Section 126 of The Code of Criminal Procedure, 1973
- (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 Andhra Pradesh and Telangana.-- Amendment of section 126--In the Code of Criminal Procedure, 1973 (hereinafter referred to as the principal Act) in section 126, in sub-section (1), for clause (b), the following shall be substituted, namely:-- "(b) where he or his wife resides, or where his parents or children resides, or;" [Vide Andhra Pradesh Act 18 of 2007, s. 2]
Summary
- Maintenance proceedings can be filed in any district where the person is, where they or their wife reside, or where they last lived with the wife or mother of a child.
- Evidence must generally be taken in the presence of the person who is being asked to pay, or their legal representative.
- The procedure for recording evidence in these cases follows the rules used for "summons-cases".
- If a person is intentionally avoiding the court, the Magistrate can hear the case "ex parte" (without them) and make an order.
- An "ex parte" order can be set aside if the person applies within three months and shows a good reason for their absence.
- The court has the power to decide who should pay the legal costs of the case.
Practical examples
FAQ
1. Where can a maintenance case be started under Section 126 of the Code of Criminal Procedure, 1973?
Under Section 126 of the Code of Criminal Procedure, 1973, you can file where the husband is, where he or his wife lives, or where they last lived together.
2. Can a Magistrate decide a maintenance case if the husband refuses to come to court under Section 126 of the Code of Criminal Procedure, 1973?
Yes, if the Magistrate is satisfied the person is avoiding court, they can hear the case ex parte under Section 126 of the Code of Criminal Procedure, 1973.
3. How long do I have to challenge an ex parte order under Section 126 of the Code of Criminal Procedure, 1973?
You must apply to set aside an ex parte order within three months of the order date, as per Section 126 of the Code of Criminal Procedure, 1973.
Test yourself
Q1.Under Section 126 of the Code of Criminal Procedure, 1973, evidence in maintenance proceedings must be recorded in the manner prescribed for which type of cases?
Q2.According to Section 126 of the 1973 Code, which of the following is NOT a valid place to take proceedings?
Q3.What must a person show to have an ex parte order set aside under Section 126 of the Criminal Procedure Code?
Q4.Under Section 126 of the Code, what power does the court have regarding the financial burden of the trial itself?