Maintenance under Section 125 CrPC (now Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023) lets a wife, child, or parent who cannot maintain themselves claim a monthly allowance from a person who has sufficient means but neglects or refuses to support them. The remedy covers a wife (including a divorced wife who has not remarried), legitimate and illegitimate children, an adult child unable to maintain itself because of a disability, and aged parents. Since the 2001 amendment there is no ceiling on the amount, interim maintenance is available during the case, and courts fix the quantum from the standard of living and the income of both sides. Rulings from Shah Bano (1985) to Rajnesh v. Neha (2020) and Mohd. Abdul Samad (2024) settle who can claim and how much.
This article sets out who can claim maintenance under Section 125 CrPC, what an applicant must prove, how the quantum is fixed, the procedure and enforcement, the Section 144 BNSS equivalent, and the leading judgments.
Section 125 is a secular, summary remedy. It applies across religions and personal laws, and it exists to stop a dependant from being pushed into destitution when the person legally bound to support them refuses to do so. The Supreme Court has repeatedly placed it within Article 15(3), read with Article 39, of the Constitution of India, 1950, treating it as a measure of social justice rather than a private matrimonial claim.
The provision has also changed address. From 1 July 2024, the Code of Criminal Procedure, 1973 was replaced by the Bharatiya Nagarik Suraksha Sanhita, 2023, and Section 125 became Section 144 of the new Sanhita. The wording carried over almost unchanged, so the case law built over five decades continues to apply. Throughout this chapter, the CrPC section numbers are given first, with the BNSS equivalent alongside, because both regimes are in live use: old and pending cases run under the CrPC, and fresh filings go under the BNSS.
The maintenance scheme under Section 125 CrPC and Section 144 BNSS
The maintenance scheme lets a Magistrate order a person with sufficient means to pay a monthly allowance to a wife, child, or parent who cannot maintain themselves. Section 125 of the Code of Criminal Procedure, 1973 created this power, and Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 now carries it forward in nearly identical terms. The order is enforceable by the criminal court, which is what gives the remedy its speed and its bite.
Four sections work together as a single code. Section 125 (Section 144 BNSS) creates the right and the order. Section 126 (Section 145 BNSS) sets out the procedure and the court that has jurisdiction. Section 127 (Section 146 BNSS) allows the allowance to be altered later. Section 128 (Section 147 BNSS) provides for enforcement against a defaulter. Reading any one of them in isolation gives an incomplete picture of how a maintenance claim actually runs.
How does Section 125 CrPC map to Section 144 of the BNSS?
The mapping is one to one, and the substance is retained. The table below sets out the four corresponding provisions.
| CrPC, 1973 | BNSS, 2023 | Subject |
|---|---|---|
| Section 125 | Section 144 | Order for maintenance of wives, children and parents |
| Section 126 | Section 145 | Procedure for the proceeding |
| Section 127 | Section 146 | Alteration in the allowance |
| Section 128 | Section 147 | Enforcement of the order |
Which regime governs a given case depends on when the proceeding is initiated, not on when the marriage or the dispute arose. A maintenance petition filed on or after 1 July 2024 is drawn under Section 144 BNSS, while a petition already pending on that date continues under Section 125 CrPC. Because the text is the same, a court deciding a BNSS petition still relies on the entire body of Section 125 precedent.
Why was Section 125 enacted?
Section 125 was enacted to prevent vagrancy and destitution, not to settle matrimonial scores. The Supreme Court made this purpose explicit in Bhuwan Mohan Singh v. Meena, (2015) 6 SCC 353, describing the provision as one conceived to relieve the financial suffering of a woman who has left her matrimonial home so that she can sustain herself and her children. The remedy is deliberately summary, meaning it is decided quickly and does not wait for a full civil trial on the validity of the marriage or the grounds of separation.
The provision is also religion neutral. A Hindu, Muslim, Christian, Parsi, or Sikh dependant can invoke it, and personal law does not displace it. That secular reach is the reason Section 125 has generated some of the most contested constitutional litigation in India, most of it concerning divorced Muslim women, which the landmark cases section below traces in full.
