CRPC PROVISIONS AND RELEVANT CASE LAWS

FOR THE SENIOR CITIZENS AND ELDERLY

Section 125 of the CrPc is a provision in Indian Law whereby a

Magistrate can order children to make a payment of monthly allowance
as maintenance to their Parents (father or mother).

The section states that “If any person having sufficient means neglects or
refuses to maintain 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”.

Who is liable to pay maintenance

Section 125 of Cr.P.C states that both mother and father, whether natural
or adoptive, can claim maintenance from any of their children. Under
Section 125 even daughters are liable to pay maintenance to her mother
and father. In case of step mother, she can claim maintenance only if she
is a widow and doesn’t have any natural-born sons or daughters. Married
daughters are also liable to pay maintenance to parents if they are solely
dependant on her.

1.Father or mother must be unable to maintain himself or herself :

Bombay High Court in Pandurang Bhaurao Dabhade vs Baburao

Baburao Dabhade and another (1980 CriLJ 256 = 1980 (82) BOMLR
116) said :

Giving a plain meaning to the language used in section 125(1) and to the
provisions relating to the father and mother in Clause (d) thereof, the
only two circumstances which have to be gone into for the purpose of
deciding a claim under section 125(1) appear to be that the father or
mother must be unable to maintain himself or herself and secondly, the
person against whom an order under section 125(1) is sought must have
sufficient means to maintain the father or mother and yet neglects or
refuses to maintain the father or mother.

The provisions in section 125(1) is a very special provision enabling the

Magistrate to make an order against a son or daughter for payment of a
monthly allowance for the maintenance of the father or mother who is
unable to maintain himself or herself. The provision in section 125 is one
of general application and is not related to the personal law of the
parties. Implicit in the provision, therefore, is the statutory recognition of
the obligation that a son who has sufficient means is bound to maintain a
father or mother who is unable to maintain himself or herself. The
provision is really in the nature of an ameliorative provision made for the
first time recognising the right of infirm parents who are unable to
maintain themselves to be maintained by their son or daughter who is
possessed of sufficient means as also providing a remedy to enforce that
right.

The provision in section 125 is one of general application. The provision

provides the statutory recognition of the obligation that a son who has
sufficient means is bound to maintain a father or mother who is unable to
maintain himself or herself. The above mentioned provision is
incorporated under Code of Criminal Procedure for the first time
recognising the right of infirm parents who are unable to maintain
themselves to be maintained by their son or daughter who is possessed of
sufficient means as also providing a remedy to enforce that right.

2. Fulfilment of parental obligation is not a pre-condition

to claim maintenance:

Bombay High Court in Pandurang Bhaurao Dabhade vs Baburao

Baburao Dabhade and another (1980 CriLJ 256 = 1980 (82) BOMLR
116) concluded :
Having considered the provisions of section 125(1), it is clear to us that
they do not contemplate that the obligation to maintain an aged, infirm
parent who is unable to maintain himself or herself can be enforced only
if it is preceded by the fulfilment of the parental obligation to maintain
and bring up the children during the childhood of the children.

The argument, which is advanced before us, stems more from amoral
indignation at being required to maintain a father who has not cared for
the children during the time when he should have done so. However,
effect must be given to the intention of the legislature, which must be
found from the words of section 125(1) alone, and the petitioner cannot
ask to be relieved form the said statutory obligation on any moral
considerations.

It appears to us, therefore, clear that since the father in the instant case
has been found unable to maintain himself and the petitioner who is a son
is fairly well placed and is refusing to maintain him, the father was
entitled to an order for maintenance under section 125(1) of the Code of
Criminal Procedure.

3. Daughter is liable to pay maintenance to parents:

There can be no doubt that it is the moral obligation of both son or a

daughter to maintain his or her parents. The parents will be entitled to
claim maintenance against their daughter provided the above mentioned
conditions are fulfilled. However, before passing an order in favour of
parents against their married daughter, the court must be satisfied that the
daughter has sufficient means of her own which should be independent
from that of her husbands.

Supreme Court in Dr. Mrs. Vijaya Manohar Arbat vs. Kashirao

Rajaram Sawai & another (AIR 1987 SC 1100) said :

“An application under section 125(1)(d) of the

Code of Criminal Procedure, 1973, by a father claiming maintenance
from his married daughter is perfectly maintainable.
There can be no doubt that it is the moral obligation of a son or a
daughter to maintain his or her parents. It is not desirable that even
though a son or a daughter has sufficient means, his
or her parents would starve. Apart from any law, the Indian Society
casts a duty on the children of a person to maintain their parents if
they are not in a position to maintain themselves. It is also their duty to
look after their parents when they become old and infirm.

