1041.

101. Kamalakshi Vasantha Kumari v. Sankatan Sadasivan, A.I.R. 1979 Ker. 116
(F.B.).
102. Kunhi Moyinw.Pathumma, supra note 97. The same view was reiterated in
Muhammed v. Saittabi, supra note 97 but this decision was not brought to the notice of
the full bench.
103. Kunhi Moyin, ibid.
104. Id. at 96.
104*. Ibid. (Emphasis added).
1985] CLAIM OF MAINTENANCE UNDER CRIMINAL PROCEDURE CODE 313

The learned judge did err in reading the words "The wife agreeing
not to claim maintenance or any other amount" in this section. This
seems to have occurred on account of his quest to find out of the meaning
of the clause. Krishna Iyer J. rightly observed that Khalid J. fell short
of going full extent as his exposition of law would excuse the husband if
he pays a sum which the ignorant wife at the time of marriage has agreed
upon to relinquish maintenance after divorce.105 In view of the construc-
tion placed by him on the clause, Krishna Iyer J. felt that the Kerala
full bench decision also fell short as it did not insist on an adequate sum
which would yield a recurring income to maintain the divorcee in future
and, therefore, it laid down a bad law.106
Khalid J.'s view that clause (b) of section 127(3) does not include
dower within its compass has found a clear and unequivocal support from
a unanimous bench offivejudges of the Supreme Court (Y.V. Chandrachud
C.J., D.A. Desai, O. Chinnappa Reddy, E.S. Venkataramiah and Ranga-
nath Mishra JJ.).107 Chandrachud C.J., who delivered the judgment of
the bench, though agreeing with the basic reasoning of Krishna Iyer J. in
Bai Tahira and Fazlunbi, disagreed and overruled the following formu-
lation, "payment of mahr-money, as a customary discharge, is within the
cognizance of section 137(3)(6)".
The unfortunate story of Shah Bano Begum, married to an advocate,
one Mohd. Ahmed Khan, way back in 1932, gave birth to three sons and
two daughters, is that in 1975 she was driven out of the matrimonial home
by her husband. Lacking means of subsistence she knocked at the gates
of a magistrate's court in 1978 claiming maintenance from her husband at the
rate of Rs. 500 per month. On November 6,1978 the husband pronounced
talaq on her in talaq-i-bidai form (irrevocable divorce) and pleaded
before the magistrate's court that since he had divorced his wife, he was
under no obligation to provide maintenance for her. He also averred that
he had paid maintenance to her at the rate of Rs. 200 per month for about
two years and had also deposited a sum of Rs. 3,000 in the court by way
of mahr-money. The magistrate directed the husband to pay a "princely

105. Fuilunbi, supra note 88 at 1733.

106. See also Hajuben Suleman v. Ibrahim Gandabhai, \ 8 Guj. L.R. 133 (1977) in which
a view similar to Khalid J. was propounded. The court held that unless the divorcee
voluntarily accepts a sum in lieu of future maintenance she is still entitled to her claim.
The basic difference between the two views is that while Khalid J. talks of pre-divorce
composition of maintenance, the Gujarat High Court talks of post-divorce composition,
and, in our submission, relates more to clause (c) of section 127(3) than to clause (b) of
section 127(3). The court rightly observed, at 137, that "this provision [clause (b) of
section 127 (3)] which seeks to confer power on the Court to cancel an order of monthly
allowance passed by it in certain specified contingencies, has to be confined strictly within
the narrow limits laid down by sub-sec. (3). This is because the provision for maintenance
of wives, whether married or divorced, who are unable to maintain themselves is a social
welfare measure applicable to all people. . . .'*
107. Supr* note 3.
 314 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 27 : 2

