Conditions For Passing of Maintenance Order and Alteration of Order of Allowance

By | August 26, 2019
The Essential Conditions For Passing Of A Maintenance Order And Alteration Of Order Of Allowance

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Conditions For Passing of Maintenance Order and Alteration of Order of Allowance | Overview

Introduction

According to the Hindu Adoption and Maintenance Act, 1956, maintenance includes “provision for food, clothing, residence, education and medical attendance and treatment. In the case of an unmarried daughter, it also includes all reasonable expenditure of an incident to her marriage”[1]. Besides the personal law, the Code of Criminal Procedure also provides for maintenance on the fulfilment of certain essential conditions.

The term maintenance has not been defined in the code but it has been adjudged by the apex court to have the same import as under Section 3(b) of the Hindu Adoption and Maintenance Act, 1956[2].

Under Section 125 of Cr.P.C, maintenance can be claimed as a legal right by a wife, minor children, unmarried daughters and parents from a person who refuses or neglects to maintain them. The purpose of the section is to prevent criminal conduct as a result of destitution and starvation.

The lawmakers presumed that if am able-bodied person refused to maintain his kin who are not able-bodied like him, they may take the path of criminality to satisfy their needs. Thus, Sections 125 to 128 was incorporated into the Code.

Essential Conditions for Granting Maintenance

Maintenance under Cr.P.C is not granted to everyone and under any circumstances. The code, under Section 125, vests the right to claim maintenance only upon the wife, minor children, unmarried daughter and parents and under special circumstances which are as follows:

  1. Sufficient means to maintain:

According to §125(1), maintenance can be claimed from a person only if he has “sufficient means” to maintain the person or persons claiming such maintenance. The expression “sufficient means” is subjective since sufficient for one may not be sufficient for another. Also, the term “means” may include money, property, business etc. which has also been not specified by the law.

Therefore, to fill the vacuum created by the absence of any legal explanation with this regard, the courts have clarified the meaning and extent of each of these words.

In Chandrapal v. Harpyan, the court held that ‘means’ of a person “does not mean the tangible property or sources of income of the husband” [3]. The court implied that it included even the ability of the person to earn and maintain his family. This was said in most clear terms in Chander Prakash v. Sheila Rani.

The court held that “if a man is healthy and ‘able-bodied’ he must be held to possess the means to support his wife, children and parents” [4]. These cases establish the rule that a person cannot evade his responsibility to maintain his dependants claiming his insolvency or joblessness.

Now, the phrase “able-bodied” has also been sifted by the courts several times. The law has to be impartial irrespective of who the victim is and who the offender is. It cannot be expected from a person to give up all his means as maintenance and starve himself to death. Thus, able-bodied cannot just mean physical and mental fitness and ability to earn.

It must include social factors such as “opportunity to earn, education or experience in a field to be able to work and also includes finance”[5]. In Ali Hossain v. Baby Farida Khatoon[6], the court observed that when it is said that a person is able-bodied, it is presumed that he is able to pay maintenance and the court must take into account every piece of evidence required before deciding the quantum of maintenance to be paid.

Dealing with the word ‘sufficient’, whether the means are sufficient or not has to be determined to take into consideration the standard of living of the claimant, the earnings or income of the husband and other financial expenses or commitments of the person against whom the maintenance is claimed. In Raibari Behera[7], the court held that any debt outstanding against the person who is liable to pay maintenance or any other urgent financial commitments should be considered before fixing the amount of maintenance.

  1. Neglect or Refusal to Maintain:

125 (1) states that there must be clear dereliction or refusal to maintain the claimant on the part of the respondent. Such neglect or refusal can be expressed or implied and by words or by conduct. The scope of neglect or refusal depends upon who the claimant is. For instance, in case the claimant is a wife, neglect or refusal will mean something more than a mere failure or omission.

The husband must in clear words deny the maintenance to the wife or make it difficult for her to live in that house. However, in case of a minor child who is not able to exercise his will or has no volition of itself, mere failure or omission may amount to neglect or refusal. The same was observed by the Andhra Pradesh High Court in Chand Begum v. Hyderbaig.[8]

The courts have inclined towards a liberal interpretation of the expression “neglects or refuse to maintain”. No straight jacket formula can be established to determine whether the wife or any other claimant could successfully prove that the person neglected or refused to maintain him/her. In Sahu v. Khagyodhar Sahu,[9] the court averred that it shall depend upon the facts and circumstances of each case.

  1. A person claiming Maintenance must be unable to maintain itself:

The provisions under Sections 125 to 128 are civil in nature. They have been incorporated in criminal law with the sole intention to provide speedy and inexpensive justice that will prevent vagrancy and augmented crime owing to such vagrancy. Now, a wife who has been gifted a huge amount of wealth by her father along with a residential apartment, cannot claim that she has a right to maintenance because her husband refused to maintain her.

