knowledge about

CHAPTER IX

ORDER FOR MAINTENANCE OF WIVES, CHILDREN AND PARENTS

125.

Order for maintenance of wives, children and parents.

125.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

-----------------------------------------------------------------------

1 Subs. by Act 45 of 1978, s. 12, for "Chief Judicial Magistrate"

(w.e.f, 18-12-1978).

------------------------------------------------------------------------

(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 not exceeding five hundred 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 :

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.

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) Such allowance shall be payable from the date of the order,

or, if so ordered, from the date of the application for maintenance.

(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 allowances 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 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.

126.

Procedure.

126. 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 proceed 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 at 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.

127.

Alteration in allowance.

127.Alteration in allowance. (1) On proof of a change in the

circumstances of any person, receiving, under section 125 a monthly allowance, or ordered under the same section to pay a monthly allowance to his wife, child, father or mother, as case may be, the Magistrate may make such alteration in the allowance he thinks fit :

Provided that if he increases the allowance, the monthly rate of

five hundred rupees in the whole shall not be exceeded.

(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 by the woman;

(c) the woman has obtained a divorce from her husband and

that she had voluntarily surrendered her rights to

maintenance 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 has been ordered to be paid under section 125, the Civil Court shall take into account the sum which has been paid to, or recovered by, such person as monthly allowance in pursuance of the said order.

128.

Enforcement of order of maintenance.

128.Enforcement of order of maintenance. A copy of the order of

maintenance 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 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 due.