October 6, 2024

Power of certain armed force officers to disperse assembly When the public security is manifestly endangered by any such assembly and no Executive Magistrate can be communicated with, any commissioned or gazetted officer of the armed forces may disperse such assembly with the help of the armed forces under his command, and may arrest and confine any person forming part of it, in order to disperse such assembly or that they may be punished according to law; but if, while he is acting under this section, it becomes practicable for him to communicate with an Executive Magistrate, he shall do so, and shall thenceforward obey the instructions of the Magistrate, as to whether he shall or shall not continue such action

Use of armed forces to disperse assembly (1) If any such assembly cannot be otherwise dispersed, and if it is necessary for the public security that it should be dispersed, the Executive Magistrate of the highest rank who is present may cause it to be dispersed by the armed forces. (2) Such Magistrate may require any officer in command of any group of persons belonging to the armed forces to disperse the assembly with the help of the armed forces under his command, and to arrest and confine such persons forming part of it as the Magistrate may direct, or as it may be necessary to arrest and confine in order to disperse the assembly or to have them punished according to law. (3) Every such officer of the armed forces shall obey such requisition in such manner as he thinks fit, but in so doing he shall use as little force, and do as little injury to person and property, as may be consistent with dispersing the assembly and arresting and detaining such persons. COMMENTS Provisions contained in sections 130 and 131 cannot be treated as comparable and adequate to deal with situation requiring use of armed forces in aid of civil power as envisaged by the Armed Forces (Special Powers) Act, 1958 – The provisions contained in sections 130 and 131 cannot be treated as comparable and adequate to deal with the situation requiring the use of armed forces in aid of civil power as envisaged by the Armed Forces (Special Powers) Act, 1958. Section 130 makes provision for the Armed Forces being asked by the Executive Magistrate to disperse an unlawful assembly which cannot be otherwise dispersed and such dispersal is necessary for the public security. The said provision has a very limited application inasmuch as it enables the Executive Magistrate to deal with a particular incident involving breach of public security arising on account of an unlawful assembly and the use of the Armed Forces for dispersing such unlawful assembly. Similarly, under section 131, a commissioned or gazetted officer of the Armed Forces has been empowered to deal with an isolated incident where the public security is manifestly endangered by any unlawful assembly. The provisions in sections 130 and 131 cannot thus be treated as comparable and adequate to deal with the situating requiring the continuous use of Armed Forces in aid of the civil power for certain period in a particular area as envisaged by the Central Act—Naga People’s Movement of Human Rights v. UOI AIR 1998 SC 431.

Dispersal of assembly by use of civil force (1) Any Executive Magistrate or officer-in-charge of a police station or, in the absence of such officer-in-charge, any police officer, not below the rank of a sub-inspector, may command any unlawful assembly, or any assembly of five or more persons likely to cause a disturbance of the public peace, to disperse; and it shall thereupon be the duty of the members of such assembly to disperse accordingly. (2) If, upon being so commanded, any such assembly does not disperse, or if, without being so commanded, it conducts itself in such a manner as to show a determination not to disperse, any Executive Magistrate or police officer referred to in sub-section (1), may proceed to disperse such assembly by force, and may require the assistance of any male person, not being an officer or member of the armed forces and acting as such, for the purpose of dispersing such assembly, and, if necessary, arresting and confining the persons who form part of it, in order to disperse such assembly or that they may be punished according to law. COMMENTS Compensation in case of death by police firing – In case of death by police firing ordinarily a compensation of rupees twenty thousand is paid but it does not mean that in the case of death the liability of the wrong-doer is absolved when compensation of Rupees twelve thousand is paid. But as a working principle and for convenience and with a view to rehabilitating the dependants of the deceased such compensation is being paid, which is without prejudice to any just claim for compensation that may be advanced by the relations of the victims—Peoples’ Union for Democratic Rights v. State of Bihar AIR 1987 SC 355.

