Maintenance under Section 125 CrPC is one of the most important legal remedies available in India for a wife, children, or aged parents who are unable to support themselves and are neglected or refused maintenance by a person legally bound to maintain them. Although the Code of Criminal Procedure, 1973 (CrPC) has now been replaced by the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the same protection continues almost unchanged as Section 144 of the BNSS. This guide explains who can claim maintenance, how to file a case, how much maintenance courts typically award, and what to expect once you approach the magistrate.
What Is Maintenance Under Section 125 CrPC (Now Section 144 BNSS)?
Section 125 CrPC — carried forward almost word-for-word as Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) — is a fast, inexpensive, and religion-neutral remedy meant to prevent vagrancy and destitution. It lets a magistrate order a person to pay a monthly allowance to their wife, minor children (legitimate or illegitimate), major children unable to maintain themselves, or aged/infirm parents, if that person has sufficient means but neglects or refuses to maintain them.
Because this is a criminal procedure provision rather than personal law, it applies to people of every religion and operates independently of, and in addition to, any maintenance rights available under personal laws such as the Hindu Marriage Act.
Who Can Claim Maintenance Under Section 125 CrPC / Section 144 BNSS?
The provision allows the following categories of people to claim maintenance from a person who has sufficient means but neglects to support them:
- Wife — including a wife who is unable to maintain herself, whether or not she is living separately for a valid reason.
- Minor children — legitimate or illegitimate, whether married or unmarried, until they attain majority.
- Major children — if they are unable to maintain themselves due to a physical or mental abnormality or injury.
- Aged or infirm parents — father or mother who is unable to maintain themselves.
Can a Divorced Wife Claim Maintenance Under Section 125 CrPC?
Yes. The definition of “wife” here specifically includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. A divorced wife who cannot support herself can still claim maintenance from her former husband, provided he has sufficient means. This right exists separately from any alimony settled at the time of divorce, though courts account for amounts already paid to avoid double recovery.
When Is a Wife NOT Entitled to Maintenance?
A wife is disentitled from claiming maintenance under this provision if:
- She is living in adultery,
- She refuses to live with her husband without any sufficient reason, or
- The couple is living separately by mutual consent.
How to File a Maintenance Case Against a Husband or Relative
Filing a maintenance case generally follows these steps:
- Step 1 — File the application: Filed before the Judicial Magistrate of the First Class in the district where the applicant resides, where the respondent resides, or where they last lived together.
- Step 2 — Notice to the respondent: The court issues notice to the husband/relative, who gets an opportunity to respond and contest the claim.
- Step 3 — Evidence and hearing: Both sides submit income details, proof of relationship, and evidence of neglect. Courts may examine bank statements, salary slips, or ITRs to assess the respondent’s means.
- Step 4 — Interim maintenance: If applied for, the court can grant interim maintenance pending final disposal so the applicant isn’t left without support.
- Step 5 — Final order: The magistrate passes a final order fixing the monthly amount, payable from the date of the order or, in some cases, from the date of the application.
Interim Maintenance Under Section 125 CrPC
Recognising that maintenance proceedings can take months or years, courts can grant interim maintenance — a monthly amount payable while the main case is still pending, so the applicant is not left destitute during litigation. An application for interim maintenance, with an affidavit of assets and income, can be filed along with the main petition, and courts are generally expected to decide it within a reasonable time, typically around 60 days from the date of notice to the respondent.
Factors Courts Consider When Deciding the Maintenance Amount
There is no fixed formula, but courts commonly weigh the respondent’s income and financial status, the applicant’s reasonable needs and standard of living, the number of dependents the respondent already supports, the applicant’s own earning capacity, and the status the parties enjoyed during the marriage. Courts have discretion in fixing the amount, and orders can later be modified if there is a material change in circumstances, such as a substantial rise or fall in either party’s income.
What Happens If the Order Is Not Complied With?
If a person fails to pay maintenance without sufficient cause, the magistrate can issue a warrant for recovery of the unpaid amount, similar to how fines are recovered, and may sentence the defaulter to imprisonment for up to one month per month’s allowance unpaid — though arrears can generally only be recovered for up to one year from the date they became due, unless the applicant was prevented by sufficient cause from claiming them earlier.
Maintenance Under Section 125 CrPC vs Maintenance Under Personal Law
This is not the only maintenance remedy available. A spouse may also seek maintenance under the Hindu Marriage Act, 1955, the Hindu Adoptions and Maintenance Act, 1956, or the Protection of Women from Domestic Violence Act, 2005, depending on their religion and circumstances. These remedies can often be pursued simultaneously, though courts adjust the total payable to prevent unjust enrichment through overlapping orders. If your matrimonial dispute also involves divorce, our guide on the mutual divorce procedure in India explains how maintenance is typically settled when both spouses agree to separate. Where the grievance also involves harassment or abuse, the powers of statutory bodies are discussed in our article on women’s commissions in matrimonial disputes.
Frequently Asked Questions
1. What is the difference between Section 125 CrPC and Section 144 BNSS?
They are essentially the same provision. Section 125 CrPC has been re-enacted as Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023, which replaced the CrPC with effect from July 1, 2024. The substance of the law — who can claim maintenance and under what conditions — remains largely unchanged.
2. Who can claim maintenance under Section 125 CrPC?
A wife (including a divorced wife who has not remarried), minor children, major children unable to support themselves due to physical or mental disability, and aged or infirm parents can claim maintenance from a person who has sufficient means but neglects or refuses to maintain them.
3. How is interim maintenance different from final maintenance?
Interim maintenance is a temporary monthly amount granted while the case is still being heard. Final maintenance is the amount fixed by the magistrate once the case is fully decided, after considering all the evidence.
4. Can a wife with her own income still claim maintenance?
Yes. Having some income does not automatically disqualify her if it is insufficient for a reasonable standard of living, though courts factor it in and may reduce the amount awarded accordingly.
5. What if the husband refuses to pay the maintenance ordered by the court?
The magistrate can issue a warrant to recover the unpaid amount as if it were a fine and may sentence the defaulter to imprisonment for up to one month for each month of default, subject to the statutory limits on recovering arrears.
Disclaimer: This article is intended for general informational purposes only and does not constitute legal advice. Maintenance laws involve fact-specific determinations, and outcomes vary from case to case. Please consult a qualified advocate for advice tailored to your specific situation.
