Section 125 CrPC – Can A Mother Seek Maintenance From Her Children Instead Of Seeking It From Husband?

Under Section 125 CrPC, a Magistrate can pass a maintainence order against a person having sufficient means neglects or refuses to maintain;

  1. his wife, unable to maintain herself, or
  2. his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
  3. his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
  4. his father or mother, unable to maintain himself or herself

The question is whether a wife can choose to seek maintenance from her major son instead of seeking it from her husband?

If we read Section 125 CrPC, we can see that maintenance order can be passed against a husband, father and children and there is nothing in the provision which says a wife has to first seek it against her husband before seeking it against her children.

This view can seek support from a Gauhati High Court judgment in Akham Joy Kumar Singh vs. Akham Ibobi Singh (2005) 3 GLR 236. Though not in the exact context, it was observed thus: A plain reading of the law shows that Legislature has intentionally used the word ‘any person’ thereby definitely meaning that any of the several persons may be chosen and it is not obligatory on the part of the claimant seeking maintenance to name all the persons ‘having sufficient means’ to be proceeded against, or in other words, it is optional for a claimant to seek an order of maintenance from any of the several persons, if there are more than one, having sufficient means, ‘having sufficient means’ is the qualifying phrase for ‘any person’ notwithstanding. I repeat, from the reading of the law, it appears that there is nothing obligatory either on the part of the Magistrate or on the part of the person seeking relief under Section 125 Cr.P.C. to include all sons and daughters when the parents are claimants. It appears the claimant has an option to choose. [ Bombay HC has disagreed with this view in a different context]

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