Introduction: Concept Of Maintenance

The number of marriages is increasing day by day. The ratio of several marriages solemnized before the age of a majority is more than that of solemnized after the age of majority. There could be various reasons to claim the amount of maintenance:

  1. The husband consummates with the wife and then leaves her to take care of her all by herself.
  2. Divorced wife
  3. Minor children who are unable to maintain themselves.
  4. Old parents of an individual.

According to Article 15(3) of the Indian Constitution, the state has the powers to make special provisions regarding the protection of women and children.

The Code of Criminal Procedure, 1973 provides for maintenance. It provides mostly the procedural part of the law but it has some provisions in which a substantial part of the law has also been described, and maintenance is one of them. The main idea behind the maintenance is not to punish the man for not taking care of the wife, children, or parents. The main objective is that people who are being entitled to maintenance should not suffer the consequences of the commission of the crime and starvation.

Section 125 of the Code of Criminal Procedure

The persons who are entitled to maintenance are as per Section 125:

  1. Wife

The wife who is unable to maintain herself. Here wife includes only the legally married wife.  It will also include a wife who has been divorced from her husband and has not remarried. The wife can be of any age. The main criterion for awarding maintenance to the wife is that she must be unable to maintain herself. The maintenance will not be awarded to her if she can maintain herself with some difficulty.

The wife is not entitled to receive an allowance from her husband in three cases:

  • If she is living in adultery, or
  • She refuses to live with her husband and without any sufficient cause, or
  • If they are living separately by mutual consent.
  1. Child

The legitimate or illegitimate minor child whether married or not, unable to maintain himself and in the case of a major child, not being a married daughter, is unable to maintain due to physical or mental abnormality. According to the Indian Majority Act, 1875 the child is the person who has not attained the age of 18 years.

  1. Father or mother

The father or mother cannot maintain himself or herself. The daughter is also under a social obligation to maintain her parents. The Indian Society casts a duty upon the children to take care of the parents. Section 3(20) of the General Clauses Act, 1897, states the definition of a father. According to it, the word ‘father’ shall include an ‘adoptive father’, and the term ‘mother’ includes ‘adoptive mother’.


The main criteria for obtaining maintenance is that the person should have sufficient means to maintain the wife, children, or parents. He should not neglect or refuses to maintain them. The application for maintenance should be provided to the Magistrate of the first class. The Magistrate should order the person to pay a monthly allowance for the maintenance at such monthly rate as the Magistrate thinks fit.

If the person does not comply with the orders of the Magistrate, then a warrant will be issued against him. This repaying the amount of maintenance or imprisonment for up to one month.

As per section 125 of the Code of Criminal Procedure, 1973, the interim maintenance can also be given. The applicant has to state the grounds. If the Magistrate thinks fit that there is the case for making the order of interim maintenance, then in the interest of justice, he can pass the order to do so. But such an order is subject to modifications and cancellation.

The main object of section 125 is to provide social justice to the wife, children, and poor parents. It becomes the fundamental duty of the man to maintain his wife, children, and parents. The provisions of maintenance of the Code of Criminal Procedure apply to persons belonging to all religions. The Code has no relationship with the personal laws of the parties.

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