The parents will be entitled to claim maintenance against their daughter

provided, however, the other conditions as mentioned in the
section are fulfilled. Before ordering maintenance in favour of a father
or a mother against their married daughter, the court must be satisfied
that the daughter has sufficient means of her own independently of the
means or income of her husband, and that the father or the mother, as
the case may be, is unable to maintain himself or herself.”

Kerala High Court’s judgment in M. Areefa Beevi vs. Dr. K.M. Sahib
(1983 CriLJ 412) reads:

“Section 2 (y) of the Code (CrPC) says:

Words and expressions used herein and not defined but defined in the
Penal Code have the meanings respectively assigned to them in that code.

“So we have to refer to the Indian Penal Code.

Section 8 of the I.P.C. reads: The pronoun “he” and its derivatives are
used of any person, whether male or female.

Therefore the expression “his father or mother” occurring in Section 125

of the Cr. P.C. must be taken to have the meaning “her father or
mother.”
4. Adoptive mother can claim maintenance:

Bombay High Court in Baban Alias Madhav Dagadu Dange vs

Parvatibai Dagadu Dange (1978 CriLJ 1436 = 1978 (80) BOMLR
305) said:

According to the definitions given in the General Clauses Act, the

expression “father” includes both natural as well as adoptive father and
the expression “son” also includes both natural born son as well as an
adopted son.

It is true that the General Clauses Act has not defined the expression
“mother”. But that does not mean that necessarily the expression should
be taken in its restrictive sense. Indeed there are many expressions, which
have not been defined in the General Clauses Act. The General Clauses
Act does not claim to be an encyclopedia or dictionary, which defines all
expressions. One has therefore to look, while interpreting such
expressions, which have not been defined, to the context in which the
expression has been used. It would have been a different matter, had the
expression “mother” been defined by the General Clauses Act only to
mean the “woman” who has given birth to the child, that is to say the
natural mother only. Indeed the definition of the expressions “father”
and “son” in the General Clauses Act would furnish a clue to the
interpretation of the term “mother” which has been left undefined in that
Act.

Now if expression “father” and “son” is to be given wider interpretation,

we do not see any valid reason why the expression “mother” also should
not be given similar wider interpretation so as to include an “adoptive
mother” as well.

Such an interpretation would also seem to accord with the legal status of
an adopted son.

5. Step-mother can claim maintenance :

Supreme Court in Kirtikant D. Vadodaria vs. State of Gujarat and

another (1996(4) SCC 479) said:
A childless step-mother may claim maintenance from her step-son
provided she is widow or her husband, if living, is also incapable of
supporting and maintaining her.

Karnataka High Court in Ulleppa S/o Siddanna Kamballi and others

vs. Gangabai w/o Late Siddanna Kambali (2003 CriLJ 2566) said:

In the case on hand, material facts reveal that the step-mother namely the
widow had two sons who are no more. Her daughter who is married, is
living separately with her husband. This Court can take notice that in
many cases, after marriage, the daughters join their husband’s family
and that they may not be able to maintain their mother. Therefore from
the facts of this case it is clear to me that the respondent (petitioner) is a
widow and her daughter is not in a position to support and maintain her.
In these circumstances, this Court can extend the logic and the
reasonings of the Supreme Court by way of ordering maintenance to the
respondents as though she is a helpless step-mother. To grant
maintenance to such helpless step-mothers would be a motherly act and
would be in consonance with the social object of providing maintenance
to the destitute widow of Hindu Community. At the same time, I must add
a rider that if it is proved that she has other modes of maintaining herself
she may not able to get maintenance from her step-sons. The crucial
question is as to whether she can maintain herself without support in the
given set of facts. If the answer is ‘yes’ then she can claim maintenance
from her step-sons. In the case on hand, the evidence on record would
show that she is living alone and on account of her old age she is unable
to maintain herself. It is not the case of the petitioners that her daughter
can maintain her. If that were to be the reason she would not have filed
the application. Taking into consideration the object of Section 125, the
realities of helpless widow with a married daughter living separately, this
Court has to lend its hands in the larger interest of attaining the object of
Section 125.

