This article is written by Bheeni Goyal, from Symbiosis Law School, Pune. It explains the scope of Section 125 of the Code of Criminal Procedure and the revision applications passed against the orders under Section 125.

It has been published by Rachit Garg.

Introduction

Section 125 of the Code of Criminal Procedure is one of the most invoked and discussed provisions of the code. This code provides that any person who has sufficient means to maintain himself cannot deny the maintenance to the wife, children, and parents if they are not able to maintain themselves. However, sometimes the husbands, against whom the order of maintenance is passed may not be satisfied with the judgment passed by the lower court and therefore, they should have a platform where they can put up their grievances against the order. Therefore they have the right to file the revision application in the court of law as provided under Section 397 of the Code. The scope of revision applications increased in recent times due to increasing awareness and improved outlook of the judiciary towards providing justice to such parties as well. Let’s look at the scope of the revision available against the order under Section 125 of the Code Of Criminal Procedure.

Scope and applicability of Section 125 CrPC

Section 125 of the Criminal Procedure Code provides for the maintenance to the wife, child, and parents. The court after the party has invoked Section 125 of the Code, may order the respondent, that is the husband, to maintain the wife who is unable to maintain herself by providing monthly maintenance to her. However, there is an exception in the provision. For the purpose of providing maintenance to the wife, the husband has to be sufficient enough to support his wife after the separation and at the same time, the wife must not be living in adultery or living separately with her husband without any sufficient reasons. Even if they are living separately in mutual consent, then also the wife will not be entitled to any sort of maintenance. Whenever the judgment is passed in favor of the wife, the court has to make sure that the husband has sufficient means to provide maintenance to the wife. The court also needs to make sure that the wife after the separation does not have enough money to maintain herself.

Under Section 125 of the code, the provision is available for interim maintenance which means that during the pendency of an application in the court of law, the order may be passed by the magistrate directing the husband to pay the monthly allowances to the wife. However, the magistrate has the right to alter the amount of the maintenance to be paid, if he thinks that there is a change in the circumstances of the individual who has been paying or either receiving the monthly allowances. This was laid down in the case of Vikas v. State of Uttar Pradesh. All such applications of maintenance can be filed in any district where the person who is liable to pay resides or where the wife resides or where the person last resided with the wife or with the mother or with the illegitimate child. The purpose of Section 125 of CrPC is to achieve a social purpose in society.

The purpose of Section 125 CrPC was explained in the case of  K. Vimal v. K. Veeraswamy, where it was held that Section 125 of the Code had been introduced for achieving a social purpose. The aim of this section is the welfare of the wife by providing her with the required shelter, food after the separation from the husband. It was held in this case that if the wife has lived like a wife and the husband had treated her like a wife for all the years before their separation, then, the wife cannot be denied maintenance by her husband.

Grants of maintenance are a metric of social justice. A man’s essential obligation is to provide for his wife, kids, parents, close relatives, etc, while they are incapable of providing for themselves. Preventing immorality and poverty while improving the economic standing of women and children is the motive behind the concept of maintenance. The CrPC requirements obligate a person to fulfil the moral duty to which he owes the community in regard to his wife, children, and parents. The obligation is unquestionably lawful and binding on the person.

All communities in India are subject to the CrPC’s provisions, and therefore are very much secular, safe, and all-encompassing in character and apply to all faiths, castes, and creeds. Whatever personal law is used to guide and control the respective persons affected, the provisions of Section 125 of the CrPC are enforceable. However, procedures provided under Section 125 of CrPC are of a summary nature and apply to everyone regardless of caste, creed, or religion. Maintenance can be sought under the individual personal laws of people of other religions, and processes under such personal laws are civil in nature.

The provision found in Chapter IX of CrPC seeks to shield the neglected wife, parent, and children (minor) from complete ruin and destitution through a straightforward, quick, and effective restricted relief. Section 125 of CrPC offers a swift solution to prevent famine and social unrest. It differs from a husband’s civil liability. It serves as a straightforward summary procedure. It puts into practice a man’s fundamental obligation to support his wife, kids, and elderly parents who are self-supporting. 

