A voluntary offer of maintenance under Section 125 of the Code of Criminal Procedure (CrPC), 1973 by the husband can only be made before the proceedings initiated by the wife concludes, and not after a maintenance order in her favour has attained finality.

Justice Mangesh S Patil of the Bombay High Court recently clarified this position, holding that,

“… any offer to be made by the husband to maintain the wife as contemplated under Second Proviso to Sub­Section 3 of Section 125 has to be made only during the hearing of a proceeding under Sub­Section 1 of Section 125. Once that proceeding is decided, no such offer can be made or entertained in a proceeding under Sub­Section 3 for issuance of warrant for recovery of maintenance allowance.”

In the case before the Court, the wife had succeeded in her claim of maintenance made under Section 125 (1) CrPC made before a Magistrate. The husband filed an application offering to maintain his wife after the maintenance order passed by the Magistrate in the wife’s favour was at the stage of execution.

In making such an offer to maintain his wife, the husband invoked the second proviso to Section 125 (3), CrPC, which states,

“Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.”

He, therefore, contended that his wife and child were not entitled to claim the maintenance passed in their favour, since they were refusing his offer to maintain them and staying separately without sufficient reason.

The Magistrate rejected his application, as did the Additional Sessions Court in a plea for revision. In the petition challenging these rulings, the question before the Bombay High Court was as follows:

Whether the husband can make an offer to maintain his wife as contemplated in the Second Proviso to Sub Section 3 of Section 125 of the Code of Criminal Procedure even after the proceeding for maintenance under Sub-Section 1 of Section 125 is concluded, in a proceeding initiated by the wife for enforcement of the order of maintenance as contemplated under Section 125 (3)?

The Court answered this question in the negative. Among other factors, the Court noted that the phrasing of the proviso invoked itself indicated that a husband’s offer to maintain his wife should be made before the final order is passed in the maintenance claim initiated by the wife. As noted in the High Court’s judgment,

“Use of the word ‘section’ in this proviso and not ‘sub­ section’ is conspicuous and makes it abundantly clear that such an offer by the husband and the refusal by the wife is to be considered while considering the latter’s request/claim for maintenance.”

The Court noted that this provision only lays down a contingency which the Magistrate may consider while passing an order under Section 125, CrPC. On the other hand, in this case, the maintenance order passed in the wife’s favour had attained finality. In this backdrop, the High Court held,

“In my considered view, it cannot be interpreted to mean that even after the Magistrate has awarded maintenance and the proceeding under Sub­ Section 1 of Section 125 is concluded in favour of the wife, her husband could raise an offer to maintain her while she is seeking to execute the order.”

The Court also held that the bona fides of an offer made by the husband to maintain his wife would have to be determined on a case-to-case basis.

Relevant observations made to this effect by the High Court include,

“…The proviso cannot be interpreted to mean that the parties are to be relegated to the initial stage allowing them to lead evidence to prove and disprove the offer being made by the husband. Otherwise, there would be no finality and it would be always open for the husband to make an offer at every attempt by the wife to recover the allowance and protract the matter incessantly.“

Further, the Court also emphasised that such final orders cannot so be resurrected so as to ensure speedy remedy in maintenance cases.

“One cannot forget that in Chapter IX, a summary proceeding and a speedy remedy is contemplated to enable a wife and minor children and parents who have been neglected or refused, to claim maintenance. Any interpretation sought to be placed on Second Proviso of Sub­Section 3 which runs counter to the object of providing for a speedy remedy to recover maintenance needs to be scuttled down. “

The Court, therefore, affirmed the lower court rulings in the case and dismissed the husband’s petition.