CrPC, 1973
BNSS, 2023
Subject
Section 125
Section 144
Order for maintenance of wives, children and parents
Section 126
Section 145
Procedure and jurisdiction of the court
Section 127
Section 146
Alteration in the allowance
Section 128
Section 147
Enforcement of the order
Which regime applies: a petition filed on or after 1 July 2024 runs under Section 144 BNSS; a petition already pending on that date continues under Section 125 CrPC. The text carried over almost unchanged, so the Section 125 case law still applies.
Who can claim maintenance under Section 125 CrPC?
Four categories of dependants can claim maintenance under Section 125 CrPC: a wife, a minor child, an adult child who cannot maintain itself because of a disability, and a father or mother. The claimant must be unable to maintain themselves, and the person from whom maintenance is sought must have sufficient means and have neglected or refused to provide support.
Can a wife, including a divorced wife, claim maintenance?
A wife can claim maintenance, and the term is defined more widely than everyday usage suggests. The Explanation to Section 125(1) states that “wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. A divorced woman therefore does not lose the remedy simply because the marriage has ended; she loses it only if she remarries.
The wife’s own earning does not automatically bar the claim. In Chaturbhuj v. Sita Bai, (2008) 2 SCC 316, the Supreme Court held that “unable to maintain herself” does not require the wife to be destitute; if her income is insufficient to keep her at the standard she was used to in the matrimonial home, she can still claim. A working wife whose salary does not meet her reasonable needs remains eligible.
When can children claim maintenance?
A child can claim maintenance whether legitimate or illegitimate, and whether or not the child is married. For a minor, the claim runs against the father until the child attains majority. The law draws no distinction between children born within and outside marriage, which is one of the clearest instances of Section 125 acting as a welfare provision rather than a status-based one.
An adult child can also claim, but only in a defined situation. A child who has attained majority, other than a married daughter, may claim if a physical or mental abnormality or injury makes it unable to maintain itself. A healthy adult son or daughter cannot use Section 125 to demand support from a parent, because the provision is aimed at dependency arising from incapacity, not at ordinary adult need.
Can parents claim maintenance from a son or daughter?
Parents can claim maintenance from a child under Section 125(1)(d), and the liability falls on daughters as well as sons. Although the clause uses the words “his father or mother,” the Supreme Court held in Dr. Mrs. Vijaya Manohar Arbat v. Kashirao Rajaram Sawai, (1987) 2 SCC 278 that the masculine pronoun includes the feminine, so a married daughter with sufficient means can be ordered to maintain a parent who cannot maintain themselves. Marriage does not extinguish a daughter’s obligation, though the court will look at whether she has independent means separate from her husband’s income.
Both a father and a mother can claim, including, on the weight of authority, a mother seeking maintenance from a son who has the means to support her. The parent must genuinely be unable to maintain themselves; the provision is not a route to supplement an adequately provided parent’s income.
Does Section 125 cover a partner in a live-in relationship?
A woman in a long-term live-in relationship may be able to claim maintenance, though the position is qualified. In Chanmuniya v. Virendra Kumar Singh Kushwaha, (2011) 1 SCC 141, the Supreme Court favoured a broad reading of “wife,” so that a woman who has lived with a man as his wife for a reasonably long period is not denied maintenance merely because strict proof of a valid marriage is missing. The Court took the view that a man should not enjoy the benefits of a de facto marriage while escaping its obligations, and it referred the larger questions to a bigger bench.
The practical effect is that a presumption of marriage can arise from long cohabitation, and the burden then shifts to the man to rebut it. This reading sits alongside the separate, and often quicker, protection available to women in domestic relationships under the Protection of Women from Domestic Violence Act, 2005.
Wife
Includes a divorced wife who has not remarried. Earning some income does not bar the claim if it is insufficient.
Condition: unable to maintain herself
Children
Legitimate or illegitimate, married or not, until the child attains majority. Claim runs against the father.
Condition: minor and unable to maintain itself
Adult child with a disability
A child who has attained majority, other than a married daughter, where a physical or mental abnormality or injury prevents self-support.