6. Application for maintenance to be filed where the son / daughter

lives :

Supreme Court in Vijay Kumar Prasad vs State of Bihar & Others

(2004 AIR 2123) said:
It is to be noted that Clauses (b) & (c) of sub section (1) of Section 126
relate to the wife and the children under Section 125 of the Code. The
benefit given to the wife and the children to initiate proceeding at the
place where they reside is not given to the parents. A bare reading of the
Section makes it clear that the parents cannot be placed on the same
pedestal as that of the wife or the children for the purpose of Section 126
of the Code.

As noted by this Court in several cases, proceedings under Section 125 of

the Code are of civil nature. Unlike clauses (b) and (c) of Section 126(1)
an application by the father or the mother
claiming maintenance has to be filed where the person from whom
maintenance is claimed lives.

How is the The Maintenance and Welfare of Parents and

Senior Citizens Act, 2007 Act different from Sec 125 of
CrPC?
1. Senior Citizens included : Sec 125 CrPC is silent on
maintenance of Senior Citizens. It only provides for maintenance
of parents. Which means elderly people who are childless and who
despite having heirs to their property cannot seek refuge or remedy
in Code of Criminal Procedure. Whereas Section 4(1)
of Maintenance and Welfare of Parents and Senior Citizens
Act clearly stipulates that senior citizens can claim maintenance
from legal heirs of their property.
2. Application for maintenance: Only the aggrieved parent can file
a case under Sec 125 CrPC. Whereas Section 5(1) of Maintenance
and Welfare of Parents and Senior Citizens Act says that the
application for maintenance can be filed by the senior citizen or
parent or an organisation authorised by him or the Tribunal may
also take cognizance suo moto, which means that the Tribunal can
initiate the case on its own.
3. Jurisdiction: Application by the father or the mother claiming
maintenance under Sec 125 CrPC has to be filed where the person
from whom maintenance is claimed lives. Whereas Section 6(1)
of Maintenance and Welfare of Parents and Senior Citizens
Act provides that an application for maintenance may be made by a
senior citizen or parent against any children or relative in any
district where the senior citizen or parent resides or where the
children or relative resides.

4. Maintenance Tribunal : Only a Magistrate of first class can give

an order for maintenance under Sec 125 CrPC. Whereas Section 7
of Maintenance and Welfare of Parents and Senior Citizens
Act stipulates constitution of a Maintenance Tribunal, headed by a
Sub-Divisional Officer (Sub-Divisional Magistrate) to decide the
case.

5. Advocates barred : Lawyers / Advocates may represent their

clients under Sec 125 of CrPC. Whereas Section 17
of Maintenance and Welfare of Parents and Senior Citizens
Act explicitly says that legal practitioners shall not represent any
party to a proceeding in the Tribunal or Appellate Tribunal.

6. Time bound : Proceedings under Sec 125 of CrPC are not time
bound. Whereas Section 5(4) of Maintenance and Welfare of
Parents and Senior Citizens Act specifically says that within 90
days from the date of the service of notice of the application, the
matter has to be disposed of by the Tribunal.

7. Appellate Tribunal for appeals : Any appeal against order of

maintenance under Sec 125 of CrPC has to be in accordance with
usual procedure prescribed in the Code of Criminal Procedure,
 1973. Whereas Section 15 of Maintenance and Welfare of
Parents and Senior Citizens Act provides for a separate Tribunal
for Appeals. An officer not below the rank of District Magistrate
would head the Appellate Tribunal.

8. Order on Appeals is time bound : As stated above proceedings

under Sec 125 of CrPC are not time bound. Whereas Section
16(6) of Maintenance and Welfare of Parents and Senior Citizens
Act says that the Appellate Tribunal shall make all efforts to
pronounce its order in writing within 30 days of the receipt of an
appeal.
9. Provision for Conciliation: Sec 125 of CrPC is silent on
conciliation. Whereas Section 6(6) of Maintenance and Welfare of
Parents and Senior Citizens Act creates an option for the Tribunal,
before hearing an application, to refer the matter to a Conciliation
Officer. Report of Conciliation Officer must be submitted to the
Tribunal within 30 days. If an amicable settlement is reached then
the Tribunal shall order accordingly.

