INDEX

1. Section 125 of Code of Criminal Procedure, 1973 …2

2. Introduction …4
3. Meaning and Concept of Maintenance …4
4. As to who is Eligible to Claim Maintenance? …4
5. Sufficient Means to Maintain - Satisfaction of Magistrate …5
6. Types of Maintenance …6
7. Where to File Such an Application for Maintenance? …7
8. How to Get the Order of Maintenance Enforced? …7
9. Maintenance under Hindu Law …7
10. Maintenance under Muslim Law …9
11. Maintenance of Wife under Hindu and Muslim Law: Comparison …11
12. Important Supreme Court Cases on Maintenance Rights …12
13. Gender Inequality': Plea In SC Challenges The Constitutional …18
Validity of S. 125 Cr.P.C.

1|Page
Section 125 of Code of Criminal Procedure, 1973

Order for maintenance of wives, children and parents

1. If any person having sufficient means neglects or refuses to maintain;

a) his wife, unable to maintain herself, or
b) his legitimate or illegitimate minor child, whether married or not, unable to maintain
itself, or
c) his legitimate or illegitimate child (not being a married daughter) who has attained
majority, where such child is, by reason of any physical or mental abnormality or
injury unable to maintain itself, or
d) his father or mother, unable to maintain himself or herself,

A Magistrate of the first class may, upon proof of such neglect or refusal, order such
person to make a monthly allowance for the maintenance of his wife or such child, father
or mother, at such monthly rate as such magistrate thinks fit, and to pay the same to such
person as the Magistrate may from time to time direct;

Provided that the Magistrate may order the father of a minor female child referred to in
clause (b) to make such allowance, until she attains her majority, if the Magistrate is
satisfied that the husband of such minor female child, if married, is not possessed of
sufficient means.

Provided further that the Magistrate may, during the pendency of the proceeding
regarding monthly allowance for the maintenance under this Sub-Section, order such
person to make a monthly allowance for the interim maintenance of his wife or such
child, father or mother, and the expenses of such proceeding which the Magistrate
considers reasonable, and to pay the same to such person as the Magistrate may from time
to time direct;

Provided also that an application for the monthly allowance for the interim maintenance
and expenses of proceeding under the second proviso shall, as far as possible, be disposed
of within sixty days from the date of the service of notice of the application to such
person.

For the purposes of this Chapter–

2|Page
 a) “minor” means a person who, under the provisions of the Indian Majority Act,
1875 (9 of 1875) is deemed not to have attained his majority;
b) “wife” includes a woman who has been divorced by, or has obtained a divorce
from, her husband and has not remarried.
2. Any such allowance for the maintenance or interim maintenance and expenses of
proceeding shall be payable from the date of the order, or, if so ordered, from the date
of the application for maintenance or interim maintenance and expenses of
proceeding, as the case may be.
3. If any person so ordered fails without sufficient cause to comply with the order, any
such Magistrate may, for every breach of the order, issue a warrant for levying the
amount due in the manner provided for levying fines, and may sentence such person,
for the whole, or any port of each month’s allowance allowance for the maintenance
or the interim maintenance and expenses of proceeding, as the case may be remaining
unpaid after the execution of the warrant, to imprisonment for a term which may
extend to one month or until payment if sooner made;
Provided that no warrant shall be issued for the recovery of any amount due under this
section unless application be made to the Court to levy such amount within a period
of one year from the date on which it became due;
Provided further that if such person offers to maintain his wife on condition of her
living with him, and she refuses to live with him, such Magistrate may consider any
grounds of refusal stated by her, and may make an order under this section
notwithstanding such offer, if he is satisfied that there is just ground for so doing.
4. No wife shall be entitled to receive an allowance for the maintenance or the interim
maintenance and expenses of proceeding, as the case may be from her husband under
this section if she is living in adultery, or if, without any sufficient reason, she refuses
to live with her, husband, or if they are living separately by mutual consent.
5. On proof that any wife in whose favour an order has been made under this section is
living in adultery, or that without sufficient reason she refuses to live with her
husband, or that they are living separately by mutual consent, the Magistrate shall
cancel the order.

