How to defend/fight the application of the wife filed under

section 125 of the criminal procedure code?

Section 125(1) of the criminal procedure code is codified for the

maintenance to the wife, children’s and parents who are unable to

maintain themselves. The proviso has been made in social interest.

 Procedure under Section 125 of the criminal procedure code is

quasi civil quasi criminal in nature and is a summary

procedure.

When you will receive any notice/summons from the court:-

1. Never ignore/refuse to receive notice/summons weather it is

by post or by police authority or any other way because if it

may returned with remark that, the respondent refused to

receive the notice, the opposite party will get chance to

proceed “X” party against you.

2. Read the notice and see if the copy of the application is

attached with it or not if any read it carefully.

3. If you are not capable to defend the matter in person, think

about to appoint the advocate always choose honest and

expert advocate.

4. Never give all the papers to your advocate always keep one

Photo copy of every paper in your file. At first don’t give

original papers, supply only photo copies. But for producing

the documents in court give original copies.

 5. Read the application again and again and now read the

application of your wife keeping above mentioned points in

your mind:-

I. If your wife is in service or has any business or ancestral

properties or any other income sources or is well educated try

to find out that, weather wife has disclosed these material

facts in her application or has not disclosed if she has not

disclosed. This is your 1st and best defense ground that, wife

is not with clean hands.

II. If she has admitted her job, income etc in her application. You

have good defense that, she is able to maintain her and

therefore is not entitled for the maintenance. This is your 2nd

ground for the defense.

III. Find out that, weather wife has filed the application within

the jurisdiction of the court, where she lives or where she

lived lastly with you or where you live or where your marriage

was solemnized if not you have defensed that, the court has

no jurisdiction to entertain the application. This is your 3rd

ground. ( reference:- section 126 of the criminal procedure

code)

IV. Find out that, weather the wife has made false, misleading

statements in the application if any note down the material

statements and keep always in your mind that, you have to

prove that, these statements are false and misleading. Try to

collect evidence for the same and keep these statements in

your mind at the time of wife’s cross-examination before the

 court. Give suggestions to your advocate bring out the truth

through wife’s own mouth at the time of cross examination. If

you succeeded to bring out contradictory statements, this

may impeach the credit of the wife and she also may be libel

for the procuration for the false evidence. This is your 4th

defense ground

V. Find out that, if wife has filed any other proceedings against

you obtain the copies of the same and after comparative study

find out that, if she has made any contradictory statements in

another proceedings or has admitted some facts. If she has

admitted material facts you can use these statements as

admission in view of section 17and section 58 r/w sections 31

of the Indian evidence act. And if any contradictory

statements has made use that statements to impeach the

credit of the wife in view of section 155(3) and section 145of

the Indian evidence act. This is your 5th ground for the

defense.

VI. Find out that, if she has stated in her application that, she is

not ready to live with you and she is not interested to live with

you then you have best ground for the defense that,

unreasonably your wife has deserted you and therefore she is

not entitled for the maintenance. This is your 6th ground for

the defense.

VII. Find out that, if wife has made only vague statements and

vague allegation against you and against your family without

any details, events, dates or other facts you have ground for
 the defense of “Insufficient and vague pleadings” and

“allegations are general in nature”. This is your 7th ground for

the defense.

VIII. If she has earlier filed maintenance proceedings or has

obtained maintenance orders, you have defensed that,

multiple maintenance proceedings are not allowed therefore

the proceeding under section125 may be stayed or quashed.

This is your 8th ground for the defense.

6. File written statement/say with verification and with support

of the affidavit. Be careful at the time of filing the written

statement, see whether you have drafted the written statement

keeping above mentioned points in the mind:-

A. Which material facts have suppressed and has not

disclosed by wife in her application.

B. She is able to maintain herself.

C. Her education, profession, service, business, income, her

ancestral properties and weather she is taking any

income/ share from ancestral properties etc.

D. She has unreasonably deserted you and you are ready to

cohabit with her.

E. If she is leaving in adultery. (proof is very necessary

otherwise never take this ground it will permanently

close the doors of the justice.)

F. Reason why she has filed the false application against

you.
 G. All the dependents on you and all the loans, deductions,

compulsory deductions, illness of you and your family

members and spending’s on it.

H. If maintenance may be granted you cannot maintain

yourself.

I. State that, if maintenance may be granted your

matrimonial life will break and your wife will never give

response to your request of the cohabitation.

J. If any interim of final maintenance has been granted to

the wife in another proceeding.

K. If she has filed multiple maintenance proceedings.

Multiple maintenance proceedings are not allowed by

law.

7. Points for the consideration at the time of cross:-

i. Enable the wife to admit her income, business, service

educational coalification her ancestral properties and

incomes she getting from her parents.

ii. Enable the wife to admit that, she is not ready to cohabit

with you.

iii. Enable the wife to admit that, she has left your house.

iv. Enable the wife to admit that, to make contradictory

statements to her statements about cruelty, ill-treatment,

dowry harassments etc.

v. Enable the wife to admit that, other family members of

your family are depend on you and some members are

old and are sick.