Condition: incapacity, not ordinary adult need
Father or mother
A parent can claim from a son or a daughter. A married daughter with means is liable (Vijaya Manohar Arbat, 1987).
Condition: unable to maintain themselves
Common test: the person from whom maintenance is sought must have sufficient means and must have neglected or refused to provide support. A long-term live-in partner may also claim where a marriage is presumed from cohabitation (Chanmuniya, 2011).
What must an applicant prove to get maintenance?
An applicant must prove three things: that the respondent has sufficient means, that the respondent has neglected or refused to maintain the claimant, and that the claimant is unable to maintain themselves. These are the essential conditions in the opening words of Section 125(1), and each carries a specific legal meaning that courts have refined over decades.
What do “sufficient means” and “neglect or refusal” mean?
“Sufficient means” refers to the respondent’s capacity to earn, not merely to actual income on paper. A person who is able-bodied and capable of earning cannot escape liability by pleading unemployment or by understating income, because the law looks at earning capacity. Courts routinely reject the defence that a husband has no job when he is fit to work and has no genuine impediment to earning.
“Neglect or refusal” means a failure to provide support that the respondent was bound and able to provide. It can be express, as when a husband openly refuses, or it can be inferred from conduct, such as driving the dependant out or stopping remittances after separation. The claimant does not have to prove a formal demand and rejection in every case; sustained non-support in circumstances where support was due is enough.
Does “unable to maintain herself” mean the wife must be destitute?
“Unable to maintain herself” does not mean the wife must be reduced to begging or absolute destitution. The Supreme Court settled this in Chaturbhuj v. Sita Bai, holding that the phrase is measured against the standard of living the wife enjoyed in her husband’s home, and that efforts she makes to survive after being deserted do not count against her. A wife who scrapes together some income after being thrown out is not, for that reason, able to maintain herself.
The burden is shared. The wife must show, in the first instance, that the husband has sufficient means and that she is unable to maintain herself; the husband must then establish that she has adequate means of her own. This allocation prevents the provision from being defeated either by a wife’s minimal earnings or by a husband’s bare denial.
Grounds on which maintenance can be refused or cancelled
Maintenance can be refused or cancelled on the grounds set out in Section 125(4) and (5): where the wife is living in adultery, where she refuses without sufficient reason to live with her husband, or where the couple is living separately by mutual consent. These are the only statutory bars, and they are read strictly, because the object of the provision is protective.
When is a wife disqualified from maintenance?
A wife is disqualified in three situations under Section 125(4). She is not entitled if she is living in adultery, which requires a continuous or habitual course of conduct rather than a single lapse. She is not entitled if, without sufficient reason, she refuses to live with her husband. And she is not entitled if the two are living separately by mutual consent, because in that case neither party is neglecting the other.
Each of these is a question of fact that the husband must plead and prove. A stray allegation is not enough; the bar operates only where the disqualifying conduct is actually established before the court.
Is a husband’s remarriage a ground for the wife to live apart?
A husband’s remarriage or his keeping a mistress is a statutory just ground for the wife to refuse to live with him and still claim maintenance. The Explanation to the proviso to Section 125(3) says so expressly: if a husband has contracted marriage with another woman or keeps a mistress, that is a sufficient reason for his wife to decline to live with him. Her refusal in that situation does not trigger the Section 125(4) bar.
This is a significant protection. It means a wife is not forced to choose between living in a household with her husband’s second wife or mistress and forfeiting her right to support.
When is a maintenance order cancelled?
A maintenance order is cancelled when the ground for it disappears or a disqualification arises. Under Section 125(5), the Magistrate can cancel the order on proof that the wife is living in adultery, has refused without sufficient reason to live with her husband, or is living separately by mutual consent. Separately, an order in favour of a divorced wife is cancelled from the date she remarries, because the statutory definition of “wife” excludes a woman who has remarried.
Cancellation is prospective and requires proof; it is not automatic. Until the order is varied or cancelled by the court, it remains enforceable.
How is the quantum of maintenance decided?