3|Page
Introduction

The main reason behind the concept of Maintenance is to see that if one of the
spouses is not independent financially so the other spouse helps him/her in order to make the
living of another person possible. In case of divorce or in the case where both the partners are
not living together, the spouse who is financially dependent on the other spouse can seek the
remedy of maintenance. So that she/he can maintain their life as when they lived together.

Generally, Maintenance is the amount which the husband pays to his wife after
divorce or the amount which the family member of the husband pays to the widow of their
son. Maintenance includes basic necessities like: Food, Shelter, Clothing etc.

The necessary thinks and comfort which a rational man expected to get.

Meaning and Concept of Maintenance

The maintenance is given by the person on whom the other person depends on. The
amount of the maintenance is dependent on the earning of the person and the necessities
which other person required and the necessities which a rational man needs to live a normal
life.

According to the Hindu Adoption and Maintenance Act, the person who is entitled to
get maintenance are wife, widow daughter in law, child, aged parents etc. and According to
Muslim Law, the person who is entitled to get maintenance are, wife, young children,
parents, another person within the prohibited degrees.

As to who is Eligible to Claim Maintenance?

When any person neglects or refuses to maintain-

1. Wife,
2. children,
3. parents,

They can claim maintenance by filing an application before the Magistrate. Such
maintenance is granted at such monthly rate, as the Magistrate thinks fit.

4|Page
 If you are a woman and have been divorced by your husband or you have obtained
divorce from your husband, you are entitled to maintenance. However, a wife cannot claim
maintenance in case she is living in adultery or she without any sufficient reason refuses to
live with her husband. If she remarries, after the date of her divorce, she cannot claim any
such maintenance. On any of these grounds, a husband may apply for cancellation of any
such order of maintenance. If husband and wife are living separately by mutual consent, even
in that situation wife is not entitled to claim any such maintenance.

An adoptive mother can claim maintenance: In the case of Baban Alias Madhav
Dagadu Dange v. Parvatibai Dagadu Dange1, the High Court of Bombay observed that
according to the definition given under the General Clause Act, the term “Father” includes
both biological as well as an adoptive father. Whereas the General Clause Act has not
expressed the term “Mother”, that does not mean that the term should be taken in a restrictive
sense. Now if the term “father” and “son” is given a wider interpretation, then there is no
valid reason that the term “mother” shouldn’t be given the same wider interpretation so as to
include “adoptive mother as well”.

Stepmother can claim maintenance: In the case of Kirtikant D. Vadodaria v. State of

Gujarat and Ors.2, the Hon’ble Supreme Court held that “a childless stepmother may
guarantee support from her step-son provided she is a widow or her mate, if living, is
unequipped of supporting and looking after her”. However, the Hon’ble High Court of
Karnataka in Ulleppa v. Gangabai3 provided its view to the judgment pronounced by the
Hon’ble Supreme Court in the case. The court observed that if it is proved that the stepmother
has alternative modes of supporting herself she may be unable to get support from her
stepsons.

Sufficient Means to Maintain - Satisfaction of Magistrate

Before any such order is passed in favour of the applicant, Magistrate is to be satisfied
that the person who neglects or refuses to maintain must have sufficient means.

In case one claims maintenance in the capacity of wife, she must be unable to
maintain herself. In case of claim of maintenance in the capacity of a child, legitimate or

1
(1978) 80 BOMLR 305
2
(1996) 4 SCC 479
3
2003 CriLJ 2566

5|Page
illegitimate minor children, whether married or not, they can claim maintenance, if they are
unable to maintain themselves.