The fundamental tenet of the maintenance stance under Section 125 of the CrPC is that no wife, young children, or elderly parents should be left without and succumb to complete pressure of wants in order to be persuaded to resort to crimes, etc. A Magistrate of the First Class may take swift action to avoid poverty under a provision in Section 125 of the CrPC.

Purpose of Section 125 CrPC

1. The intent behind Section 125 of the CrPC is to protect dependents who are unable to support themselves from starvation, misery, and vagrancy. It is social justice legislation that was specifically passed to safeguard women, children, and elderly parents. 
2. The main goal of Section 125 of the CrPC of 1973 is to support abandoned and impoverished wives, neglected and abandoned children, and vulnerable, elderly, and disabled parents. As a result, this provision promotes social welfare and social service. The Magistrate’s authority is primarily preventative in character rather than penal or punitive.
3. The time-consuming, troublesome, heavy, process of civil law and litigation was sought to be avoided by providing a simple, quick, limited relief. This is because compulsion is (to some extent) imposed upon those persons whose duty it is to support their dependents who are unable to support themselves. 
4. No wife, child, or parent should be abandoned on the scrap heap of society to beg or to lure others to commit crimes against them or to commit crimes themselves. A contract that violates this responsibility and totally waives the right to support one’s own wife and young children cannot be regarded as legal.

Features of Section 125  CrPC

Previously, while discussing legal terms that have been used in making up Section 125, some of the features that will be discussed below have already been referred to. Readers will therefore now be able to understand the features of the maintenance provision better. Section 125 of the CrPC is designed with the following features: 

Need for sufficient means for maintenance 

The most important requirement is that a person cannot be ordered to pay maintenance to another person unless they themselves have ‘adequate resources to support’ the person who has the claim and neglects or refuses to do so. The person asserting that he lacks sufficient means to sustain has the burden of evidence. The fact that he is unemployed does not excuse him from the requirement. In the instance of Hardev Singh v. State (1974), the Apex Court held that if a person cannot pay such maintenance allowance because he is a monk, then it is his obligation to cast off the yellow robe and labour. The high courts have been tougher in their interpretation. The social justice component and the protection of the society’s weaker members, namely, women, children, and the elderly, are cited as the causes of this interpretation.

Neglect and refusal to be maintained 

The term ‘neglect’ fundamentally refers to a disregard of responsibility that may be either unintentional or purposeful and is used to refer to a failure to maintain even when no such demand is made against the maintainer. Whereas, the ‘refusal’ to maintain occurs when there is a clearly stated purpose to not carry out his responsibility. This intention may be expressed or even suggested by the husband’s behaviour. The claimant has the onus of establishing this. The requirement that the wife lives with her husband is initially necessary for her to be able to claim maintenance, but if the Magistrate finds that she has a valid reason for doing so for instance, if her husband has taken in a new wife and if it is ritually permitted by their personal law, the condition may be removed from her claim.

Quantum of maintenance

Up until the Amendment Act No. 50 of 2001, the magistrate was obligated to grant maintenance not to exceed Rs. 500. There isn’t a cap on the maximum amount, instead, the Magistrate is free to decide the monthly rate in accordance with the circumstances of the case. The rate can occasionally be changed in accordance with Section 127, but it must be fixed, predictable, and not gradually growing. If both the wife and the child are suing the same individual, it is against the law to pay them both jointly, instead, each has a distinct claim that can be paid separately.

Claimant of maintenance under Section 125 must be unable to maintain himself/herself 

The incapacity of a woman to support herself is one of the requirements for claiming maintenance. She need not expressly request that she be allowed to care for herself. However, the Karnataka High Court ruled in the case of Adbulmuaf v. Salima (1978) that if the woman is healthy, educated, and still unable to support herself, she may still request maintenance, but the amount awarded to her will depend on these circumstances.

