Constitutional Validity of Section 125 of Criminal Procedure Code


Today in Indian situation there seems to be need to alter the clauses to make law gender-equal. Maintenance of wife, children and parents under section 125 of crpc. Courts in India works as a supporter of justice and a light to bring hope for all. That since the Constitution is a living report, as hung on various events, the Constitutional Morality must be developed with advancement of cultural development and change in cultural profound quality. Subsequently, while giving support was exclusively the husband’s duty at one point of time, the principal mainstay of the fundamental structure of our constitution in the contemporary society is equity and therefore the jobs of the life partners in the marriage must be re-evaluated. In light of the previously mentioned contentions, the court to proclaim Section 125 CrPC illegal or read it down in a way that it is sexually unbiased.


The status of women in India has been liable to numerous changes over the previous centuries, from equivalent status with men in past through the depressed spots of the medieval period. As the Medieval time frame in history approached, the Indian women began declining in status for an assortment of reasons. Significant sacred texts began advancing that ladies were mediocre compared to men, and couldn’t be trusted to have their own opportunity.

Maintenance under Section 125 of Criminal Procedure Code 1973 states the clauses for protection of women. In this era where women are being able to have opportunity to be educated and exploring new area. And somewhere in the world women are given better priority and opportunity of exploring and expanding. They are out to recluse from domestic violence and the old image of women of being soft, delicate, subtle has been faded in the near past. Women are no longer the target of physical or mental intolerance. They are being seen as independent.

Strangely, calling for maintenance for herself and her children seem to disinterest as the strata of society has changed. The concept of maintenance was enumerated in Section 125 of Criminal procedure code 1973 and personal laws. There was an essence of this in Constitution of India under Article 15(3) the state envisages that it can make special provisions related to women and children.

Brief of Section 125 of Criminal Procedure Code

Maintenance is termed as taking care or preserving someone. This care or preserving is for food, clothing, shelter. Notwithstanding, in ongoing time it has been held that some other prerequisites, i.e., important for an individual to stay fit sound and alive is likewise to be included inside fringe of the term ‘upkeep’. It is in light of the reason that the spouse is qualified for live as per the standard and status of her significant other.

However, in Indian law, Men are enlightened to prevent and preserve their women or children and maintain them for food, clothing and shelter. This reform was established to prevent women or children from immorality and destitution. It was an act of preserving the economic condition of women and children.

The description of section 125

Order for maintenance of wives, children and parents.

a) If any person having sufficient means neglects or refuses to maintain

b) His wife, unable to maintain herself, or

c) His legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

d) 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

e) His father or mother, unable to maintain himself or herself.[i]

Person enlightened to get maintenance

According to section 125 of crpc there are specific people who are the receiver or the gainer of maintenance. In a relationship where one person is under the obligation to maintain the other.

The people who are under circumstances to be maintained under the clause are dependent parents, children and wedded wife including these but not guarded from illegitimate children, divorced wife, etc.

But there is situation when a wife is excluded from getting the maintenance from her husband. As the clause provides exclusive rights to the wife to get maintenance at any cost but there are circumstances when is wife is limited from getting maintenance these are:

  • Adultery
  • When no sufficient reason for not living with the husband.
  • Mutual consent

If a person refuses or neglects to maintain than a magistrate can command the same to carry out within a prescribed time.

History and Evolution of Section 125 of Criminal Procedure Code

Generally, divorce settlement was exclusively the privilege of the spouse to be bolstered by the spouse however under current law alimony might be installment by either the wife or the husband on the side of the other. The honour of spousal maintenance is by and large dependent on all or some of the accompanying rules: the beneficiary’s budgetary needs; the payer’s capacity to pay; the age and soundness of the parties; the way of life the beneficiary progressed toward becoming accustomed during the marriage; the length of the marriage; each gathering’s capacity to procure and act naturally supporting; and the beneficiary’s nonmonetary commitments to the marriage.

Case filed in Bombay High Court stated that a financially not stable women will only get the maintenance. If a woman has no sufficient source of income can demand maintenance. The court gave the judgment saying that wife should be interpreted narrow manner as the focus of the clause was to uplift the destitute or distress wife. A legally married wife will only be entitled to maintenance. There was a judicial precedent for further more cases and were therefore challenged in the court of law.

Recently a case was filed for demanding gender equality on September 07, 2019. The petitioner was an employee of jet airways and he was ordered by the Dehradun high court to maintain his wife. Which the petitioner challenged in apex court demanding a thought of gender equality. As the counsel of petitioner stated that if the petitioner himself is not in a position to maintain himself because of the shutting down of the company how will he have ability to maintain his wife who is in a better position than him and demanded justice over the gender. The petitioner demanded that the section should be declared unconstitutional as it violates the Article 14 of Indian constitution. And court to pass appropriate orders to neutralize the status of men and women. As the clause defines that a male can maintain if he is healthy and able and is under obligation to maintain his wife. It’s is being stated that a wife is entitled to maintenance unless the husband is proved to be extremely disable to earn any income.


Remedy stated under this section is an inexpensive and speedy in nature as compared to personal laws. But the clause stands for gender neutrality as the status of women has be now treated as same if they are somewhere equal or above men as the maintenance is not just a obligation on the men towards his wife, children or patents but if there is situation of wife being sufficient in source of income than men so the women is enlightened to maintain the men.

[i]Wandaia Shnkhon, Blue Ocean Research Journal, Journal of business management &Social Science Research (JBM&SSR), Volume 6, No. 7, July 2007.

This article is authored by Pragya Sonkhiya, student of B.B.A. LL.B at New Law College, BVP Pune

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