CODE OF CRIMINAL PROCEDURE, 1973

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.

Power to reject sureties (1) A Magistrate may refuse to accept any surety offered, or may reject any surety previously accepted by him or his predecessor under this Chapter on the ground that such surety is an unfit person for the purposes of the bond : Provided that, before so refusing to accept or rejecting any such surety, he shall either himself hold an inquiry on oath into the fitness of the surety, or cause such inquiry to be held and a report to be made thereon by a Magistrate subordinate to him. (2) Such Magistrate shall, before holding the inquiry, give reasonable notice to the surety and to the person by whom the surety was offered and shall, in making the inquiry, record the substance of the evidence adduced before him. (3) If the Magistrate is satisfied, after considering the evidence so adduced either before him or before a Magistrate deputed under sub-section (1), and the report of such Magistrate (if any), that the surety is an unfit person for the purposes of the bond, he shall make an order refusing to accept or rejecting, as the case may be, such surety and recording his reasons for so doing : Provided that, before making an order rejecting any surety who has previously been accepted, the Magistrate shall issue his summons or warrant, as he thinks fit, and cause the person for whom the surety is bound to appear or to be brought before him.

Contents of bond The bond to be executed by any such person shall bind him to keep the peace or to be of good behaviour, as the case may be, and in the latter case the commission or attempt to commit, or the abetment of, any offence punishable with imprisonment, wherever it may be committed, is a breach of the bond.  

Commencement of period for which security is required (1) If any person, in respect of whom an order requiring security is made under section 106 or section 117, is, at the time such order is made, sentenced to, or undergoing a sentence of, imprisonment, the period for which such security is required shall commence on the expiration of such sentence. (2) In other cases such period shall commence on the date of such order unless the Magistrate, for sufficient reason, fixes a later date.

Discharge of person informed against If, on an inquiry under section 116, it is not proved that it is necessary for keeping the peace or maintaining good behaviour, as the case may be, that the person in respect of whom the enquiry is made, should execute a bond, the Magistrate shall make an entry on the record to that effect, and if such person is in custody only for the purposes of the inquiry, shall release him, or, if such person is not in custody, shall discharge him.