Even if they have attained majority, they can still claim maintenance, but only when
they are unable to maintain themselves because of any physical or mental abnormality or
injury. Married daughter is not entitled to claim such maintenance. In case of minor married
female child, she would be entitled to claim maintenance from her father, if she is unable to
maintain herself, until she attains majority, if the Magistrate is satisfied that her husband is
not possessed of sufficient means. You as one of the parents are entitled to claim
maintenance, when you are unable to maintain yourself.

Types of Maintenance

1. Interim Maintenance
This maintenance is paid from the date of filing of the petition to the date of
the dismissal of the suit. Its main purpose is to meet the immediate needs of the
petitioner. It is the amount which is paid by the person who is financially independent
and upon whom the other person is financially dependent. This amount includes the
expenses of the proceeding as well as other expenses during the course of the
proceeding.

2. Permanent maintenance
It is the amount which is been paid by one party to another after the judicial
proceeding i.e. result is the dissolution of marriage or judicial separation.

Where to File Such an Application for Maintenance?

An application for maintenance may be filed against any person, liable to pay the
same, in any district-

1. where he is, or
2. where he or his wife resides, or
3. where he last resided with his wife, or as the case may be, with the mother of
the illegitimate child.

6|Page
How to Get Order of Maintenance Changed?

Whenever there is a change in the circumstances of any person receiving or paying

such monthly allowance for maintenance or interim maintenance, Magistrate may make such
alteration, as he thinks fit.

Sometimes, parties are litigating on civil side as well. Decision of litigation on civil
side may also call for change or variation in the order of maintenance. Where it appears to the
Magistrate that in consequence of any decision of a competent Civil Court, any order of
maintenance should be cancelled or varied, he is empowered to cancel the order or vary the
same accordingly. For example, where your wife has been divorced by you and she has
received whole of the sum payable under any customary or personal law on such divorce,
Magistrate may cancel such order of maintenance.

How to Get the Order of Maintenance Enforced?

You are entitled to copy of order of maintenance or interim maintenance and expenses
of proceeding free of costs. To get the order executed, you are to file an application before
the Magistrate at the place where the opposite party liable to make the payment may be.4

Maintenance under Hindu Law

In case of divorce or in the case where both the partners are not living together, the
spouse who is financially dependent on the other spouse can seek the remedy of maintenance.
So that she/he can maintain their life as when they lived together. The maintenance is given
by the person on whom the other person depends on. The amount to the maintenance is
dependant on the earning of the person and the necessities which other person required and
the necessities which a rational man needs to live a normal life.

Section 24 of the Hindu Marriage Act talks about the maintenance that how a
wife/husband can claim Interim maintenance. Only under the Hindu Marriage Act and Parsi
Marriage Act both husband and wife can claim for the interim maintenance. In other statutes,
only the wife can claim the Interim maintenance. Under Section 36 of the Divorce Act, the
wife may file the petition for Interim maintenance. Section 25 of the Hindu Marriage Act
deals with the concept of Permanent Maintenance as the amount which a person has to pay to

4
Section 128 of Code of Criminal Procedure

7|Page
another person as maintenance in gross sum or periodically or monthly as per the orders of
the court.

Maintenance of Wife under Section 18 of Hindu Adoption and Maintenance Act, 1956.

As per Section 18(1) of Hindu Adoption and Maintenance Act, 1956 the wife is
entitled to get the maintenance amount from her husband until she dies or he dies. the Hindu
wife is also entitled to take get maintenance even if she lives separately from her husband
under following grounds:

a) When the husband is liable for desertion.

b) When the husband is liable for cruelty.
c) When the husband is suffering from leprosy.
d) The husband is liable for bigamy.
e) The husband converts his religion without the consent of the wife.

Maintenance of Hindu wife under Section 125 of the Code of Criminal Procedure

As per Section 125 of the Code of Criminal Procedure, only a woman either take
divorce or given divorce by her husband and who hasn’t remarried any other man is entitled
to get maintenance. A married woman who refuses to live with her husband because her
husband is liable for desertion or liable for cruelty or is suffering from leprosy or liable for
bigamy or convert his religion without the consent of the wife can claim a special allowance
under this Act.

