Maintenance Under Section 125 CrPC: A Practical Guide

Who can claim and against whom

The section protects four classes of claimant. A wife who is unable to maintain herself can claim from her husband. A minor child, legitimate or illegitimate, can claim from either parent. An adult child can claim from a parent where the child is unable to maintain himself because of physical or mental abnormality or injury. A father or mother unable to maintain themselves can claim from a son or daughter with sufficient means.

The respondent must have “sufficient means” and must have neglected or refused to maintain the claimant. Both elements are judged practically. A husband who earns well but says he will not pay has means and has refused; one who is unemployed but owns property, receives rent or runs a business also has means. Income is not limited to salary.

Two boundaries matter. The claim is not confined to separated wives, though the court will ask why a wife living at home is not maintained there. And the section creates a right to a monthly allowance, not a share in property, which needs a separate civil suit or divorce petition.

A wife need not prove the customs of her religion, only her relationship, her need and his means.

Section 125 CrPC is now Section 144 BNSS

The Bharatiya Nagarik Suraksha Sanhita, 2023 replaced the Code of Criminal Procedure with effect from 1 July 2024. Section 125 corresponds to Section 144 BNSS, and Section 126 corresponds to Section 145. The language, structure and remedies are substantially the same: the same classes of claimant, the same summary procedure, the same power to order a monthly allowance and the same enforcement machinery.

Cases filed before 1 July 2024 continue under the old Code, and later cases are described as Section 144 BNSS proceedings, though Hyderabad courts still use both expressions. Nothing turns on the label; what matters is the correct court, documents and no delay.

Older precedents still bind. Judgments on “unable to maintain herself”, “sufficient means” and the one-year limit on arrears remain good law because the provisions are in pari materia, so a wife can rely on Chaturbhuj v. Sita Bai (2008) 2 SCC 316 and Rajnesh v. Neha (2021) 7 SCC 408 either way.

Conditions, defences and the ceiling that no longer exists

Sub-section (4) lists the defences. A wife is not entitled to maintenance if she is living in adultery, if without sufficient reason she refuses to live with him, or if they are living separately by mutual consent. Sub-section (5) ends the entitlement on remarriage or on receipt of an allowance under another order. Each defence must be proved by the husband; alleging that she left the house is not enough.

The words “without sufficient reason” carry most of the weight. A wife who leaves because of cruelty, violence, an intolerable joint family or her husband’s refusal to maintain her has sufficient reason; a wife who leaves for a job in another city without any matrimonial dispute may not. The enquiry is fact-specific.

The old ceiling of five hundred rupees was removed in 2001. There is now no upper limit, and maintenance must be a reasonable figure allowing the claimant to live with dignity, so a magistrate can award a substantial monthly sum where the husband’s income supports it.

In Chaturbhuj v. Sita Bai the Supreme Court held that “unable to maintain herself” does not require proof of destitution; it means she is not in a position to support herself. A small income that falls short of her needs does not defeat the claim.

Filing in Hyderabad, step by step

An application may be filed in the district where the husband resides, where he is employed or has property, where the wife resides, or where the parties last resided together. For a wife who has returned to her parents in Hyderabad, that usually means a court in Hyderabad even if the husband works elsewhere. In Hyderabad, these applications are heard by the jurisdictional magistrates and, where the Family Court has jurisdiction over the parties, at the Family Court complex.

Document	Why it is needed
Marriage proof: certificate, nikahnama, photographs	Establishes the relationship, which is the first ingredient
Identity and address proof of both parties	Fixes jurisdiction and enables service of notice
Children’s birth certificates and school records	Supports the child’s claim and the education expenses
Her bank statements, salary slips or unemployment proof	Shows she cannot maintain herself
His salary slips, Form 16, ITR, bank statements	Shows his means and fixes quantum
Rent agreement, medical bills, loan statements	Converts her needs into a monthly figure

The application is supported by an affidavit stating the date of marriage, the date of separation, the reason for living separately, the children and their custody, her own income and assets, his known income and assets, and a month-wise computation of her needs. File a separate application for interim maintenance at the same time so that support begins while the case is pending.

The court then issues notice. The husband files a reply and, since Rajnesh, an affidavit of assets and income in the prescribed format. The magistrate hears both sides and fixes maintenance on affidavits and documents; if the husband does not appear despite service, the case proceeds ex parte.

