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
The Explanation to Section 144(1) puts the divorced wife point beyond argument: "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. The guide on who can claim maintenance and how much works through the categories with the case law behind each of them.
- Proof of the relationship: marriage certificate, birth certificate, or ration card
- Evidence of the respondent's income: salary slips, ITR, bank statements, property records
- Your own income and expenses, stated honestly, because concealment is fatal
- Proof of neglect or refusal to maintain, including any written demand
- School fee receipts, medical bills and rent, where children are involved
- The affidavit of assets and income in the prescribed format
Where you file it, and how long it takes
Section 145 lets proceedings be taken in any district where the person is, where he or his wife resides, where he last resided with his wife, or where his father or mother resides. For a wife who has returned to her parents in Bengaluru, that usually means she can file here rather than travel to where the husband lives. The application goes before a Judicial Magistrate of the first class, but where a Family Court has been established, Section 7(2)(a) of the Family Courts Act, 1984 vests that Magistrate's maintenance jurisdiction in the Family Court. In Bengaluru that means the Family Courts at Nyaya Degula on H. Siddaiah Road, not the Magistrate's complex.
The third proviso to Section 144(1) says an application for interim maintenance and expenses of the proceeding should, as far as possible, be disposed of within sixty days from service of notice. That is a target rather than a guarantee, but it is worth pressing when the matter drags. Section 145(2) also allows the Magistrate to proceed ex parte where the respondent is wilfully avoiding service or wilfully failing to attend, and any such order can be set aside for good cause on an application made within three months.
Annex proof of the marriage, or of the divorce if you claim as a divorced wife, birth certificates for the children, whatever you have on the other side's income, and your own bank statements, rent agreement, school fee receipts and medical bills. Both sides file the affidavit of assets and liabilities in the Rajnesh format.
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. On that last point the section says so itself: the Explanation to Section 144(3) provides that if a husband has contracted a marriage with another woman or keeps a mistress, that is a just ground for his wife's refusal to live with him. So an offer to take her back, made after a second marriage, is no answer to the claim.
A divorced Muslim woman can use this section
This was argued for decades and is now settled. In Mohd Abdul Samad v. State of Telangana (2024) the Supreme Court held that the secular maintenance provision applies to a divorced Muslim woman, and that the Muslim Women (Protection of Rights on Divorce) Act, 1986 gives her an additional remedy rather than taking this one away. Section 3 of the 1986 Act separately entitles her to a reasonable and fair provision and maintenance within the iddat period, to her mahr, and to the return of property given to her before, at or after the marriage. The two routes can be considered together, and the guide on a divorced Muslim woman's right to maintenance explains which one suits which set of facts.
Parents have a faster route as well
A father or mother unable to maintain themselves falls squarely within Section 144(1)(d). But there is also the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, which is usually quicker. Under Sections 4 and 5 a senior citizen or parent applies to a Maintenance Tribunal rather than a court, an authorised person or organisation can apply if the parent is incapable, the Tribunal can act on its own motion, interim maintenance can be ordered meanwhile, and the Act sets a timeline of ninety days from service of notice, extendable once by thirty days for recorded reasons. The guide on maintenance for parents and senior citizens covers the tribunal process and the eviction powers that go with it.
Enforcing the order
Section 144(3) allows the Magistrate, for every breach, to issue a warrant for levying the amount in the manner provided for levying fines, and to sentence the defaulter to imprisonment for up to one month for each month's allowance that remains unpaid after execution of the warrant. There is a trap in the proviso: no warrant issues for any amount unless the application to levy it is made within one year of the date it fell due. Arrears left to accumulate quietly for three or four years are largely irrecoverable by this route.
Section 147 then makes the order portable: it can be enforced by any Magistrate in any place where the defaulter happens to be, once that Magistrate is satisfied about identity and non-payment. Moving out of Bengaluru is not an escape. Section 146 works the other way, letting either side apply to alter the allowance on proof of a change in circumstances, and requiring cancellation where a divorced wife has remarried.
Practical points
- The application goes before the Magistrate, or the Family Court where one exists, and interim maintenance can be ordered while it is pending.
- Rajnesh v. Neha directions on affidavits of disclosure apply here too.
- Maintenance is payable from the date of the order or, if the court so directs, from the date of the application, so file early rather than perfectly.
- Non-payment can be enforced, and the court has coercive powers where default is wilful.