In D.Velusamy vs D.Patchaiammal5

The wife filed a suit against husband demanding the maintenance as per Section 125 of
the Code of Criminal Procedure. Here the court provides the Maintenance to the wife. Under
Section 125 of the Code of Criminal Procedure the person has to maintain:

a) His Wife, who unable to maintain herself.

b) His Legitimate or illegitimate minor child whether married or not married, who
unable to maintain itself.
c) His father and mother, who unable to maintain themselves.

5
(2010) 10 SCC 469

8|Page
In Gomaji vs Smt. Yashoda6

In this case, the petitioner is the Husband and the Respondent is the wife. The
Husband filed a case under Section 13 of the Hindu Marriage Act seeking a divorce from his
wife. And the Respondent filed an application under Section 125 of Code of Criminal
Procedure claiming Maintenance. Here the court accepts the divorce and passed the order
against Husband to give monthly Maintenance to his wife. Maintenance as an Award to Wife
under Section 23(2) of the Hindu Adoption and Maintenance Act.

Section 23 of the Hindu Adoption and Maintenance Act defines the people who can
claim the maintenance and how the maintenance can be calculated. The analysing factors of
the amount are:

a) Status and Position of the parties.

b) The basic necessity of the claimant.
c) The basic comfort which a reasonable man needs.
d) The value of the property whether movable and immovable, of the Respondent.
e) The income of the respondent.
f) The number of members who depended financially on the respondent.
g) The degree of relationship between the two.

Maintenance under Muslim Law

As per theories of Muslim Law, they consider the man to be superior to the woman.
They truly believed that the woman is not at all capable to maintain themselves as they are
directly dependant on their husbands. In Muslim Law, the relation of husband and wife is
considered as the most important one. That relation exists only if the wife is faithful and obey
her orders. In Muslim law, the married women have the right to get maintenance from her
husband even if she refuses to access to her husband and cannot be consummated, but if she
is too young and lives with her mother and father she is not entitled to get maintenance.

Muslim law provides the right to wife to get maintenance if she lives separately due to
the cruel nature of her husband and non-payment of dower. But she cannot claim
maintenance during the widowhood or iddat. Prior the divorced women do not have the right
to claim maintenance after the period of iddat and gets the amount of mehr only. But the

6
1996(1) Mh.L.J.423

9|Page
judgement given in the Shah Bano case enables divorced women to get maintenance from her
husband on reasonable ground and from the family of the husband after his death.

Maintenance of Muslim Women under Section 125 of the code of criminal procedure, 1973

The provision of under the code of criminal procedure secular in nature. They also deal with
the matter related to maintenance by a Muslim married woman. If a Muslim woman demands
the maintenance under Section 125 of the code of criminal procedure, she can be entitled to
get the maintenance only if she is not remarried.

In Mohd. Ahmed Khan v. Shah Bano Begum Case7

In this case, the husband gives divorce to his wife; she was 68 years old and has five
children. Under Muslim law, divorced women do not have the right to claim maintenance
after the period of iddat and gets the amount of mehr only. Shah Bano Begum files a case and
claims the maintenance under the Section 125 of the Code of Criminal Procedure where she
gets successful and gets the maintenance from her husband on reasonable ground and from
the family of the husband after his death.

After this historical judgment of Shah Bano Begum, the Muslim Community started
criticizing the court of law as according to them the judgment directly affect the provision of
their personal law. According to their law, divorced women do not have the right to claim
maintenance after the period of iddat and gets the amount of mehr only.

But the government on that time under the pressure of the Muslim community bring a
law which directly overrules the judgment. The government enacted The Muslim Women
(Protection of Rights on Divorce) Act, 1986. By the virtue of this Act, the old traditional law
which was followed by the Muslim community gets the authority. In this Act, divorced
women do not have the right to claim maintenance after the period of iddat and gets the
amount of meher only. Finally, all the case which are pending in court related to Muslim
women and their right to Maintenance under Section 125 of Code of Criminal Procedure
were disposed off.

