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HINDU LAW — COMPREHENSIVE NOTES

Topic 71

Maintenance under S.125 CrPC / S.144 BNSS vs. HAMA

Maintenance — Comparative & Cross-Statute

Relevant Sections: S.125 CrPC | S.144 BNSS | S.18 HAMA

Priority: HIGH | Exam Relevance: RJS/DJS/PCS-J

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Maintenance: S.125 CrPC / S.144 BNSS vs. S.18 HAMA

1. Introduction

Maintenance of wife, children, and parents is provided under multiple statutes in Indian law. The two primary avenues for a Hindu wife are: (a) Section 125 of the Code of Criminal Procedure, 1973 (CrPC) — now replaced by Section 144 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023; and (b) Section 18 of the Hindu Adoptions and Maintenance Act, 1956 (HAMA). While both provisions aim to prevent destitution and vagrancy, they differ significantly in scope, procedure, applicability, and quantum. Understanding these differences is critical for both MCQ and descriptive examinations.

2. Section 125 CrPC / Section 144 BNSS

A. Nature and Object

Section 125 CrPC (now S.144 BNSS) is a secular provision available to women of ALL religions. Its object is to prevent vagrancy and destitution by providing a speedy, summary remedy. The Supreme Court in Chaturbhuj v. Sita Bai held that its purpose is ‘not to punish a person for his neglect but to prevent the vagrancy and destitution of a deserted wife.’ In ABC v. XYZ (2025 INSC 129), the Supreme Court emphasized that maintenance under S.125 is ‘not a benefit received by a wife but rather a legal and moral duty owed by the husband.’

B. Who Can Claim?

• Wife (including a woman whose marriage is void, in certain circumstances)
• Legitimate or illegitimate minor children (below 18 for sons; unmarried daughters of any age)
• Parents unable to maintain themselves

C. Key Features

• Secular: Available to women of all religions — Hindu, Muslim, Christian, Parsi, or any other faith.
• Criminal Proceeding: Filed before a Magistrate of the First Class. The proceeding is quasi-criminal and summary in nature.
• Condition: The claimant must be ‘unable to maintain herself’ and the respondent must have ‘sufficient means’ to maintain.
• Quantum: No fixed limit. The court considers the respondent’s income, the claimant’s needs, and the standard of living during marriage.
• Enforcement: Non-payment is punishable with imprisonment up to one month (S.125(3) CrPC).
• S.144 BNSS Enhancement: The BNSS, 2023 (effective 01.07.2024) retains the essence of S.125 CrPC but introduces digital filing provisions and stricter compliance mechanisms.

D. Wife’s Disentitlement (S.125(4)/S.144(4))

• If she is living in adultery
• If she refuses to live with her husband without sufficient reason
• If they are living separately by mutual consent

3. Section 18 HAMA — Maintenance of Hindu Wife

A. Nature

Section 18 is a personal law provision applicable ONLY to Hindus (including Buddhists, Jains, Sikhs). It provides a civil remedy for maintenance.

B. Key Features

• Right During Subsistence of Marriage: A Hindu wife is entitled to be maintained by her husband during the subsistence of the marriage. This right exists irrespective of whether she lives with him or separately.
• Living Separately Without Forfeiting Right: Under S.18(2), a Hindu wife can live separately and still claim maintenance if the husband: (a) is guilty of desertion; (b) has treated her with cruelty; (c) is suffering from a virulent form of leprosy; (d) has any other wife living; (e) keeps a concubine; (f) has converted to another religion; (g) any other cause justifying separate living.
• Civil Remedy: Filed as a civil suit or application before the civil court or family court.
• No Criminal Sanction: Unlike S.125 CrPC, there is no imprisonment for default. Enforcement is through civil execution.
• Forfeiture: The wife forfeits her right if she is unchaste or ceases to be a Hindu by conversion.

4. Comprehensive Comparative Table

5. Simultaneous Claims

The Supreme Court has consistently held that there is no bar to claiming maintenance under multiple provisions simultaneously. However, the court granting maintenance under one provision must take into account the amount already awarded under another provision to avoid double recovery. In Shome Nikhil Danani v. Tanya Banon Danani, the SC held that a claim under S.125 CrPC does not preclude relief under the DV Act, 2005.

6. Key Case Law

7. Exam Tips & Mnemonics

— End of Topic 71 —

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