Like any other provision under the Criminal Procedure Code, this provision also needs to be used wisely and to bring the other party to justice and not to cause gains or profits to the suffering party. Thus, the applicant’s inability to maintain himself/herself is the sine qua non for the grant of maintenance under §125.

Now, unable to maintain herself in §125 (1) (a) does not mean that the wife should be “absolute destitute and should be on the street, should beg and be in tattered clothes”[10]. The expression connotes that the person has no other sufficient means to maintain himself/herself than the person against whom the maintenance is claimed. The inability to maintain oneself has nothing to do with the earning capacity of the claimant.

The logic applied in the case of able-bodied person does not apply to wives or children when they claim maintenance. Unless the claimant has an actual source of income and such income is sufficient to meet the basic necessities, a legal right to claim maintenance remains existent and enforceable.

There are no specific criteria to determine the inability of the claimant under this provision. In Shanyani Haidar v. Bharati Haidar, the court asserted that “the statement of the wife that she has been able to survive with great difficulty is sufficient compliance of Section 125 CrPC” [11].

In Rewati Bai v. Jageshwar[12], ordering allowance of Rs. 350/- per month to the wife, the M.P. High Court observed that the fact that she was compelled to work as a labourer to survive was by itself not sufficient to establish that the applicant was able to maintain herself.

To claim maintenance under this provision, the applicant must categorically aver in the application that s/he is unable to maintain her/himself. However, failure to add in the petition about the inability of the claimant does not become the sole reason for vitiating the trial.

In Mohinder Singh v. Joginder Kaur[13], the wife filed an application for maintenance under §125 but did not mention about her inability to maintain herself in the petition. At the time of taking evidence, however, it was brought out that in the wife was unable to maintain herself and so the magistrate granted her claims which were also upheld by the Hon’ble High Court.

  1. Special Conditions when Maintenance is claimed by wife:

Under Section 125 (4), two exceptions to the grant of maintenance have been provided specifically when the applicant is the wife. According to this section, the husband will be exempted from maintenance if the wife has maintained “outright adulterous conduct and she is in a quasi-permanent union with the man with whom she is committing adultery”[14].

Also, if the wife refuses to live with the husband under the same roof without any reasonable ground, she cannot be said to possess the right to maintenance. In Saygo Bai v. Chueeru Bajrangi[15], the court said that if the husband has contracted a second marriage or keeps a mistress, it shall be considered to be a just ground for the refusal of the wife to stay with him. The court held that no wife with any self-esteem will ever bear the pain of keeping with the mistress of her husband.

Alteration in Allowance Ordered by the Magistrate

After the Magistrate is satisfied that the above-mentioned conditions have been duly fulfilled, he shall order the person to pay a monthly allowance to the claimant and if necessary, interim maintenance during the pendency of the matter. This amount of maintenance payable to the claimant can be altered under two circumstances:

  1. On proof of a change in circumstances of the parties or any of the parties, the Magistrate can alter the order of maintenance or interim maintenance as the case may be.
  2. Under Section 127 (1), if the Magistrate believes that a valid case before a competent civil court is pending and the judgment in such court might vary the amount of maintenance, then the Magistrate may alter the allowance.

Besides these, no application can be filed for an increase in the allowance for the reason that they already allow maintenance is not sufficient to meet her needs.


[1] §3 (b), Hindu Adoption and Maintenance Act, 1956.

[2] Mangat Mal v. Punni Devi, (1995) 6 SCC 88

[3] Chandrapal v. Harpyan, 1991 Cri. L.J 2847 (All).

[4] Chander Prakash v. Sheila Rani, AIR 1968 Del 174.

[5] Ratanlal & Dhirajlal, Commentary on the Code of Criminal Procedure 1132 (18th ed. 2006).

[6] Ali Hossain v. Baby Farida Khatoon, 1998 Cri. L.J 2762 (Cal).

[7] In Re: Raibari Behera, 1983 CrLJ 125 (Ori).

[8] Chand Begum v. Hyderbaig, 1972 Cri. L.J 1270 (AP).

[9] Sahu v. Khagyodhar Sahu, 1991 (2) Crimes 541 (Ori).

[10] Abdul Salim V. Najima Begum 1980 Col. 3 232 (All).

[11] Shanyani Haidar v. Bharati Haidar 2004 Cri. L.J NOC 62.

[12] Rewati Bai v. Jageshwar, 1990 Cri. L.J 40 (MP).

[13] Mohinder Singh v. Joginder Kaur, 1982 Cri. L.J 127 (Del).

[14] Kasthuri v. Ramaswamy, 1979 Cri. L.J 741 (Mad).

[15] Saygo Bai v. Chueeru Bajrangi, 2010 13 SCC 762.


  1. The functionaries under the code of criminal procedure, 1973(Opens in a new browser tab)
  2. Maintenance of divorced woman in Muslim law and implication of Section 125 of Cr.P.C.