Enforcement of order of maintenance A copy of the order of maintenance [or interim maintenance and expenses of proceeding, as the case may be,] shall be given without payment to the person in whose favour it is made, or to his guardian, if any, or to the person to whom the allowance [for the maintenance or the allowance for the interim maintenance and expenses of proceeding, as the case may be,] is to be paid; and such order may be enforced by any Magistrate in any place where the person against whom it is made may be, on such Magistrate being satisfied as to the identity of the parties and the non-payment of the allowance [, or as the case may be, expenses,] due. COMMENTS Muslim Women (Protection of Rights on Divorce) Act, 1986 does not take away rights under sections 125 to 128 – From the preamble it is clear that in simplest language the Parliament has stated that the Act is for protecting the rights of Muslim Women. It does not provide that it is enacted for taking away some rights which a Muslim Woman was having either under the Personal Law or under the general law, i.e., sections 125 to 128 of the Code—Arab Ahemadhia Abdulla v. Arab Bail Mohmuna Saiyadbhai AIR 1988 Guj. 141.

Alteration in allowance [(1) On proof of a change in the circumstances of any person, receiving, under section 125 a monthly allowance for the maintenance or interim maintenance, or ordered under the same section to pay a monthly allowance for the maintenance, or interim maintenance, to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration, as he thinks fit, in the allowance for the maintenance or the interim maintenance, as the case may be.] (2) Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made under section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly. (3) Where any order has been made under section 125 in favour of a woman who has been divorced by , or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that— (a)   the woman has, after the date of such divorce, remarried, cancel such order as from the date of her remarriage; (b)   the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order,— (i)   in the case where such sum was paid before such order, from the date on which such order was made, (ii)   in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman; (c)   the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance [or interim maintenance, as the case may be,] after her divorce, cancel the order from the date thereof. (4) At the time of making any decree for the recovery of any maintenance or dowry by any person, to whom a monthly allowance [for the maintenance and interim maintenance or any of them] has been ordered to be paid under section 125, the Civil Court shall take into account that sum which has been paid to, or recovered by, such person as monthly allowance [for the maintenance and interim maintenance or any of them, as the case may be,] in pursuance of the said order. STATE AMENDMENTS MADHYA PRADESH ■ Section 127(1) –   For the words “father or mother” the words “father, mother, grandfather, grandmother” shall be substituted, w.e.f. 26-11-2004.—Vide Madhya Pradesh Act No. 15 of 2004. MAHARASHTRA ■ Section 127 –   in sub-section (1), in the proviso, for the words “five hundred rupees” the words “fifteen hundred rupees” shall be substituted. – Vide Maharashtra Act 21 of 1999. –   in sub-section (4),— (i)   for the words “monthly allowance”, where they occur for the first time the words “maintenance allowance” shall be substituted; (ii)   after the words “monthly allowance”, where they occur for the second time, the words “or, as the case may be, the lump sum allowance” shall be inserted – Vide Maharashtra Act No. 21 of 1999. RAJASTHAN ■ Section 127(1), proviso –   For the words “five hundred” occurring after the words “the monthly rate of” and before the words “rupees in the whole”, the words “two thousand five hundred” shall be substituted – Vide Rajasthan Act No. 3 of 2001. TRIPURA ■ Section 127(1), proviso –   For the words “five hundred rupees”, the words “one thousand five hundred rupees” shall be substituted – Vide Tripura Act No. 9 of 1999. WEST BENGAL ■ Section 127(1), proviso –   For the words “five hundred rupees”, the words “one thousand and five hundred rupees” shall be substituted—Vide Act No. 14 of 1995. –   The proviso to sub-section (1) shall be omitted – Vide West Bengal Act No. 33 of 2001

Procedure (1) Proceedings under section 125 may be taken against any person in any district— (a)   where he is, or (b)   where he or his wife resides, or (c)   where he last resided with his wife, or as the case may be, with the mother of the illegitimate child. (2) All evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed for summons-cases: Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper. (3) The Court in dealing with applications under section 125 shall have power to make such order as to costs as may be just.