7
AIR 1985 SC 945

10 | P a g e
In Danial Latifi & Anr vs Union of India8

In this case, the husband filed a petition against the order of the High Court of
Madhya Pradesh that he has to pay maintenance to his wife as per Section 125 of the Code of
Criminal Procedure. He submits the fact that he paid the meher amount as well as the
maintenance to his wife until her iddat period. Now as per his Muslim law he is not liable to
pay any amount as maintenance to his wife. The Supreme Court gives the judgment in
husbands favour as their case comes under The Muslim Women (Protection of Rights on
Divorce) Act, 1986 and the order of the High Court of Madhya Pradesh were as per the
Section 125 of the Code of Criminal Procedure so the order of the High Court is not valid.

Similarly in Rahamathulla vs Piyare9

The Muslim woman files a case against her Husband claiming Maintenance under
Section 125 of Code of Criminal Procedure. The Court rejected the petition on the similar
ground that she is entitled to get the Maintenance as per The Muslim Women (Protection of
Rights on Divorce) Act, 1986.

Maintenance of Wife under Hindu and Muslim Law: Comparison

A Hindu woman enjoys more rights than Muslim women. As per Section 18(1) of
Hindu Adoption and Maintenance Act, 1956 the Hindu wife is entitled to get the maintenance
amount from her husband until she dies or he dies. As per Section 125 of the Code of
Criminal Procedure, only Hindu Married women either take divorce or given divorce by her
husband and who hasn’t remarried any other man is entitled to get maintenance. A married
woman who refuses to live with her husband because her husband is liable for desertion or
liable for cruelty or is suffering from leprosy or liable for bigamy or convert his religion
without the consent of the wife can claim a special allowance under this Act.

But, under Muslim Law, the divorced women does not the right to claim maintenance
after the period of iddat and gets the amount of meher only and after The Muslim Women
(Protection of Rights on Divorce) Act, 1986 came in picture the Muslim Woman cannot
claim maintenance under Section 125 of Code of Criminal Procedure.

8
(2001) 7 SCC 740
9
1996 CriLJ 4322

11 | P a g e
Important Supreme Court Cases on Maintenance Rights

Following are the cases which have brought important changes to the laws related to
maintenance.

Mohd. Ahmed Khan v. Shah Bano Begum10

This Case’ judgement was claimed to be a milestone as it was a major step ahead of
the general practice of deciding the judgement of the cases on the basis of interpretation of
the personal law and also lay an emphasis on the need to implement the Uniform Civil Code.
It also took a note of different personal laws and the need to give a recognition and it also
addresses the issue of gender equality and perseverance in matters of religious principles.

Facts

The appellant-husband who was an advocate by profession was married to the

respondent-wife in the year 1932, they had five children-three sons and two daughters. In
1975, the appellant drove the respondent out of the matrimonial home.

In April 1978, the respondent filed a petition against the appellant under section 125
of the Code of Criminal Procedure, in the Court of the Judicial Magistrate Indore, asking for
maintenance for herself and for her 5 children at the rate of Rs. 500 per month, in view of the
professional income of the appellant which was about Rs.60,000 per year, the section puts a
legal obligation on a man to provide for his wife during the marriage and after divorce too if
she is not able to earn for herself.

Divorce Announced

In the month of November, 1978, the appellant did announced the divorce to the
respondent by an irrevocable talaq and defended himself on the grounds of the Muslim
Personal Law in India by stating that she had ceased to be his wife by reason of the divorce
granted by him, required that the husband to only provide maintenance for the iddat period
after the divorce that had not kept him under no obligation to provide maintenance for her
after the completion of iddat period.

