Section 126 CrPC: Procedure

Chapter IX

Costs, evidence, ex parte order, jurisdiction, Jurisdictional Grounds, maintenance, Maintenance Proceedings, procedure, Summons-cases

New Law Update (2024)

Section 145 BNSS

TRIAL COURT

Magistrate's Court

Punishment

Procedural – Warrant / Summons Process

Cognizable?

Bailable?

Compoundable?

Bare Act Text

(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.

Important Sub-Sections Explained

Section 126(1) CrPC

This sub-section defines where an application for maintenance can be filed. It allows a wife or the mother of an illegitimate child to file a case in any district where the husband/father is present, where they or the husband reside, or where they last resided together, making it easier for applicants to access justice.

Section 126(2) CrPC

This sub-section outlines the procedure for taking evidence in maintenance proceedings, requiring it to be in the presence of the respondent or their lawyer and recorded like a summons case. Critically, it also allows the Magistrate to proceed with the case ex-parte if the respondent wilfully avoids service or fails to attend court, with provisions to set aside such orders.

Landmark Judgements

Rajnesh v. Neha (2021):

This Supreme Court judgment laid down comprehensive guidelines for the speedy and effective disposal of maintenance applications across various statutes. It mandated the filing of an affidavit of assets and liabilities by both parties and clarified the effective date of maintenance awards.

Sujata Singh v. Prashant Kumar Singh (2017):

The Supreme Court clarified the jurisdictional aspect under Section 126 CrPC, reiterating that a wife is entitled to file a maintenance application under Section 125 CrPC at the place where she resides, emphasizing the legislative intent to provide easy access to justice for women.

Shabana Bano v. Imran Khan (2010):

The Supreme Court held that a divorced Muslim woman, not remarried, is entitled to maintenance under Section 125 CrPC from her former husband even after the iddat period, unless she has received a reasonable and fair provision and maintenance by way of mahr.

Draft Format / Application

IN THE COURT OF THE JUDICIAL MAGISTRATE FIRST CLASS / FAMILY COURT, [District Name], [State Name]
M.C. No. ______ of 20______
IN THE MATTER OF:
[Petitioner’s Name]
D/o / W/o [Father’s/Husband’s Name]
R/o [Petitioner’s Address]
…Petitioner
VERSUS
[Respondent’s Name]
S/o [Father’s Name]
R/o [Respondent’s Address]
…Respondent

APPLICATION UNDER SECTION 125 OF THE CODE OF CRIMINAL PROCEDURE, 1973 READ WITH SECTION 126 THEREOF

MOST RESPECTFULLY SHOWETH:

1. That the Petitioner is the lawful wife/minor child/parent of the Respondent and is unable to maintain herself/himself.
2. That the Respondent has sufficient means but has neglected/refused to maintain the Petitioner.
3. That the marriage between the Petitioner and Respondent was solemnized on [Date] at [Place] according to [Customs/Rites]. (If applicable for wife).
4. That the Petitioner is currently residing at [Petitioner’s Address], which falls within the territorial jurisdiction of this Hon’ble Court under Section 126 CrPC.
5. That the Respondent is working as a [Occupation] and earns approximately Rs. [Amount] per month/annum.
6. That the Petitioner has no independent source of income and is dependent on others for her/his daily needs.
7. That the Petitioner requires a sum of Rs. [Amount] per month for her/his maintenance.

PRAYER:
It is, therefore, most respectfully prayed that this Hon’ble Court may be pleased to:
(a) Direct the Respondent to pay a monthly maintenance allowance of Rs. [Amount] to the Petitioner from the date of filing of this application.
(b) Pass any other order or direction as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.

AND FOR THIS ACT OF KINDNESS, THE PETITIONER SHALL EVER PRAY.

Petitioner
[Date]
[Place]

VERIFICATION
I, [Petitioner’s Name], the above-named Petitioner, do hereby verify that the contents of the above application from paras 1 to 7 are true and correct to my knowledge and belief, and nothing material has been concealed therefrom. Verified at [Place] on this [Date] day of [Month], [Year].

Petitioner

Chapter IX