• Regarding Section 125 of Code of Criminal Procedure 1973

Separated with my wife and she had filed a case against me where Case Code is CRMA - J under section 125 of Code of Criminal Procedure 1973. 

Is this a criminal case or a family law case?

We are now planning to go for mutual consent divorce because my ex wife wants to speed things up. I am willing to go through mutual consent but I would like this case to first get withdrawn but my ex wife’s family is saying they do not have the ability to take this case back because it is a criminal case where it is me against the state and not me against my wife. Is this true?

They are willing to take steps on their side as needed to help withdraw the case. What steps do my ex wife or I need to take to get the case withdrawn?
Asked 5 months ago in Family Law from Canada
Religion: Hindu

1) it is filed in magistrate court for maintenance and is governed by provisions of criminal procedure code 

 

2) case for maintenance filed u/s 125 CrPC can be withdrawn by filing application u/s 257 CrPC at any time before a final order is passed by the Magistrate duly stating reasons for withdrawal and attaching an affidavit,

Ajay Sethi
Advocate, Mumbai
62517 Answers
3810 Consultations

5.0 on 5.0

Section 125 in The Code Of Criminal Procedure, 1973

125. Order for maintenance of wives, children and parents.

(1) If any person having sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

1. Subs. by Act 45 of 1978, s. 12, for" Chief Judicial Magistrate" (w. e. f, [deleted] ).

(c) 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

(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means. Explanation.- For the purposes of this Chapter,-

(a) " minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875 ); is deemed not to have attained his majority;

(b) " wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

(2) Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance.

(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month' s allowances remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due: 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. Explanation.- If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife' s refusal to live with him.

(4) No Wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.

(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.

 

 

She has the ability to withdraw any given day, i am giving you the assurance over writing here, give her property and loads of money, her lawyer will withdraw instantly, or else you will suffer more, this is the truth, it may sound bad to you, but i have no interest in hurting you either. 

Aveek Bose
Advocate, Kolkata
868 Answers
4 Consultations

4.7 on 5.0

1) If they withdraw case, then they have to give reason and blame stands on them so they will not withdraw case because case may go against them. Only one thing can be done both the party will not attend hearing than case may get dismiss.

 

2) Ask first withdraw case or dismiss than go for Mutual Consent Divorce.

Ganesh Kadam
Advocate, Pune
6771 Answers
53 Consultations

4.9 on 5.0

1. This is a qausi criminal case which means it is neither civil nor criminal case but mixture of both.

2. If both of you going for amicable settlement then do so by way of a mutual divorce to be filed and obtained in Indian court only.

3. In the petition of the said mutual divorce you can incorporate all such terms which you wish to include including exchange of alimony and withdrawal of the said 125 case.

4. Before the final hearing of the said mutual divorce petition she can withdraw the 125 crpc case by mere attending the court and filing a petition for withdrawal.

Devajyoti Barman
Advocate, Kolkata
16838 Answers
238 Consultations

5.0 on 5.0

1. It is a quasi criminal case which does not have penal consequences unless the order of maintenance is not complied with.

2. If you are not divorced then she is not your 'ex wife'. 

3. Your wife is wrong in saying that she cannot withdraw the case. It can be withdrawn by her by recording a statement to this effect in the court.

 

Ashish Davessar
Advocate, Jaipur
25947 Answers
753 Consultations

5.0 on 5.0

The SC has held that 125 crpc is civil in nature though if order is not followed it attracts penalty.

Further more 125 crpc case can be withdrawn by filing an appllication before the court.

See draw a MOU for mutual divorce and compromise wife on ground of compromise can file an application.seeking liberty to withdraw the case and not pursue further.

Shubham Jhajharia
Advocate, Ahmedabad
16165 Answers
66 Consultations

5.0 on 5.0

Hello

        The case u/s 125 is a maintenance case filed b th a dependent against the person who has an obligation to maintain the applicant. Here the obligation is upon you. The wife or the dependent can anytime withdraw the case if the person's grievances have been addressed. She not speaking the truth and therefore ask her to withdraw the case and proceed ahead with MCD.