10
AIR 1985 SC 945

12 | P a g e
Iddat

The Iddat is the waiting period for a woman which must be observed, After the death
of her husband or the divorce announced by her husband, before she can marry another man.
The length of the iddat period is usually for three months, but in case the woman is pregnant,
the period carries on until the birth of the child.

Supported the Petitioner

The Khan’s argument was supported by the All India Muslim Personal Law Board
which argued that the courts cannot take the liberty of interfering in the matters coming under
the Muslim Personal Law, contended further that it would be a violation of the Muslim
Personal Law (Shariat) Application Act, 1937.

In 1985, After the acknowledgement of the detailed arguments, the decision was passed by
the Supreme Court of India, Keeping its decision on the question whether Cr.P.C., 1973
which applies to all Indian citizens regardless of their religion, can be applied in this case.

Verdict

The then CJI, Y.V.Chandrachud upheld the decision of the High Court that gave
orders for maintenance to Shah Bano under the Code of Criminal Procedure, 1973. For its
part, the court did increase the sum of money to be given under the maintenance.

Whether Magistrate can grant Interim Maintenance

Savitri W/O Shri Govind Singh v. Shri Govind Singh Rawat11

Under this case, the Supreme Court did come into the questions of the provisions that
whether the Interpretation of the Cr.P.C. Provides the Provision for Interim Maintenance.

Facts

The petitioner filed a petition under section 125 of the Cr.P.C., 1973, before the
Magistrate for an order against her husband directing him to pay the maintenance. Thereafter,
she filed another application for an interim order directing her husband to pay a reasonable
sum by way of maintenance pending disposal of the main application. The Magistrate

11
1986 AIR 984

13 | P a g e
declined to take a call for an interim order due to reason that, there were no express
provisions given Under the Code enabling a Magistrate to pass such order.

Verdict

It has already been realized that there are no express provisions in the Code which
give the authority to the magistrate to direct an interim order directing payment of
maintenance pending disposal of an application for maintenance, and on the other hand, the
code does not also expressly prohibits the making of such an order. The question is that
whether such a power can be implied to be vested in a magistrate having regard to the nature
of the proceedings under Section 125,

Under the Section: The Section 125 of the code confers power on a magistrate to direct a
person having sufficient means but who neglects or refuses to maintain:

 His wife, unable to maintain herself; or,

 His legitimate or illegitimate minor child, whether married or not, unable to maintain
itself; or,
 His legal or illegitimate child (should not be a married daughter) who did attain
majority, and where such child is because of any physical or mental abnormality or
injury is not being able to maintain itself; or,
 His father or mother, unable to maintain himself or herself, upon proof of such neglect
or refusal, to pay a monthly allowance for the maintenance of his wife or such child,
father or mother, as the case may be, at such monthly rate not exceeding five hundred
rupees in the whole as such Magistrate thinks fit. Such allowance shall be payable
from the date of the order, or, if so ordered from the date of the application for
maintenance.

Interpretation

The above provisions’ interpretations show that they are intended to provide for a
preventive remedy for securing payment of maintenance which can be granted quickly and in
deserving cases. In the view of foregoing it is the duty of the court to interpret the provisions
in Chapter IX of the Code, in such a manner that the decision given by the court keeping in
mind about the enacted code on whose behalf the decision is being taken, would not defeat
the very object of the legislation.

14 | P a g e
 In the absence of express prohibition, it is appropriate to construe the provisions as
conferring an implied power on the magistrate to direct the person against whom a petition is
being filed under Section 125 of the code to pay some amount of money by way of
maintenance to the applicant pending final disposal of the application.

It has been acknowledged to be quite common that applications made under section
125 of the code also take several months for being disposed of finally, and regularly to Reap
the benefits of the proceedings under section 125, the applicant should be alive until the date
of the final order and that the applicant can do in a larger number of cases only if an order
stated for payment of interim maintenance is passed by the court.