Scope of revision under Section 125 CrPC

Under Section 125 of the Code of Criminal Procedure, when the proceedings are conducted against the husbands, the court tends to decide the quantum of the maintenance, which has to be paid to the wife after considering the circumstances of the case. Although the maintenance declared by the court would satisfy the petitioners, what if the husband is not satisfied with the order of the court. As appeal under Section 125 of the court is not maintainable, the legal option which is available with the husband is to go for the revision proceedings. But it all depends on the merits of the case, whether the party has the right to file for the revision proceedings in the higher courts. But the jurisdiction of the higher courts is also limited, as they have to take into consideration certain aspects before proceeding with the revision of the case. One of the limitations is that the Higher Court cannot interfere when the evidence that has been presented by both parties is taken into consideration. The power of revision is available with Section 397 of the Code of Criminal Procedure.

The High Court or the sessions judge has the power to call for the examination of the record of any proceeding before any inferior court. However, the power of the revision will not be applicable concerning any of the interlocutory orders passed in any of the trial proceedings. In the case of Ashu Dhiman v. Jyoti Dhiman, which has been passed by the Uttarakhand High Court holding that an order passed by the trial court rejecting or allowing the application for the maintenance when the proceedings are pending in the court, cannot be considered as an interlocutory order and the higher court have the right to review the case which has been filed by the other party. In the case of Sunil Kumar Sabharwal v. Neelam Sabharwal, it was held that an order granting the interim maintenance under Section 125 is not an interlocutory order and therefore the revision of the same cannot be barred under Section 397(2). When the court has straightaway rejected or allowed the proceedings to be filed in the court of law then, the parties should have the right to go for the review by the court of law. Numerous judgments have been passed by the court and provided that even if the wife is capable of earning or is earning, cannot be denied the maintenance by the husband.

However, it is always necessary that the husband is more efficient in earning than the wife. In such cases, they need to approach the higher courts pleading the revision of the case. The Courts have been allowing the revision application when the wife is at fault herself. Sometimes the wife leaves their matrimonial houses without any sufficient reasons and for their ill motives to get the maintenance from their husband.

Landmark judgments

Numerous judgments have been passed by the courts supporting the contention of the husband when they file revision applications for setting aside or for the alteration of the maintenance amount when they are not satisfied with the order passed by the Trial Courts. This certainly increases the scope of the revision which is available under Section 125 of CrPC. 

The Patna High Court in the case of Masud Ahmed v. the State of Bihar, where the petitioner approached the High Court for setting aside the order which had been passed by the trial court directing the petitioner to pay the maintenance of Rupees 3000 per month to the ex-wife and Rupees 2000 per month as the maintenance for children. The petitioner had argued that his ex-wife, a teacher in a school, had been earning quite well. He contended that Section 125 of CrPC could only be invoked when the wife is not able to maintain herself. But, in this case, she had been earning sufficiently well by working in the school. The court in this case held that the wife should not be provided with the maintenance as after the divorce, the wife had sufficient means to maintain herself and therefore the court set aside the order for giving Rupees 3000 per month as the maintenance. 

In another case of Aarif v. Shajida, the revision petition was filed before the Madhya Pradesh High Court under Section 397 and Section 401 of the Code of Criminal Procedure for setting aside the order which had been passed by the lower court directing the petitioner to pay 3000 Rupees for the maintenance to his wife. It was contended by the husband that the wife had deserted him again and again and had been living away from him for a long time. She did not have sufficient reasons for staying away from the matrimonial house, then she even kept leaving and coming back to her matrimonial house. The court found that the action of the respondent-wife was contradictory. Hence, the court allowed for the revision of the application.

