Maintenance Under Section 125 CrPC: Who Can Claim

A woman returns to her parents’ home in Jabalpur with a four year old child after her husband stops contributing to the household. He is employed. He simply says he will pay when he can. She has no income of her own, the child’s school fee is due, and a divorce case is nowhere on the horizon. She does not want to end the marriage. She wants money every month, starting now.

Maintenance under Section 125 CrPC is the remedy written for exactly that situation. Section 125 of the Criminal Procedure Code 1973 is now Section 144 of the Bharatiya Nagarik Suraksha Sanhita 2023, and it is a summary remedy before a magistrate, not a civil suit. It does not decide who was at fault in the marriage, it does not dissolve anything, and it applies whatever religion the parties follow. Its only question is whether a person with sufficient means has neglected or refused to maintain someone the law says he must support.

Who can claim

Claimant	Condition
Wife	Unable to maintain herself; includes a divorced wife who has not remarried
Minor child, legitimate or illegitimate	Unable to maintain itself; married or unmarried
Adult child, legitimate or illegitimate	Only where unable to maintain itself by reason of physical or mental abnormality or injury; a married daughter is excluded
Father or mother	Unable to maintain himself or herself

Two points inside that table carry most of the practical weight.

“Wife” includes a divorced wife. The explanation to the section says so expressly, and the entitlement continues until she remarries. This is what makes Section 125 useful long after the matrimonial case is over. In 2024 the Supreme Court confirmed that a divorced Muslim woman can maintain an application under this section, in addition to whatever the Muslim Women (Protection of Rights on Divorce) Act 1986 gives her.

An adult healthy son cannot claim. Nor can an adult daughter merely because she is unmarried and unemployed, under this section. The gateway for a major child is disability, and it has to be pleaded and proved with medical material. Maintenance of an adult unmarried daughter is available under other statutes, for instance Section 20 of the Hindu Adoptions and Maintenance Act 1956, but that is a civil route.

There is a further proviso for a married minor daughter. Where her husband does not have sufficient means, the magistrate may order her father to maintain her until she attains majority.

Parents can claim from a son and from a daughter alike. Grandparents cannot claim from grandchildren under this section, and parents in law cannot claim from a daughter in law. A widowed daughter in law has a separate right against her father in law in defined circumstances under Section 19 of the Hindu Adoptions and Maintenance Act 1956.

What the applicant must show

To get an order for maintenance under Section 125, three elements have to be established, and only three.

1. The relationship. Marriage, parentage or filiation. Where the marriage itself is denied, the magistrate makes a summary inquiry and can act on a prima facie finding, since this is not a court deciding matrimonial status.
2. That the respondent has sufficient means. This does not require proof of a specific salary. An able bodied person capable of earning is treated as having means, and a respondent who claims unemployment is expected to explain how he lives.
3. Neglect or refusal to maintain. A demand and its rejection helps, but a refusal can be inferred from conduct over a period.

When a wife is refused

Section 125(4) sets out three disqualifications, and they are pleaded in almost every reply, usually without material.

• She is living in adultery. Courts read this as a continuous course of conduct, not a single lapse, and it must be proved rather than alleged.
• She refuses without sufficient reason to live with her husband. The word doing the work is “sufficient”. The explanation to Section 125(3) says that a husband who has married another woman or keeps a mistress gives his wife just ground for refusing to live with him. Cruelty, being driven out, and a demand for dowry are also accepted as sufficient reason.
• They are living separately by mutual consent.

Being employed is not by itself a disqualification. The test is whether she is able to maintain herself at a standard reasonably close to the one she was accustomed to, not whether she has any income at all. A small salary that does not meet her reasonable needs does not extinguish the claim, though it will affect the amount.

How the case runs

The application goes to the Judicial Magistrate First Class, and in Jabalpur, as in any district with a family court, Chapter IX proceedings of this kind are dealt with by the family court under Section 7 of the Family Courts Act 1984.

Jurisdiction is unusually generous, which matters when the wife has moved back to her parents’ town. Under Section 145 BNSS, which carries forward Section 126 CrPC, the application can be filed in the district where the respondent is, or where he or the wife resides, or where they last resided together.