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.] Explanation : For the purposes of this Chapter,— (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 part of each month’s 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. Explanation : If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him. (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. STATE AMENDMENTS MADHYA PRADESH ■ Section 125 –   For the marginal heading, the following marginal veading shall be substituted, w.e.f. 26-11-2004 namely :—     “Order for maintenance of wifes, children, parents and grandparents.”—Vide Madhya Pradesh Act No. 15 of 2004. ■ Section 125(1) –   For the words “five hundred rupees” the words “three thousand rupees” shall be substituted.—Vide Madhya Pradesh Act No. 10 of 1998. –   After clause (d), the following clause shall be inserted, w.e.f. 26-11-2004 namely :—     “(e) his grandfather, grandmother unable to maintain himself or herself.” – Vide Madhya Pradesh Act 15 of 2004. –   In the existing para, for the words “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 not exceeding three thousand rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct”, the words “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, mother, grandfather, grandmother 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” shall be substituted, w.e.f. 26-11-2004 – Vide Madhya Pradesh Act

Security for unexpired period of bond (1) When a person for whose appearance a summons or warrant has been issued under the proviso to sub-section (3) of section 121 or under sub-section (10) of section 123, appears or is brought before the Magistrate or Court, the Magistrate or Court shall cancel the bond executed by such person and shall order such person to give, for the unexpired portion of the term of such bond, fresh security of the same description as the original security. (2) Every such order shall, for the purposes of sections 120 to 123 (both inclusive), be deemed to be an order made under section 106 or section 117, as the case may be.

Power to release persons imprisoned for failing to give security (1) Whenever the District Magistrate in the case of an order passed by an Executive Magistrate under section 117, or the Chief Judicial Magistrate in any other case is of opinion that any person imprisoned for failing to give security under this Chapter may be released without hazard to the community or to any other person, he may order such person to be discharged. (2) Whenever any person has been imprisoned for failing to give security under this Chapter, the High Court or Court of Session, or, where the order was made by any other Court, the District Magistrate, in the case of an order passed by an Executive Magistrate under section 117, or the Chief Judicial Magistrate in any other case, may make an order reducing the amount of the security or the number of sureties or the time for which security has been required. (3) An order under sub-section (1) may direct the discharge of such person either without conditions or upon any conditions which such person accepts : Provided that any condition imposed shall cease to be operative when the period for which such person was ordered to give security has expired. (4) The State Government may prescribe the conditions upon which a conditional discharge may be made. (5) If any condition upon which any person has been discharged is in the opinion of the District Magistrate, in the case of an order passed by an Executive Magistrate under section 117, or the Chief Judicial Magistrate in any other case by whom the order of discharge was made or of his successor, not fulfilled, he may cancel the same. (6) When a conditional order of discharge has been cancelled under sub-section (5), such person may be arrested by any police officer without warrant, and shall thereupon be produced before the District Magistrate, in the case of an order passed by an Executive Magistrate under section 117, or the Chief Judicial Magistrate in any other case. (7) Unless such person gives security in accordance with the terms of the original order for the unexpired portion of the term for which he was in the first instance committed or ordered to be detained (such portion being deemed to be a period equal to the period between the date of the breach of the conditions of discharge and the date on which, except for such conditional discharge, he would have been entitled to release), the District Magistrate, in the case of an order passed by an Executive Magistrate under section 117, or the Chief Judicial Magistrate in any other case may remand such person to prison to undergo such unexpired portion. (8) A person remanded to prison under sub-section (7) shall, subject to the provisions of section 122, be released at any time on giving security in accordance with the terms of the original order for the unexpired portion aforesaid to the Court or Magistrate by whom such order was made, or to its or his successor. (9) The High Court or Court of Session may at any time, for sufficient reasons to be recorded in writing, cancel any bond for keeping the peace or for good behaviour executed under this Chapter by any order made by it, and the District Magistrate, in the case of an order passed by an Executive Magistrate under section 117, or the Chief Judicial Magistrate in any other case may make such cancellation where such bond was executed under his order or under the order of any other Court in his district. (10) Any surety for the peaceable conduct or good behaviour of another person ordered to execute a bond under this Chapter may at any time apply to the court making such order to cancel the bond and on such application being made, the Court shall issue a summons or warrant, as it thinks fit, requiring the person for whom such surety is bound to appear or to be brought before it.