Ansari Solicitor Firm

Remedies for Default in the Payment of Maintenance (Section 125 CrPC) : When Husband Loses His Job


Situation: A maintenance order was passed in favour of the wife under Sec 125(1)(a) of CRPC in 2016. Due to the prevailing COVID-19 circumstances, the husband lost his job and is no longer is a position to comply with the order and has defaulted in the payment of maintenance for a few months now. The husband and wife also have a major son who is an earning member of the family and resides with the wife. What are the solutions available for the husband?

There is no provision for appeal available against an order of maintenance therefore in this case, the party aggrieved by the order has an option to file for revision of the order.

The power of revision is vested in the High Court and the Sessions Court under Section 397 of CRPC. The section states that, “The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order,- recorded or passed”.  When the High Court or the Sessions Court call for records from the inferior court under the aforementioned section, it causes an indirect stay in the proceedings of the inferior court as they are no longer in possession of records of the proceedings, and hence can not proceed with the case.

If the order was passed by the Family Court then revision application would lie before the High Court under Section 397, read with Section 401 of CRPC as the Family Court is presided by a Sessions Judge. Section 401 of CRPC lays down High Court’s power to revision. If there is no family court in an area, the Magistrate is vested with the power of a Family Court. Then in such a situation, when the Magistrate has passed an order of maintenance, the revision would lay before the Sessions Court under Section 397 read with Section 399 CRPC and not before the High Court. Section 399 of CRPC lays down Session’s Judge’s Power of Revision.

Now in this case a revision application cannot be sought nor can the order of maintenance be challenged as the order was passed in 2016 and the husband did not raise any objections at the time the order was passed instead he complied with the order for four years till he lost his job. Further, for an order to be challenged, there must be some error or fault in the order by the Judge. Since the loss of job was in response to an unforeseeable situation, it fails to provide for a valid ground to challenge or revise the order of maintenance.  

Since the circumstances have changed owing to loss of job in response to the pandemic, the husband has an option to file for an alteration of maintenance under Section 127 of CRPC. Sec 127(1) reads,  “On proof of a change in the circumstances of any person, receiving, under section 125 a monthly allowance, or ordered under the same section to pay a monthly allowance to his wife, child, father or mother, as case may be, the Magistrate may make such alteration in the allowance he thinks fit”.

However, a prerequisite of filing an application under Section 127 is that the arrears of unpaid maintenance needs to be cleared till date of filing of the application. As the judge will ask for compliance of previous order given by the court before it can entertain a application for alteration.

Another option is also available to the husband, that is to file a claim for  maintenance as a parent against his son under section 125(1)(d). To avail this section, it must be proved that the son has sufficient means to maintain his father and has no liabilities or debt on his name.

Written By:

Natasha Menon (5th Year BA.LLB, Maharaja Sayajirao University Baroda)

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