8. Documents and oral evidence to support your case on above

points:-

A. Salary slips, Fixed Deposits of the wife, her shares in

ancestral property, business, Rt-returns educational and

professional coalification. Documentary and oral evidence

can be leaded to prove the same. Documents can be

called by court orders.

B. Your matrimonial life was happy and no ill-treatment or

harassment has been caused.

C. She not wishes to live with you; unreasonably she has

left your house.

D. She is leaving Adultery (if really is in adultery). Can be

proved by oral evidence.

9. Alternative remedies:-

I. Prefer stay application to stay the proceeding under section

125, if other proceedings for the maintenance already has

preferred by wife.

Case laws to support your application:-

a) Mumbai High Court Ravindra Haribhau Karmarkar vs Mrs.

Shaila Ravindra Karmarkar And Another on 17/7/1991.

b) IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Order: 30th August, 2010 Crl.M.C.No. 130/2010 & Crl.M.A.No.
504/2010 % 30.8.2010 Rachna Kathuria … Petitioner Versus Ramesh
Kathuria … Respondent
c) Bombay High Court Sangeeta Piyush Raj vs Piyush Chaturbhuj
Raj on 13 January, 1998 Equivalent citations: 1998 (3) BomCR
207, II (1998) DMC 443 Bench: M S C.J., R Kochar.

II. Obtain decree from the competent civil court for the

restitution of the conjugal rights or decree of divorce on

 ground of desertion or on ground of adultery. Her

application will be rejected on this ground or if already

maintenance has granted it will be cancelled under section

127 of the criminal procedure code.

10. Effective argument; points for the arguments:-

I. She has unreasonably left the house and has deserted

the husband, therefore is not entitled for the

maintenance:-

Case laws on this point for support your argument:-

a) Rohtash Sigh vs Smt. Ramendri AIR 2000 SC 952.

b) SanjaySudhakarBhosale Versus Khristina w/o Sanjay

Bhosale dated 8.4.2008.

c) Uttaranchal High Court Smt. Archana Gupta & Another

vs Sri Rajeev Gupta & Another on 18 November, 2009.

d) Rajasthan High Court. Bheekha Ram vs Goma Devi And

Ors. on 22 January, 1999. Equivalent citations: 1999

CriLJ 1789. Author: G Gupta. Bench: G Gupta....

II. She has her business, service and other income sources,

she is well educated and She is capable to maintain

herself:-

Case laws on this point for support your argument:-

a) Karnataka High Court Equivalent citations: AIR

2005 Kant 417, ILR 2005 KAR 4981.

b) IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Order: September 18,2008 CM(M) 949/2008

 Manish Kumar …Petitioner Versus Mrs.

Pratibha…Respondent.

c) Delhi High Court Kaveri vs Neel Sagar & Anr. on 25

October, 2010.CM(M) 1153/2008 KAVITA PRASAD

….. Petitioner versus RAM ASHRAY PRASAD …..

III. She has suppressed material facts from the court and is

playing fraud on court as well is playing fraud on

opponent and she is not with clean hands, therefore she

is not entitled for relief of maintenance or any other

reliefs. Person whose case is based on falsehood can be

throughout at any stage of the proceeding and has not

any right to seek any relief from the court.

Case laws on this point for support your argument:-

a) Supreme Court of India S.P Chengalvaraya Naidu

vs Jagannath on 27 October, 1993 Equivalent

citations: 1994 AIR 853, 1994 SCC (1) 1.

b) Kolkata High Court (Appellete Side) Md.

Ashiruddin & Anr vs State Of West Begal & Anr on

25 March, 2008.

c) Supreme Court of India G.M. Haryana Roadways vs

Jai Bhagwan & Anr on 5 March, 2008.

IV. You are ready to maintain to her if she lived with

you:-

Legal provisions to support your argument:-

Section 125(4) and section 125(5) is codified to protect

the right of the husband to cohabit with his wife. At any

 time you can ask your wife to cohabit with you. If

unreasonably she refused, she is not entitled to

maintenance. Even after the maintenance order you can

give offer to your wife to live with you and if your wife

unreasonably refused to co habit with you her

maintenance order may be cancelled.

Section 125(5) is codified as above:- “On proof that any

wife in whose favor 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”.

Section 125(4) is codified as above:-

“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.”

11. Other options:-

 If your wife obtained order of interim maintenance or final

maintenance by playing fraud on court you may prefer

application, suit, revision, writ etc. to cancel the order or

declare that, the order is nullity.

Case laws for support:-

a) Supreme Court of India A.V. Papayya Sastry & Ors vs

Government Of A.P. & Ors on 7 March, 2007.

b) Delhi High Court Manmohan Singh Dhaliwal vs Gurbax

Singh Arora And Ors. on 2 November, 2001 Equivalent

citations: 94 (2001) DLT 820, 2002 (61) DRJ 801.

12. Insolvent person may file proceeding for the declaration

that, “He is insolvent person”. After declaration JMFC or any

other court has no jurisdiction to order to pay maintenance to

the wife or recover the maintenance already granted.

This article is not against the any woman or against the laws

framed for the woman. Every husband is duty bound to maintain

his honest wife who is unable to maintain herself. Breaking

matrimonial life or unreasonably deserting the wife is worst the

thing and author of this article hates the same.

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