LCI Learning
LCI Learning

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More


The intent of maintenance measures established by laws is not to punish individuals for past neglect or refusal, but to prevent destitution among those who are unable to support themselves. The provisions regarding maintenance in the Code of Criminal Procedure are applicable to individuals of all religions and are independent of personal laws governing the parties involved.

The Supreme Court has emphasized that any delay in providing maintenance to a wife constitutes a violation of human rights. Family courts are not permitted to postpone the granting of maintenance to a separated wife, and husbands cannot evade their responsibility to provide financial support, irrespective of the state of their relationship.

Section 125 of the Code of Criminal Procedure, 1973, encompasses legal provisions related to the maintenance of wives and children. As per Section 125(l) (a) of the Code, if a person possessing adequate resources neglects or refuses to maintain his wife who is unable to support herself, a first-class Magistrate, upon proof, can order the person to provide a fixed monthly allowance for the maintenance of his ex-wife. The maintenance amount is determined based on the living standards that the woman enjoyed at her husband's place. The term "ex-wife" includes any woman who has been divorced by her husband or has obtained a divorce and has not remarried.

If a person willingly fulfils their civil obligation to maintain their wife, it will not be considered neglect or refusal. However, if the husband's payment to his wife is insufficient to meet her basic needs, it qualifies as neglect or refusal to maintain the wife within the meaning of Section 125. The provisions of Section 125 are not affected by the religious affiliation of the spouse. This law serves as a means of social justice within the realm of criminal procedure. The Supreme Court has determined that 25% of the husband's net salary is a "just and proper" amount for alimony to be paid to the estranged wife. This percentage takes into account the husband's responsibilities towards his family, especially if he has remarried.

Section 125 states that a wife seeking maintenance can be of any age, whether a minor or an adult. However, it is necessary for her to be legally married. The validity of the marriage is governed by the applicable personal laws. In the event of a conflict between personal law and Section 125, it is evident from the language of Section 125 that it prevails over personal law. If the legality of the marriage is questioned, the applicant must provide evidence of its authenticity. 


Section 125(1) of the Code outlines the circumstances under which individuals are entitled to claim maintenance. Specifically:

  • Wife: Not every neglected or refused wife is automatically eligible for maintenance. The provision applies to wives who are genuinely unable to support themselves and not those who are managing with difficulty. Maintenance refers to appropriate provisions for food, clothing, and lodging. It is important to note that the wife does not need to be completely destitute or living on the streets to establish her inability to maintain herself. This condition of inability is a prerequisite for filing an application for maintenance.
  • Child: The term "child" is not explicitly defined in the Code. It encompasses both male and female individuals who have not reached the age of majority, which is generally 18 years as per the Indian Majority Act, 1875. Additionally, children are considered legally incompetent to enter into contracts or enforce claims under the law.
  • Father or Mother: If a person with adequate resources neglects or refuses to maintain their father or mother, who are unable to support themselves, a first-class Magistrate has the authority to order that person to provide a monthly allowance for their maintenance. The Magistrate determines the amount deemed appropriate, and it must be paid as directed by the Magistrate.

The provision aims to ensure that those who are unable to support themselves receive the necessary financial support for their well-being.


There are certain grounds on which a wife can be refused maintenance under specific circumstances. These include:

  • Adultery: If the wife is engaged in adultery and living in a quasi-permanent union with the man she is committing adultery with, she is not entitled to receive any interim allowance or maintenance. Additionally, she cannot claim expenses for legal proceedings.
  • Unjustified refusal to live with her husband: If the wife refuses to live with her husband without sufficient reasons, she may be denied maintenance. The court expects the wife to provide valid and justifiable reasons for her refusal. The determination of sufficient reasons may vary depending on the specific circumstances of each case. It is important to note that if the husband has engaged in bigamy or maintains a mistress, this can be considered a justifiable ground for the wife's refusal to live with him.
  • Living separately by mutual consent: If the husband and wife are living separately by mutual consent, the wife is not entitled to receive maintenance. However, it is important to differentiate this situation from a divorced wife, as a divorced wife's position is a result of a change in marital status. In cases of divorce by mutual consent, if the wife has waived her right to maintenance, she cannot later claim for maintenance.

In cases of divorce where marital relations have been terminated by mutual agreement, the wife retains the right to claim maintenance from her ex-husband as long as she remains unmarried or is unable to support herself. These exceptions are considered in determining whether a wife is eligible to receive maintenance based on the specific circumstances and grounds outlined in the applicable laws.

"Loved reading this piece by shentk?
Join LAWyersClubIndia's network for daily News Updates, Judgment Summaries, Articles, Forum Threads, Online Law Courses, and MUCH MORE!!"

Tags :

Category Others, Other Articles by - shentk