Revisional courts also have the power to set aside the findings of the fact recorded by the lower courts concerning Section 125 of the Code of Criminal Procedure. In the case of  Deb Narayan Halder vs. Anushree Halder, it was held that the High Court in the exercise of its revisional powers can set aside certain findings of facts found by the lower courts under Section 125 of the Code of Criminal Procedure. It was held by the court that, “it is well settled that the Appellate or Revisional Court while setting aside the finding recorded by the Court below must notice those findings, and if the Appellate or Revisional Court concludes that the findings recorded by the Trial Court are indefensible, they should record its reasons for coming to such conclusion. Where the findings are findings of fact it must discuss the evidence on record which justifies the reversal of the findings recorded by the Court below. This is particularly so when findings recorded by the Trial Court are sought to be set aside by any Appellate or Revisional Court. One cannot take exception to a judgment merely on the ground of its brevity, but if the judgment appears to be cryptic and conclusions are reached without even referring to the evidence on record or noticing the findings of the Trial Court, the party aggrieved is entitled to ask for setting aside of such a judgment”. 

The court however does not have the power to exercise the powers under Section 125 of CrPC if the wife has been granted the alimony under Section 25 of the Hindu Marriage Act, 1955.  In this case, the wife has preferred alimony under the Hindu Marriage Act and at the same time, she opted for the maintenance under section 125 of CrPC. It was held by the Court that the wife has the right to opt for the maintenance under section 125 of CrPC and after that, she could opt for the interim maintenance under Hindu Marriage Act. However in this case it was the opposite where the wife opted for the Alimony under the Hindu Marriage Act and then opted for the maintenance. Therefore in such cases, she can only be granted one relief and that is of maintenance and that’s why the decree for the alimony under this case will be converted into the suit for the maintenance under section 125 of CrPC.The above-mentioned judges have provided us a glimpse of the changed outlook of the judiciary towards revision applications and further increasing the scope by setting up more precedents.

Sandeep Walia v. Monika Uppal (2022)

According to the Delhi High Court’s decision in the recent case of Sandeep Walia v. Monika Uppal (2022), parties to matrimonial disputes frequently fail to reveal their true income to the Court in an effort to avoid being held responsible for maintenance. Therefore, the Court may decide on maintenance based on the parties’ status and their standard of living. This opinion was made in a case where the husband had contested a family court’s judgement that partially granted the Petitioner’s wife’s motion under Section 125 of CrPC and awarded Rs. 10,000 per month in maintenance. The husband had contended that as his wife was well qualified and making a good living while he was unemployed, she was not entitled to maintenance. 

Facts of the case

1. On October 25, 2015, the parties’ marriage was conducted. Due to disagreements among their own families shortly after their marriage, they began living separately. Before the family court, the Respondent (wife) had made a prayer under Section 125 of the Code of Criminal Procedure, 1973. She claimed that she had to endure excruciating mental pain as a result of her husband’s harassment at the marital home. She provided numerous examples in her counter statement and added that her husband, a revisionist, works as a graphic designer for an NIIT company in Gurugram and makes Rs. 40,000 a month. 
2. She added that her husband received an additional amount of Rs. 40,000 per month in addition to the rental money from the residence. She went on to say that her husband had no debts to pay, that he was the only son, and that his mother received a pension of Rs. 25,000 a month. She sought for a grant of Rs. 40,000 per month for maintenance and Rs. 25,000 for court costs in response.
3. The husband claimed that the respondent-wife had tortured and been abusive to him mentally. He claimed that she had left the marital home without cause or explanation, that she had falsely reported the situation to the CAW cell, and that she had then skipped out on the counselling sessions.

Judgement delivered by the Delhi High Court 

1. The High Court noted that until the Court issues a ruling stating that the wife is not entitled to receive maintenance from the husband on any legally permissible basis, it is the husband’s sacred responsibility to provide for the wife financially.
2. The spouse claimed that he was keeping a three-bedroom apartment and paying rent of Rs. 12,000 per month, discounting energy costs of roughly Rs. 2,000, according to the High Court. It further stated that the husband’s monthly expenses were roughly Rs. 35,210 and that he had invested money in mutual funds, from which he received regular dividends. 
3. The Court also believed that the petitioner’s husband’s outright claim that he had no income could not, under the circumstances of the case, be used as a defence to absolve him of his responsibility to provide for his wife.

