Section 126 of the Code of Criminal Procedure, 1973 (CrPC) prescribes the procedure for maintenance proceedings under Section 125, including territorial jurisdiction, recording of evidence, ex parte orders and costs. For proceedings governed by the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the corresponding provision is Section 145, read with Section 144 on maintenance.
What is Section 126 CrPC?
Section 126 sets out where an application for maintenance may be instituted, how evidence is taken and when the Magistrate may decide a matter in the respondent's absence. It is a procedural provision; eligibility for maintenance and the amount payable are addressed principally under Section 125 CrPC (corresponding to Section 144 BNSS).
1. Where can a maintenance case be filed?
Under Section 126(1) CrPC, proceedings under Section 125 may be taken in a district:
- Where the person against whom maintenance is claimed is;
- Where that person or his wife resides; or
- Where that person last resided with his wife or, as applicable, with the mother of the child born outside marriage.
These are alternative territorial grounds. The place of filing depends on the actual statutory conditions and facts, rather than on a general rule that every claimant may file anywhere.
2. How is evidence recorded?
Section 126(2) requires evidence to be taken in the presence of the person against whom maintenance is sought or, if personal attendance has been dispensed with, in the presence of that person's advocate. Evidence is recorded in the manner prescribed for summons cases. This provides an opportunity to contest the claim and respond to the evidence.
3. When can the Magistrate pass an ex parte order?
If the Magistrate is satisfied that the respondent is wilfully avoiding service or wilfully neglecting to attend court, the Magistrate may hear and determine the maintenance case ex parte. An ex parte order is not automatic merely because a respondent is absent: the statutory conditions must be met.
An application to set aside the ex parte order may be made within three months from the date of the order, on showing good cause. The Magistrate may impose just terms, including costs.
4. Power to award costs
Under Section 126(3), the court may make such order regarding the costs of the maintenance proceedings as it considers just. This is separate from the power to grant maintenance or interim maintenance.
Section 145 BNSS: Corresponding provision in current law
Section 145 of the BNSS, 2023 is titled Procedure and corresponds to Section 126 CrPC. It governs proceedings under Section 144 BNSS, the current maintenance provision. Its core structure covers the permitted districts for proceedings, taking evidence, ex parte determination and orders as to costs. Readers should consult the operative statutory text and applicable state amendments when preparing or defending a case.
Official legislation: India Code and Ministry of Home Affairs. Search for the Bharatiya Nagarik Suraksha Sanhita, 2023 (Act 46 of 2023), Sections 144, 145 and 531.
Original Section 126 CrPC - Statutory text
126. Procedure.
(1) Proceedings under section 125 may be taken against any person in any district-
(a) where he is, or
(b) where he or his wife resides, or
(c) where he last resided with his wife, or as the case may be, with the mother of the illegitimate child.
(2) All evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed for summons-cases:
Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper.
(3) The Court in dealing with applications under section 125 shall have power to make such order as to costs as may be just.
State amendment noted in the original article
Andhra Pradesh and Telangana: The source article records the Andhra Pradesh amendment to Section 126(1)(b), allowing proceedings in a district where the person, his wife, parents or children reside. The amendment is cited as Andhra Pradesh Act 18 of 2007, Section 2. The current operation of this historical amendment, including its application after the BNSS and in Telangana, should be checked against the relevant state's legislation and notifications; it is not presented here as a verified amendment to Section 145 BNSS.
Practical example
A wife residing in a district different from the one where her husband lives seeks maintenance. The statutory jurisdiction provision may permit filing where she resides. If the husband deliberately avoids service or appearance, the Magistrate may proceed ex parte after being satisfied of the statutory conditions. The husband may apply to set aside that order within the prescribed three-month period by showing good cause.
Frequently asked questions
Is Section 126 CrPC still the current procedural provision?
For cases governed by the BNSS after its commencement, the corresponding procedural provision is Section 145 BNSS. The CrPC may remain relevant to proceedings covered by the repeal and savings rules.
Can a wife file a maintenance case where she resides?
Yes, residence of the wife is one of the territorial grounds expressly listed in Section 126(1) CrPC; the corresponding BNSS provision should be checked for a current filing.
Can a maintenance order be passed without the respondent appearing?
Yes, where the Magistrate is satisfied that the respondent wilfully avoids service or attendance, the court may proceed ex parte under the statutory proviso.
What is the time limit to seek cancellation of an ex parte order?
The provision allows an application to set it aside for good cause within three months from the date of the order, subject to just terms.
This article provides general legal information. For a specific dispute, consult the applicable legislation, court rules and a qualified legal professional.