The quantum of maintenance is decided case by case, with no fixed formula, by weighing the standard of living of the parties against the income and obligations of both sides. Since the Code of Criminal Procedure (Amendment) Act, 2001 deleted the old ceiling of five hundred rupees, there is no statutory cap on the monthly allowance, and State ceilings that had fixed a maximum became invalid.
What factors do courts weigh in fixing the amount?
Courts weigh the reasonable needs of the claimant, the standard of living enjoyed during the relationship, and the income, assets, and liabilities of both parties. The respondent’s other dependants and genuine financial obligations are taken into account, as is the claimant’s own income, if any. The aim is a figure that lets the dependant live with dignity in a manner reasonably comparable to the matrimonial standard, not a windfall and not a token sum.
Rajnesh v. Neha, (2021) 2 SCC 324 recorded that there is no straitjacket formula, while still insisting that the amount be neither so low that it drives the dependant to penury nor so high that it punishes the payer. The court must apply its mind to the material rather than pick a round number.
Is there a benchmark such as 25 percent of the husband’s income?
There is a working reference point, but it is not a rule. In Kalyan Dey Chowdhury v. Rita Dey Chowdhury, (2017), the Supreme Court treated roughly 25 percent of the husband’s net salary as a reasonable and just figure on the facts before it. That figure is a useful yardstick, not a statutory percentage, and courts depart from it where the facts require, for instance where the payer has remarried and has fresh dependants, or where the standard of living was far higher.
Because the calculation is fact-driven, honest disclosure of income matters more than any percentage. That is precisely the problem the next case set out to fix.
What did Rajnesh v. Neha change about proving income?
Rajnesh v. Neha made financial disclosure mandatory and standardised it. The Supreme Court directed that both parties file an Affidavit of Disclosure of Assets and Liabilities in every maintenance proceeding, in a uniform format, so that the court fixes the amount on verified figures rather than on assertion. The judgment, delivered on 4 November 2020, applies across maintenance claims under different statutes, and the Court later directed that it be circulated to all judicial officers because it was not being followed.
The same judgment addressed overlapping claims. A dependant often files for maintenance under Section 125 CrPC, under the Hindu Marriage Act, 1955, and under the Protection of Women from Domestic Violence Act, 2005 at the same time. Rajnesh v. Neha directed that later proceedings must disclose and account for what has already been awarded, so the payer is not made to pay twice for the same period, and it confirmed that maintenance is ordinarily payable from the date of the application. For a related family-law drafting walkthrough, see LawSikho’s guide on drafting a divorce petition by mutual consent.
- Standard of living: the manner in which the dependant lived during the relationship.
- Reasonable needs of the claimant, including food, residence, medical care and, for children, education.
- Income, assets and liabilities of both parties, and the respondent’s other genuine dependants.
- No statutory ceiling since the Code of Criminal Procedure (Amendment) Act, 2001 removed the old five hundred rupee cap.
- The 25 percent yardstick: roughly a quarter of the husband’s net salary was treated as reasonable in Kalyan Dey Chowdhury (2017), a guide and not a rule.
- Affidavit of Disclosure of assets and liabilities from both sides is mandatory (Rajnesh v. Neha, 2020).
- Payable from the date of the application, not the date of the order.
Interim maintenance: available while the case is pending and, since 2001, to be decided as far as possible within sixty days of notice.
How do you file and enforce a maintenance claim?
A maintenance claim is filed before a Judicial Magistrate under Section 126 CrPC (Section 145 BNSS), and once an order is passed it is enforced under Section 128 CrPC (Section 147 BNSS). The proceeding is summary and civil in nature in its object, but it carries criminal enforcement, which is what makes it faster and more effective than a civil suit for maintenance.
Which court has jurisdiction over a maintenance petition?
Jurisdiction is decided by where the parties are or have lived, and the claimant is given a choice of forum. Under Section 126 CrPC (Section 145 BNSS), the petition can be filed in the district where the respondent is, or where he or his wife resides, or where he last resided with his wife or, for an illegitimate child, with the mother of the child. Giving the wife the option of her own place of residence spares a deserted woman the cost and difficulty of litigating in a distant town. A step-by-step treatment of the pleadings is set out in this guide on drafting a maintenance petition under Section 125.