Pradeep Kumar v. Smt Bhawana and Anr (2022)

In a recent case of Pradeep Kumar v. Smt Bhawana and Anr (2022), Justice Asha Menon of the Delhi High Court observed that “to deny maintenance to an estranged wife and child is the worst offence, even from a humanitarian perspective.” While dismissing a petition by a husband contesting a Trial Court decision, Justice Asha Menon made an observation directing him to pay a sum of Rs. 20,000 as a consolidated amount towards interim maintenance to the wife and child till the resolution of the matrimonial dispute. 

Facts of the case 

The petitioner’s husband’s attorney claimed that Rs. 1,000,000 had been deposited with the Court Registry in accordance with this decision in order to cover the discrepancy. The petitioner further asserted that he was prepared to give the wife and child Rs. 4,000 per month in accordance with his monthly earnings of Rs. 28,000, which he had previously stated to the Family Court in his affidavit of income and expenditure. Additionally, it was claimed that the petitioner was open to keeping the wife and child as well as renting out a space for them to live separately.

Observation of the Delhi High Court 

1. Although the petitioner’s husband stated that the money had been paid through February 2022, the court noted that the wife and kid indicated that payments had only been made up until September 2021, or for seven months. 
2. The Court also voiced worry that spouses are pressuring their wives to file execution petitions in order to stop payments, even after a court has ruled that she is entitled, even if only temporarily. By judgement dated April 20, 2022, the High Court instructed the husband to deposit the difference between the amount determined by the Trial Court and the amount he was ready to pay, or Rs. 4,000, which he claimed he had paid to the wife in the form of an FDR up until February 2022.
3. With the aforementioned observations, the court dismissed the petition and ordered the wife to pay Rs. 20,000 in fees in front of the Family Court on the next hearing date that had been scheduled.

Jagannath Bedke v. Haribhau Bhedke (2022)

In the matter of Jagannath Bhagnath Bedke v. Haribhau Jagannath Bedke (2022), the Aurangabad Bench of the Bombay High Court stated that courts should not become overly technical when deciding petitions under Section 125 of the CrPC. The court ruled that the aforementioned provision is intended to provide a person with immediate support, particularly financial support, in order for that person to survive. When dealing with the case under Articles 226 and 227 of the Constitution challenging the lower court’s ruling dismissing the petitioner’s maintenance application, the single bench consisting of Justice Vibha Kankanwadi made some observations which have been highlighted hereunder. 

Facts of the case 

The petitioner’s wife, although alive, was living separately from the petitioner and with the respondent. The petitioner had three children. The petitioner had claimed that he submitted an application because he had no source of income and was unable to work due to his advanced age. The Magistrate determined from the evidence presented that the petitioner could not support himself and that the respondent had refused to support his father even though he was able to do so. He had agreed to pay Rs. 5000 in upkeep each month.

The Petitioner filed a petition for support from his son with the Judicial Magistrate First Class, Shevgaon, District Ahmednagar, in July 2014. The petitioner stated that he had no source of income and was unable to work because of his advanced age. However, his application was approved, and the son was told to make monthly payments of 5,000 rupees. The son filed a revision petition, and the Additional Session Judge rejected the initial application. The father submitted the present petition contesting the Additional Sessions Judge’s ruling. The petitioner stated that he has no source of income and is unable to work due to his advanced age.

The respondent, in this case, asserted that the petitioner had sold his farmland for 750000 rupees, despite the sale deed’s showing a lower price. He did, however, assert that his father has vices that have led to conflict between his parents and their separation. The son claimed that his father only asked for money to indulge in his vices.