sum" of Rs. 25 per month. On appeal, the High Court enhanced it to

Rs. 179. 20 per month. (The wife had averred that her husband's annual
professional income was Rs. 60,000). Against this order, the husband
landed in the Supreme Court.
The following were the three questions for consideration before the
Supreme Court:
(a) Admittedly, the Muslim husband enjoys the privilege of being
able to discard his wife whenever he chooses to do so, for reasons good,
bad, indifferent or for no reason at all, but docs it mean that Muslim law
does not impose any obligation on him to maintain his wife?
(b) The husband's obligation to maintain his wife during idda is
recognized, but does it mean that the mere fact that he had paid some-
thing by way of maintenance to his wife during idda, absolve him forever
from the duty of maintaining his divorced wife thereafter?
(c) Is dower a sura payable under Muslim personal law as a sum
"payable on divorce" within the meaning of section 127(3)(fc)?
The interesting aspect of thejudgment of Chandrachud C J., is that after
holding categorically that in case there is any conflict between the personal
law (any personal law, Hindu, Muslim, Parsi and others) and section 125
of the Criminal Procedure Code, the latter would prevail, he proceeds to
find out whether in fact there is any conflict and comes to the conclusion
that there is none.
After quoting from certain text-books108 to the effect that on
expiration of the period of idda, the husband's obligation to maintain the
wife ceases, the learned Chief Justice said that these statements in the
text-books are inadequate to establish the proposition that a Muslim
husband is not under an obligation to provide maintenance to his divorced
wife who is unable to maintain herself.109 He added:

We are of the opinion that the application of those statements of

law must be restricted to that class of cases, in which there is no
possibility of vagrancy or destitution arising out of the indigence
of the divorced wife.110

In our submission, the question of maintenance of a divorced wife

arises only when she is indigent, and this is so under practically all
personal laws as well as under section 125 of the Criminal Procedure
Code. If the wife (divorced or undivorced) has ample or adequate
independent means of maintenance, the question of maintenance or
alimony and maintenance (in ancillary proceedings under the Hindu
Marriage Act 1955, the Special Marriage Act 1954, the Parsi Marriage

108. Mulla, Principles of Mahomedan Law, para 279 (18th ed.)i Tyabji, Muslim Law,
para 304 (4th ed.) and Paras Diwan, Muslim Law in Modern India, supra note 10 at 130.
109. S/#r#note3 at 950.
110. Ibid.
1985] CLAIM OF MAINTENANCE UNDER CRIMINAL PROCEDURE CODE M5

and Divorce Act 1936 and the Indian Divorce Act 1867) does not arise.
The question arises only when she has no adequate means to maintain
herself. Otherwise, the question hardly arises (particularly after divorce),
though in some systems of law, including Hindu and Muslim, it is the
personal obligation of a husband to maintain his wife (undivorced wife)
irrespective of the fact whether she has or has not sufficient independent
means to maintain herself. After quoting certain verses from Quran111
to the effect that a Muslim husband has an obligation to maintain his
indigent divorced wife, the Chief Justice said that the argument of the
husband that according to the Muslim personal law his liability to provide
for her maintenance was limited to the period of idda, despite the fact
that she was unable to maintain herself, was to be rejected. He then
observed:

The true position is that, if the divorced wife is able to maintain

herself, the husband's liability to provide maintenance for her
ceases with the expiration of the period of iddat. If she is unable
to maintain herself, she is entitled to take recourse to section 125
of the Code.118

And thus no conflict between the Muslim personal law and section 125
of the Criminal Procedure Code was found.
On the question whether mahr-money was a sum payable to the wife
under Muslim personal law within the meaning of section I25(3)(b)
Criminal Procedure Code, Chandrachud J. observed that mahr was not a
consideration for marriage but an obligation imposed upon the husband
as a mark of respect for his wife, and was, therefore, not a sum payable
on divorce.113 In his words:

But, the fact that deferred Mahr is payable at the time of the
dissolution of marriage, cannot justify the conclusion that it is
payable 'on divorce'. Even assuming that, in a given case, the
entire amount of Mahr is of the deferred variety payable on the
dissolution of marriage by divorce, it cannot be said that it is an
amount which is payable on divorce. Divorce may be a convenient
or identifiable point of time at which the deferred amount has to
be paid by the husband to the wife. But, the payment of the
amount is not occasioned by the divorce, which is what is meant
by the expression 'on divorce', which occurs in section 127 (3)(b)