Evidence in these proceedings is normally taken in the presence of the respondent, but the Magistrate can proceed ex parte where the respondent is wilfully avoiding service or is deliberately staying away.
How is interim maintenance obtained during the case?
Interim maintenance is obtained by applying for it while the main petition is pending, and the law now requires such applications to be decided quickly. The 2001 amendment inserted an express power to order interim maintenance and the expenses of the proceeding, and it directs that such an application be disposed of, as far as possible, within sixty days from the date notice is served on the respondent. This spares the dependant from waiting out the entire case with no support.
Interim maintenance is not a token. Courts fix it on the same standard-of-living principles that govern final maintenance, subject to revision when the final order is passed.
How is a maintenance order enforced if the respondent does not pay?
A maintenance order is enforced through the criminal court’s power to recover the arrears and, if necessary, to imprison the defaulter. Under Section 128 CrPC (Section 147 BNSS), the Magistrate can issue a warrant to levy the unpaid amount in the manner of a fine, and can sentence the defaulter to imprisonment for a term that may extend to one month, or until payment if made sooner, for each month’s default. The threat of imprisonment is what converts a paper order into actual payment.
Enforcement is available for interim as well as final maintenance. A payer who ignores an interim order faces the same recovery and imprisonment machinery.
Can the amount be altered after the order is passed?
The amount can be altered when circumstances change, under Section 127 CrPC (Section 146 BNSS). Either party can apply, and the Magistrate can increase, reduce, or cancel the allowance on proof of a change in the circumstances of the person receiving or the person paying maintenance. A rise in the payer’s income, a fall in the dependant’s needs, or the payer’s fresh obligations are all grounds a court will consider. The order is therefore not frozen; it tracks the parties’ real situation over time.
Which landmark cases shaped maintenance law under Section 125 CrPC?
The landmark cases on maintenance under Section 125 CrPC run from the divorced-Muslim-woman line beginning with Shah Bano, through the guideline judgment in Rajnesh v. Neha, to the readings that widened “wife” and confirmed a daughter’s liability to parents. Together they explain who counts as a claimant and how much they receive, and iPleaders maintains a fuller digest of the leading rulings on Supreme Court cases on maintenance rights.
How did the courts settle a divorced Muslim woman’s right to maintenance?
The courts settled it across four decades, ending with a clear affirmation in 2024 that a divorced Muslim woman can claim under Section 125. The starting point was Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556, where a Constitution Bench held that a Muslim husband must maintain a divorced wife who cannot maintain herself, and that Section 125 operates independently of personal law. The political reaction produced the Muslim Women (Protection of Rights on Divorce) Act, 1986, which appeared to confine a husband’s liability to the iddat period.
The constitutional challenge to that Act was resolved in Danial Latifi v. Union of India, (2001) 7 SCC 740, where the Supreme Court upheld the Act but read it to require the husband to make a reasonable and fair provision for the wife’s future that extends beyond iddat. The line was completed in Mohd. Abdul Samad v. State of Telangana, 2024 INSC 506, where the Court held that a divorced Muslim woman may seek maintenance under Section 125 CrPC, that the 1986 Act is in addition to and not in derogation of that right, and that she may pursue either remedy or both. iPleaders carries a detailed analysis of the Shah Bano judgment and of Danial Latifi, and an overview of the wider question of maintenance under Muslim law. An earlier ruling in Bai Tahira v. Ali Hussain Fissalli Chothia, (1979) 2 SCC 70 had already held that payment of mahr does not oust a divorced woman’s claim under Section 125.
What guidelines did Rajnesh v. Neha lay down?
Rajnesh v. Neha laid down a framework to make maintenance orders consistent and enforceable. It required a uniform Affidavit of Disclosure of Assets and Liabilities from both sides, directed that overlapping claims under different statutes be disclosed and set off, confirmed that maintenance ordinarily runs from the date of the application, and provided for enforcement of unpaid maintenance. The judgment binds courts across the country and was reinforced by a later Supreme Court direction to circulate it to all judicial officers after non-compliance surfaced.