Observation made by the Bombay High Court 

1. The bench looked at the circumstances and noted that the revisional court had denied the appeal on a technicality because the petitioner had received some money from the sale and had purportedly admitted that he was paid Rs. 20 per day for labour. Therefore, the issue is whether the father has access to a source of income that is sufficient for his needs. 
2. The Court ruled that the maintenance order may only be modified and not completely thrown out, by the revisional court. It is the son’s duty to provide for his father, and he is not permitted to impose the requirement that the father live with him and pay support.
3. The petitioner being currently between the ages of 73 and 75, the Court learned from the submissions that the petitioner no longer owns any land. The Court went on to say that even if it were assumed for the sake of argument that the petitioner owned a piece of land, the question of whether or not that provided him with enough income to support himself and whether or not his physical capabilities permitted him to cultivate the land himself or have it cultivated for him by someone else remained.
4. The Court had also stated that petitions filed under Section 125 of the CrPC cannot be treated by courts in a manner that is so hyper-technical, as the revisional court’s approach appears to be. The Court, therefore, overturned the revisional court’s decision and decreased the father’s maintenance payment to three thousand rupees per month.

Conclusion

Although Section 125 of the Code of Criminal Procedure protects the right of the wife, and the parents to get the equitable amount of maintenance from the husband or their children respectively, there should not be any misuse of such a provision. Nowadays, the scope of revision against the order passed under Section 125 has increased, and the higher courts are increasingly accepting the revision applications under Section 397 for providing appropriate reliefs to the opposite party. There is no set rule which the courts have been following in allowing or rejecting the revision application, it all depends on the facts and circumstances of a certain case. Sometimes the wife, even after the separation, has enough means to maintain herself. Some High Courts had rejected the revision application filed by the husbands because even after their ex-wives had means to maintain themselves, they still were required to give them the maintenance. However, in the above-mentioned case laws, the High Courts have approved the revision application of the husbands because the wives could maintain themselves. Therefore the court decides it based on circumstances prevailing at that time. Hence, these precedents have increased the scope of the revision application against the order passed under Section 125 of CrPC. Although, the author believes that before invoking any such provisions, the parties should solve the matters among themselves.

References

• https://lawstreet.co/judiciary/family-court-orders-passed-u-s-125-CrPC-are-revisable-petitions-u-s-482-CrPC-are-not-maintainable-uttarakhand-hc-read-judgment/
• http://www.legalservicesindia.com/divorce/maintenance-wife-children-parents.htm
• https://www.latestlaws.com/latest-news/sc-rules-courts-not-to-entertain-sec-125-CrPC-petition-of-wife-once-she-is-given-alimony-under-hma/
• https://districts.ecourts.gov.in/sites/default/files/Sec%20125%20CrPC%20Maintenance%20by%20Sri%20S%20S%20Upadhyaya.pdf

Frequently Asked Questions (FAQs)

Who can claim under Section 125?

• Any wife under Section 125 (1) (a).
• A child who is still a minor according to the Indian Majority Act, 1875 under Section 125(1)(b).
• According to Section 125 (1) (d), if a mother or father cannot support themselves, they are entitled to claim maintenance from their children. 

What is the nature of proceeding under Section 125 CrPC?

It is to be noted that proceedings under Section 125 CrPC are civil in nature.

How much is maintenance on Section 125 CrPC?

Under Section 125 CrPC, there is no fixed amount of maintenance that has been provided. The maintenance amount is determined by the competent magistrate on case to case basis. 

Is Section 125 CrPC a summary trial?

Yes, a trial under Section 125 of the Code of Criminal Procedure, 1973 is a summary trial. 

Is a working wife eligible for maintenance?

At first, it was believed that because a working woman is earning money and can support herself, she is not eligible to request maintenance. Now, it is clear that she can make a maintenance claim while having a job because of rulings in instances like Bhagwan v. Kamla Devi  (1974) and Chaturbhuj v. Sita Bai (2007).

Who cannot claim maintenance under 125 CrPC?

• According to Section 125(l)(a) of the Code, a wife who is neglected by her husband or whose husband refuses to maintain her cannot receive a maintenance allowance; rather, the allowance may only be given to a wife who is unable to support herself, but not to a wife who is doing so with some difficulty.
• Under Section 125 CrPC, a major unmarried daughter who is neither ill or disabled cannot claim maintenance.

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