10.Comprehensive Legislation: Sec 125 of CrPC is silent on welfare

measures, and is confined to provision for maintenance of
parents. Whereas Maintenance and Welfare of Parents and Senior
Citizens Act is a comprehensive and specific law providing for both
maintenance and welfare of parents and senior citizens. It has a
broader scope and goes beyond the realm of parent-child
relationship. The Act places responsibility on the State
for implementing welfare measures for senior citizens
  Subsection (8) of Section 5 of The Maintenance and Welfare of
Parents and Senior Citizens Act, 2007 deals with the execution of
order. It is provided in this section that if an order to pay
maintenance under the provisions of the Act of 2007 is not
complied with, then the tribunal has the power to issue warrant to
recover the amount due in the manner provided for levying of
fines. It may sentence such person for whole or in part of such
month’s allowance for maintenance and expenses for the
proceeding, which remain unpaid after the execution of the
warrant, to imprisonment for a term which may extend to one
month or until payment. This provision is also present in the Code
of Criminal procedure, in subsection (3) of Section 125. The
provisions for levying fines are embodied in Section 421 CrPC
which prescribes two modes of recoveries of arrears.1
 It has been held by the Gauhati High Court that it is only after the
two modes of realisation of amount in arrears as specified in
Section 421 CrPC is exhausted can the defaulter be sentenced to
imprisonment and prior to taking such action notice must be issued
to the defaulter. With respect to attachment of future salary to
recover the amount of past maintenance and future maintenance
ordered under Section 125 CrPC, the Madras High Court has held
that the Magistrate may issue the warrant which would become
operative when the salary became due to the husband and when the
maintenance became due to the wife.2

1 Section 421 CrPC-
attachment and sale of any movable property belonging

to the offender; (b) issue a warrant to Warrant for levy of fine. When an
offender has been sentenced to pay a fine,the Court passing the sentence may
take action for the recovery of the fine in either or both of the following ways,
that is to say, it may- (a) issue a warrant for the levy of the amount by the
Collector of the district, authorising him to realize the amount as arrears of land
revenue from the movable or immovable property, or both, of the defaulter.

2 Manik v Jai Kumari 1998 CrLJ 3718


  With respect to sentence of imprisonment as punishment under
Section 125 CrPC, it has been held by the Calcutta High Court that
the Magistrate has no jurisdiction to issue warrant of arrest without
making any attempt to realise the amount due as provided in clause
(a) or (b) of subsection (1) of Section 421 CrPC3. However, it has
been held by Kerala High Court in a complaint about default of
payment of maintenance in respect of more than one month the
defaulter can be sentenced to imprisonment for more than one
month and for each month’s default a maximum sentence of one
month was awarded.4

 Under Section 127 of CrPC when there is a change of circumstance

after the order of the Magistrate, the Magistrate is empowered to
either enhance or lower the maintenance ordered.5

3 Dipankar Banerjee v Tanuja Banerjee 1998 CrLJ 907

4 Elora Sundaram v Mammali Sumothi AIR 2007DOC27(Ker)

5 Jaydev Chakravarty v Bharti Chakravarty 1994 CrLJ2234(Cal)

RELEVANT CASE LAWS

SNO. NAME OF THE CASE RELEVANT CITATATION

PARAS
1. Para 2,5 and I (2004) DMC 224
Mehboobkhan vs Babarkhan 7
And Ors. on 23 June, 2003

(Section 127-enhancement of
maintenance)

2. Gopinath Govind Teli v. Para 16.17

Decided On, 17
Sundarabai Govind Teli ,18 and 19
October 2018
At, In the High
Court of Bombay at
Goa
By,THE
HONOURABLE MS.
JUSTICE NUTAN D.
SARDESSAI

3. Hira Lal Sah v. State of Bihar Para 6

( 2010)

RELEVANT PARAGRAPH

A civil suit for Partition between

the petitioner and his father can
in no way affect the
responsibility, moral as well as
legal , cast upon the petitioner as
a son to maintain his parents
who appear to be in need of such
maintenance.

4. Mahendrakumar S/O Ramrao Para 2001 CriLJ 2111

Gaikwad vs Gulabbai And
Ors. on 2 March, 2000
5. Akhilesh Kumar Jagatramka Claim made
v. Ganesh Kumar Jagatramka against only
one
( Chhattisgarh HC 2018) son/petitioner
out of three
sons - Merely
because
petitioner has
two more
brothers, he
cannot shift
his
responsibility
to maintain
his parents,
particularly,
when he has
sufficient
means to
maintain his
parents.