How the magistrate fixes the amount

There is no formula in the statute. In Rajnesh v. Neha the Supreme Court required both parties to file affidavits of disclosure and directed courts to consider the standard of living during the marriage, age, health, earning capacity, liabilities, dependants and the children’s needs, with interim maintenance decided within sixty days and payable from the date of the application.

In practice, Hyderabad magistrates commonly work within roughly 15 to 30 per cent of the husband’s net monthly income where the wife has no earnings, adjusted for his loans, rent and dependants. That band is a judicial convention, not a rule. Where she earns, the figure is reduced rather than eliminated; where income is concealed, the court assesses it from lifestyle and bank records.

Salary slips alone are unreliable. Magistrates look at bank statements for salary credits and unexplained deposits, Form 16, income tax returns, business accounts, GST returns, rental receipts, credit card statements, vehicle registrations and property records. A husband claiming a modest salary while paying large school fees and servicing a housing loan is not believed, and the court may draw an adverse inference from non-disclosure.

How it interacts with civil maintenance

Section 125 is not the only remedy, and filing it does not bar the others. A wife can simultaneously claim interim maintenance under Section 24 of the Hindu Marriage Act, permanent alimony under Section 25, maintenance under Section 18 HAMA and monetary relief under Section 20 of the Domestic Violence Act. The maintenance guide compares the routes.

The rule against double recovery ties them together. A court fixing maintenance under one provision accounts for amounts awarded under another, and both applications must disclose the pendency of the other. Concealment damages credibility and can lead to dismissal or costs.

The usual strategy is sequential. File under Section 125 or Section 144 BNSS first, because the magistrate’s enquiry is quicker and cheaper, then claim interim and permanent alimony in the divorce petition where property and pension can be examined. Where there is violence or a risk of eviction, add a Domestic Violence Act application.

Understand the limit clearly. A Section 125 order is a monthly allowance only: it does not divide property, create a charge on his assets unless the court directs one, or decide custody. A wife who wants a share in the matrimonial home must plead it in the divorce or a civil suit.

Enforcement and arrears

Sub-section (3) provides the machinery. If the husband fails to comply, the magistrate issues a warrant for the amount due and, if he still does not pay, can order attachment and sale of his movable property and sentence him to imprisonment for up to one month for each month of default. The proviso limits recovery to arrears that fell due within one year before the enforcement application.

The one-year limit is the most important practical point here. A wife who lets defaults accumulate for three years may recover only the last twelve. File enforcement as soon as a payment is missed and keep a ledger of amounts due, amounts paid and the mode of payment.

Where he is salaried, a direction to his employer to deduct and remit the amount is more effective than periodic warrants. Where he owns property, attachment and sale is slow but decisive. Persistent disobedience can also be contempt in a higher court.

Frequently asked questions

Is Section 125 CrPC still valid after the BNSS?

It survives as Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023, in force from 1 July 2024. Earlier cases continue under the old Code, and the case law on Section 125 still applies because the provisions are substantially the same.

Can a husband claim maintenance under this section?

Not as a husband. The section allows a wife to claim from her husband, and a father or mother to claim from a son or daughter. A husband’s remedy, if any, lies in the matrimonial statutes or in a civil claim, not in Section 125.

Does it apply to Muslim wives?

Yes. Section 125 is secular and applies to all religions. After divorce a Muslim wife may also claim under Section 3 of the 1986 Act, and the Supreme Court has held that she is not confined to that Act.

How much maintenance will the magistrate award?

There is no fixed formula and no ceiling. Courts commonly work within roughly 15 to 30 per cent of net income where the wife has no earnings, adjusted for dependants, loans and her own means. Concealed income is assessed from lifestyle and bank records.

Can I file in Hyderabad if my husband works in another city?

Yes. Jurisdiction lies where the husband resides or has property, where the wife resides, or where the parties last lived together, so a wife staying with her parents in Hyderabad can ordinarily file there.

Does filing for divorce end my maintenance claim?

No. You can pursue the Section 125 or Section 144 application alongside the divorce, and claim interim and permanent alimony in the divorce petition. The court will adjust amounts so that you do not recover twice for the same period.

What happens if he does not pay after the order?

Apply for enforcement under Section 144 BNSS within a year of the default. The magistrate can issue a warrant, attach and sell his property, and sentence him to imprisonment for up to one month for each month’s default.

Related reading

• Section 125 maintenance in Hyderabad: filing and proof
• Wife maintenance rights in India
• Maintenance for children after divorce
• Domestic violence protection orders and monetary relief