Conclusion

The court concluded by mentioning that the Magistrate may insist upon an affidavit
being filed by or on behalf of the applicant concerned stating the grounds in support of the
claim for interim maintenance to satisfy himself that there is a prima facie case for making
such an order.

What Amount will be reasonable for the Wife as Maintenance?

Kulbhushan Kumar vs Raj Kumari & Another12

The Maintenance was given to wife was determined by the court as the decision was taken
keeping in mind about the situation, as the wife was receiving money from her father.

Facts

The appellant-husband and the respondent-wife were married in the month of May
1945. Sometime later, the husband did not want to live with the wife, and there was a
complete estrangement between both of them. A daughter was born in August 1946. In 1951,
the respondent sent a registered letter claiming maintenance, on the behalf of herself and the
daughter, and by the year 1954, she filed the suit for maintenance.

The High Court took into account of the fact that the appellant was a Reader in
Medicine receiving a salary of about Rs.700 and more than Rs.250 per month by way of

12
1971 AIR 234

15 | P a g e
private practice. The date of the institution of the suit was fixed by the High Court for the
payment of the maintenance to the respondent.

The High Court adjudged, fixed the maintenance payable to the respondent, under the
Section 23(2) of the Hindu Adoptions and Maintenance Act, 1956, at Rs.250 subject to a
limit of 25% per month of the income as determined by the income-tax authorities, and Rs.
150 as the maintenance of the daughter. In this appeal to the Supreme Court by the
respondent on the question raised for the allegiance of the maintenance payable to the wife.

Verdict

The Court Held that Even if the wife had received some money from her father
regularly; it can only be recognised as a gift, not as her income. Therefore, it could not be
taken into an account under Section 23(2)(d) of the Act in determining the amount of
maintenance; There was no evidence of her inheriting any property of her father on his death;

The amount payable by way of maintenance depends on the facts of each case and the
Judicial Committee, in Mt. Ekradeshwari v. Homeshwar13, did not lay down any principle
relating to the proportion of the husband’s ‘free-income’ which would be payable as
maintenance to the wife.

In the circumstances of this case, no exception could be taken to the amount fixed by
the High Court as well as the date, from which the maintenance would be claimable. In
determining the limit at 25% of the ‘free income’ of the appellant, amounts payable towards
income tax, compulsory provident fund, and other expenses for maintaining the car for
professional purposes as allowed by the income tax authorities should be allowed as
deductions from the husband’s total income.

Whether a wife has a right to get maintenance from her husband who is already
divorced?

Shabana Bano v. Imran Khan14

In this Case, the Supreme Court did come across the situation where the wife after
getting divorced from her husband appeals for Maintenance.

13
A.I.R. 1929 P.C. 128
14
AIR 2010 SC 305

16 | P a g e
Facts

The Appellant Shabana Bano was married to the respondent Imran Khan according to
Muslim rites at Gwalior in the month of November in 2001.

Demand for the Dowry: According to the appellant, at the time of marriage, necessary
household goods to be used by the couple were given. However, despite this, the respondent
husband and his family members treated the appellant with cruelty and continued to demand
more dowry. Threatening the Appellant: Sometime After, the appellant became pregnant and
was taken to her parents’ house by the respondent. The respondent threatened the appellant
that in case his demand for the dowry is not met by the appellant’s parents, then she would
not be taken back to her matrimonial home even after delivery.

Appellant delivered a child in her parental home. Since even after delivery,
respondent did not think it proper to discharge his responsibility by taking her back, she was
constrained to file a petition under Section 125 of the Code of Criminal Procedure against the
respondent in the Court of Family Judge, Gwalior. It was averred by the appellant that
respondent has been earning a sum of Rs. 12 thousand per month by doing some private work
and she had no money to maintain herself and her new-born child. Thus, she claimed a sum
of Rs.3 thousand per month from the respondent towards maintenance.

