Section 125 of the Code of Criminal Procedure is now Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023, in force from 1 July 2024. The section number changed; the substance did not. It is a summary, secular remedy that lets a person who cannot maintain themselves claim a monthly allowance from someone who has sufficient means and is neglecting them.
Who can claim
- A wife, including, in settled law, a divorced wife who has not remarried
- Minor children, legitimate or illegitimate, married or not
- An adult child unable to maintain themselves because of a physical or mental abnormality or injury
- Father or mother unable to maintain themselves
Why it is called a secular remedy
It applies regardless of the religion of the parties. That is why it sits alongside, rather than inside, the personal law remedies, and why a claim under it can run in parallel with a claim under the Hindu Marriage Act or the Protection of Women from Domestic Violence Act. Courts adjust for overlap so the same amount is not recovered twice.
It applies regardless of the religion of the parties. That is why it sits alongside, rather than inside, the personal law remedies, and why a claim under it can run in parallel with a claim under the Hindu Marriage Act or the Protection of Women from Domestic Violence Act. Courts adjust for overlap so the same amount is not recovered twice.
When a claim can be refused
The section carves out situations: a wife living in adultery, a wife who without sufficient reason refuses to live with her husband, or where the couple is living separately by mutual consent. "Sufficient reason" is doing a lot of work in that sentence, and cruelty, or the husband keeping another woman, has been held to be sufficient reason to live separately.
Practical points
- The application goes before the Magistrate, and interim maintenance can be ordered while it is pending.
- Rajnesh v. Neha directions on affidavits of disclosure apply here too.
- Non-payment can be enforced, and the court has coercive powers where default is wilful.