The steps in practice:

• Application with an affidavit, filed with the marriage or birth documents and whatever is known about the respondent’s income.
• Notice to the respondent, and with it the clock on interim maintenance starts.
• An application for interim maintenance and litigation expenses under the second proviso to the section, which should be moved on day one rather than after the main case has dragged. The statute says an interim application is to be disposed of, as far as possible, within 60 days from the date of service of notice.
• Affidavits of disclosure of assets and liabilities from both sides. Following the Supreme Court’s guidelines laid down in 2020, these are now standard, and they are the reason bank statements, salary slips, income tax returns, EPF records and property details need to be gathered early.
• Evidence, ordinarily in the presence of the respondent. If he wilfully avoids service or neglects to attend, the magistrate can proceed ex parte. An ex parte order can be set aside on good cause shown, on an application made within three months of the order, so a respondent who ignored the notice should not assume the door has closed permanently.

How much, and from when

There is no formula in the statute. The Rs 500 ceiling that once existed was removed in 2001, and quantum is now entirely a matter of judicial assessment.

What courts weigh: the status and standard of living in the matrimonial home, the reasonable needs of the claimant and the children, whether the wife gave up employment or education for the marriage, the respondent’s actual and potential income, his genuine liabilities including a home loan or dependent parents, the number of people he must support, and the cost of the children’s schooling and medical needs. A common working reference in argument is a share of the respondent’s net income, but no fixed proportion is prescribed and none should be promised.

On the starting date, the position is settled and favourable to claimants: maintenance is ordinarily to be awarded from the date of the application, not the date of the order. Where a case has taken two years, that difference is the largest single number in the file, and it is often overlooked when the order is drafted. Read the operative portion carefully and seek clarification immediately if the date is missing.

An order can later be increased or reduced under Section 146 BNSS, which carries forward Section 127 CrPC, on proof of a change in circumstances such as a promotion, a job loss, a new dependant, or the claimant’s remarriage.

Recovering the money, and the one year trap

An order for maintenance under Section 125 that is not enforced is worth nothing, and this section has a limitation period that catches people every year.

Under Section 125(3), unpaid maintenance is recovered by a warrant issued in the manner provided for levying fines, and the magistrate can sentence the defaulter to imprisonment for a term which may extend to one month for each month’s allowance that remains unpaid after execution of the warrant. But no warrant can be issued for the recovery of any amount due unless an application is made within one year from the date on which it became due.

That means arrears should be pursued as a rolling matter, not saved up. A claimant who waits three years and then files a single recovery application will find the earlier instalments outside the window. Diarise it quarterly.

Imprisonment is a mode of coercion, not a discharge. Serving the sentence does not wipe out the arrears, and courts also use attachment of salary, garnishee style directions to employers, and attachment of property to enforce these orders.

The other maintenance routes, and how they interact

• Section 24 and Section 25 of the Hindu Marriage Act 1955, for interim maintenance during a matrimonial case and permanent alimony at the end of it.
• Sections 18 and 20 of the Hindu Adoptions and Maintenance Act 1956, a civil suit route for a wife, children and aged parents.
• Section 20(1)(d) of the Protection of Women from Domestic Violence Act 2005, which allows the magistrate to order monetary relief, including maintenance, alongside protection and residence orders.
• The Maintenance and Welfare of Parents and Senior Citizens Act 2007, a tribunal route for parents and senior citizens that is faster and cheaper, with a statutory timeline for disposal, but with a cap on the monthly amount the tribunal can award. Parents seeking more than that cap still use Section 144 BNSS.

These remedies can run in parallel, but the Supreme Court’s 2020 guidelines require a party to disclose every pending or decided maintenance proceeding, and direct that an amount awarded in one be adjusted against another so there is no double recovery. Suppressing an existing order is the fastest way to lose credibility in the second court.

Maintenance work is part of our criminal and matrimonial practice, and where the parties are moving towards separation by agreement, the settlement terms are covered in our note on mutual consent divorce in India. Other procedural explainers are collected in our insights section.

This article is general information about the law and is not legal advice on any particular family. What a court awards depends on the incomes, the documents and the history of the parties, and small differences in the papers change the outcome. If you want to discuss your own circumstances, please use our contact page.