111. M a t 951-52.
112. Id. at950-5L
113. He quoted from Mulla, supra note 108 at 308; Paras Diwan, supra note 108 at 60
and the following two Privy Council decisions: Hamira Bibi v. Zubaida Bibi, A. I.R. 1916;
P.C. 46; SyedSabir Hussain v. Fazand Hasan, A.I.R. 1938 P.C, 80.
316 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol 27 : 2

of the Code. If Mahr is an amount which the wife is entitled to

receive from the husband in consideration of the marriage, that is
the very opposite of the amount being payable in consideration of
divorce. Divorce dissolves the marriage. Therefore, no amount
which is payable in consideration of the marriage can possibly be
described as an amount payable in consideration of divorce. The
alternative premise that Mahr is an obligation imposed upon the
husband as a mark of respect for the wife is wholly detrimental to
the stance that it is an amount payable to the wife on divorce. A
man may marry a woman for love, looks, learning or nothing at
all. And, he may settle a sum upon her as a mark of respect for
her. But he does not divorce her as a mark of respect. Therefore,
a sum payable to the wife out of respect cannot be a sum payable
'on divorce.'114

No one would disagree with the above observations. But in our submission
the following two propositions of Muslim law have been well settled
(either on account of opinions expressed by text-book writers or on account
of stare decisis):
(a) Muslim husband has no obligation to maintain his divorced wife
after the termination of the period of idda, and
(b) dower—deferred dower, to be more precise—has been considered
to be a sum payable on divorce.
In our submission, under the Muslim personal law a divorced wife
cannot claim maintenance or alimony (to use the expression of English
matrimonial law), though a Christian, Parsi, Hindu wife, or a woman
married under the Special Marriage Act can do so by filing a petition in
the matrimonial court. However, she can claim maintenance under section
125 of the Criminal Procedure Code. In view of this, we should accept that
Muslim personal law to that extent has been abrogated by that section.
Secondly, suppose the entire sum of mahr-money has been paid soon
after the marriage and ultimately and unfortunately, there is divorce
between the parties, there remains no sum of dower to be paid to her on
divorce and thus section 127 (3)(b) cannot be attracted. Now suppose the
entire dower is deferred and it consists of a substantial sum of money—say
Rs. 50,000 or Rs. 80,000—and is paid soon after divorce. Chandrachud
C. J. says that even in such a case it cannot be said that this is an amount
"payable on divorce".113 Whether or not it is regarded as a sum payable
on divorce, since it has been in fact paid on divorce, will the magistrate
not take this sum into consideration whilefixingthe quantum of main-
tenance under section 125? Can he brush aside the payment of this amount
by saying that since dower-money isnot "payable on divorce",115 even if it is
paid on divorce or after divorce, it cannot be taken into consideration? In

114. Supra note 3 at 952-53.

115. Ibid.
1985] CLAIM OF MAINTENANCE UNDER CRIMINAL PRO CEDURE CODE 317

our submission the magistrate will have to take this sum into consideration
while fixing the amount of maintenance and if he comes to the conclusion
that this amount is sufficient to maintain her, he will have to give a finding
that she is not unable to maintain herself and, therefore, no maintenance
amount need be given to her. At the same time it would be wrong to say that
any insignificant amount of maintenance—such as 10 dirhams11Q—would be
an amount "payable on divorce" under personal law and in terms of section
127 (3)(b) the husband will stand absolved of his responsibilities and the
magistrate is bound to cancel the maintenance order, if already passed by
him under section 125. It would thus equally be incorrect to say, as the
Bombay High Court said, that section 127 (3)(b) is a sort of exception to
section 125. In our submission the more socially just and palatable to the
average Muslim, would be the view as propounded by Krishna Iyer J. In
his words:

The payment of illusory amounts by way of customary or personal

law requirement will be considered in the reduction of maintenance
rate but cannot annihilate the rate unless it is a reasonable sub-
stitute. The legal sanctity of the payment is certified by the
fulfilment of the social obligation, not by a ritual exercise rooted
in custom. No construction which leads to frustration of the
statutory project can secure validation. . . . 117

Paras Diwan*

116. Equivalent to 3-4 rupees.

117. Supra note 1 at 365-366.
* LL. M., Ph. D., Advocate, Honorary Director, Legal Aid Centre, Indian Institute
of Comparative and Family Law, Chandigarh. Formerly Professor and Chairman,
Department of Laws, Punjab University, Chandigarh.