Verdict

The court did hold that according to the Section 20 of the family act, which makes the
situation crystal clear that the provisions of the Act shall have overriding effect on all other
enactments in force dealing with the issue of maintenance.

The appellant’s petition under Section 125 of Cr.P.C. would be maintainable before
the Family Court as long as the appellant does not remarry.

The Quantum of Maintenance which will be awarded, according to the Section 125
Cr.P.C. cannot be restricted for the Iddat Period Only.

17 | P a g e
Gender Inequality': Plea In SC Challenges The Constitutional Validity Of S. 125
CrPC15

A plea has been moved before the Supreme Court, challenging the constitutional
validity of Section 125 of CrPC, on the grounds of gender inequality. The petition was filed
by one Vivek Bhatia through Advocates M S Vishnu Shankar and Sriram Parakkat by the
order of the Family Court of Dehradun, whereby he was directed to pay monthly allowance to
his wife under the aforesaid provision. The Petitioner's case is that he has been obligated to
provide maintenance to his divorced wife on a presumption that since he has a healthy body
and a healthy mind, he must be able to maintain his wife. Moreover, he asserts that the court
failed to take note of the fact that the Petitioner was merely a high school graduate, having a
diploma in aircraft maintenance and was presently unemployed. His ex-wife on the other
hand, was a graduate in English, sociology and psychology and was capable of earning a
living for herself but refused to work.

Assailing the aforementioned presumption inherent in Section 125 CrPC, the

Petitioner has raised his plea on the following grounds:

1. That the provision violates general equality provided under Article 14 of the
Constitution and it, contrary to Article 15 of the Constitution, is prima facie
discriminatory on the ground of gender, without any reasonable classification:
i. Firstly, as its scope is limited to wives only and husbands cannot claim
maintenance from their well-off wives.
ii. Secondly because it proceeds on a presumption that males have the ability
to earn if they are healthy and able-bodied whereas a woman has the
ability to earn when she has a source of sufficient income of her own,
independent of their husband.
2. That initially the obligation of providing maintenance was put upon husbands
because post marriage, a woman relinquished her personal property rights.
However, since this rule is no longer in force, the law on maintenance must be
made 'mutual and gender-neutral'.
3. That the provision, contrary to the ratio of Preeti Srivastava (Dr) v. State of
M.P.16, does not serve the general good of all or public interest as the husbands

15
https://www.livelaw.in/top-stories/gender-inequality-plea-in-sc-challenges-the-constitutional-
validity-of-s-125-crpc-147747.

18 | P a g e
 who are in genuine need of maintenance are instead of being supported, burdened
with providing maintenance to their wives, even if the wife is capable of earning a
living.
4. That in Joseph Shine v. Union of India, WP17, the Apex Court held that Article
15(3) of the Constitution does not apply to laws made before commencement of
the Constitution. Therefore, Section 125 CrPC should not enjoy the protection of
Article 15(3) in as much as it was duplicated from a pre-constitutional law, i.e.,
Section 488 CrPC, 1898. However, it was clarified that the petition did not seek to
not allow women to be granted maintenance but rather sought equality before law
and equal protection of laws.
5. That in UK, the source of Indian jurisprudence, maintenance laws under
Matrimonial Causes Act, 1973 are absolutely gender neutral.
6. That in the US all States have gender neutral alimony laws and thus maintenance
may be granted to either of the spouse, depending on the facts of the case.
7. That since the Constitution is a living document, as held on numerous occasions,
the Constitutional Morality must be evolved with evolution of societal perception
and change in societal morality. Hence, while providing maintenance was solely
the husband's responsibility at one point of time, the first pillar of the basic
structure of our constitution in the contemporary society is equality and thus the
roles of the spouses in the marriage must be reconsidered.

Based on the aforementioned arguments, the Petitioner has prayed before the court to declare
Section 125 CrPC unconstitutional or read it down in a manner that it is gender-neutral.

16
(1999) 7 SCC120
17
(Crl) No. 194/2017

19 | P a g e