How did the courts read “wife,” parents, and live-in claims?
The courts read these categories generously, in line with the provision’s welfare purpose. Vijaya Manohar Arbat confirmed that a father or mother can claim from a married daughter, holding that the masculine pronoun in Section 125(1)(d) includes the feminine. Chaturbhuj v. Sita Bai held that a wife with some income of her own is still “unable to maintain herself” if that income falls short of the matrimonial standard. And Chanmuniya favoured extending maintenance to a woman in a long-term live-in relationship by presuming marriage from cohabitation. Read together, these rulings show a consistent judicial preference for keeping dependants within the protection of Section 125 rather than shutting them out on technical grounds.
Frequently asked questions
Is Section 125 CrPC still valid after the BNSS?
Section 125 CrPC continues to govern maintenance cases that were filed before 1 July 2024 or are still pending, while fresh cases are filed under Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023. The two provisions carry the same substance, so the settled case law under Section 125 applies to Section 144 as well.
Can a working wife claim maintenance under Section 125 CrPC?
A working wife can claim maintenance if her income is insufficient to maintain her at the standard she was used to in the matrimonial home. The Supreme Court held in Chaturbhuj v. Sita Bai that “unable to maintain herself” does not mean destitute, so earning some income does not by itself defeat the claim.
What is the maximum maintenance under Section 125 CrPC?
There is no maximum. The Code of Criminal Procedure (Amendment) Act, 2001 removed the earlier ceiling of five hundred rupees, so the amount is fixed by the standard of living and the income of both parties rather than by any statutory cap.
Can a divorced Muslim woman claim maintenance under Section 125 CrPC?
A divorced Muslim woman can claim maintenance under Section 125 CrPC. In Mohd. Abdul Samad v. State of Telangana (2024), the Supreme Court held that the Muslim Women (Protection of Rights on Divorce) Act, 1986 is in addition to Section 125, and that she may seek relief under either law or both.
From which date is maintenance payable?
Maintenance is ordinarily payable from the date of the application, not from the date of the order. The Supreme Court made this the norm in Rajnesh v. Neha, so that the dependant is not penalised for delay in the disposal of the case.
What happens if the husband does not pay the ordered maintenance?
If the husband does not pay, the Magistrate can issue a warrant to recover the arrears as a fine and can order imprisonment for up to one month, or until payment, for each month’s default under Section 128 CrPC (Section 147 BNSS). The same enforcement applies to unpaid interim maintenance.
References
Case law
- Chanmuniya v. Virendra Kumar Singh Kushwaha, (2011) 1 SCC 141
- Chaturbhuj v. Sita Bai, (2008) 2 SCC 316
- Bhuwan Mohan Singh v. Meena, (2015) 6 SCC 353
- Danial Latifi v. Union of India, (2001) 7 SCC 740
- Kalyan Dey Chowdhury v. Rita Dey Chowdhury, (2017)
- Mohd. Abdul Samad v. State of Telangana, 2024 INSC 506
- Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556; AIR 1985 SC 945
- Rajnesh v. Neha, (2021) 2 SCC 324
- Dr. Mrs. Vijaya Manohar Arbat v. Kashirao Rajaram Sawai, (1987) 2 SCC 278
- Bai Tahira v. Ali Hussain Fissalli Chothia, (1979) 2 SCC 70
Statutes
- Section 125 of the Code of Criminal Procedure, 1973. Sections cited: 125, 126, 127, 128
- Bharatiya Nagarik Suraksha Sanhita, 2023. Sections cited: 144, 145, 146, 147
- Code of Criminal Procedure (Amendment) Act, 2001: removal of the maintenance ceiling, interim maintenance and sixty-day disposal
Legal disclaimer
This article is for informational and educational purposes only and does not constitute legal advice. Maintenance outcomes turn on the specific facts of each case and on the court before which the matter is filed. Readers should consult a qualified advocate before acting on any maintenance claim or defence.