REGARDS 

Rahul Mishra
Advocate, Lucknow
3563 Answers
10 Consultations

5.0 on 5.0

HI

1) It is a maintenance case filed by your wife u/s 125 of Cr.P.C

2) It is a Criminal case where in your wife has demanded monthly maintenance from you. 

3) It appears that your wife side has been mislead. Maintenance case is not between State and you . It is between you and your wife only and the state is NOT involved. 

4) This case can be compromised before the court or at Lok adalat by the parties.  No public prosecutor intervention is required as the State is NOT  a party to the case. 

5) In order to get the case withdrawn or compromised, your wife should file a withdraw petition  or both the parties can enter in to a memorandum of compromise and submit the same  before the court jointly. 

Hope this information is useful. 

Rajgopalan Sripathi
Advocate, Hyderabad
1621 Answers
262 Consultations

5.0 on 5.0

Dear Sir,

No need to any agreement,.file a withdrawl petition u/sec.257 Cr.P.C.supported by an affidavit.
section 125 of crpc and Domestic violence case both are complaint case/petition and the petitioner/complainant has right to withraw after filing an application or record her statement before court.
Both advocate signature and both parties signature are needed to withdraw petition to ensure that no fraud is being played. Then judge write order like petition withdrawn in open court due to so and so reason.

Netravathi Kalaskar
Advocate, Bangalore
2514 Answers
6 Consultations

5.0 on 5.0

1. It's a quasi criminal case. In laymen terms, it's a case having properties of a criminal as well as civil case.

 

2. Your wife can withdraw her petition at any point of time during its pendency.

Siddharth Jain
Advocate, New Delhi
4310 Answers
45 Consultations

5.0 on 5.0

ask your wife to withdraw the police complaint she filed for maintenance

the state, through the police, can then produce this withdrawal request letter to the court and the Magistrate will dismiss the complain 

Yusuf Rampurawala
Advocate, Mumbai
4022 Answers
17 Consultations

5.0 on 5.0

Proceedings under Section 125, Cr.P.C are filed to seek maintenance.  They are quasi civil/ quasi criminal proceedings. 

Your wife is clearly misleading you or has been misled by her Lawyer.  Proceedings under Sec 125 are not between the state and you.  It is between your wife and you and you simpliciter need to have your wife make an Application before the Court to withdraw the case in lieu of the settlement between the both of you.  

Radhika Mehta
Advocate, Mumbai
460 Answers
4 Consultations

5.0 on 5.0

Sec 125 CrPC is about Maintenance. You should file a reply containing the ongoing process of negotiation and your plans for mutual consent divorce.

Once a settlement has been reached between you and your wife, you can file the same before the court and court will dismiss 125 case against you. 

Junaid Ali Khan
Advocate, New Delhi
173 Answers
1 Consultation

4.7 on 5.0

It is the criminal application for maintenance for your wife. once you file consent terms you can include the clause of quashing all the cases criminal and civil against you from the wife. On that condition you can enter into mutual terms.

Prashant Nayak
Advocate, Mumbai
9226 Answers
15 Consultations

4.8 on 5.0

This is no doubt a case under criminal law however it is matrimonial in nature hence ther is nothing serious about it, it is almost like a civil case in a family court.

The petitioner can withdraw the case whenever she would like to withdraw the same.

Her parents are misguiding about it hence you may inform them that she can withdraw the same even before the mutual consent divorce can be filed.

T Kalaiselvan
Advocate, Vellore
52590 Answers
632 Consultations

5.0 on 5.0

IT IS  CIVIL. BUT COMBINATION OF BOTH PROCEDURES. FILING , VAKALAT,  CROSS EXAMINATION OF PARTIES (PARTLY HEARD), ARREST BODY WARRANT,  ATTACHMENT PROCEDURES. I CONLCUDE IT IS PURELY A CIVIL RIGHT GUIDED BY CRIMINAL PROCEDURE CODE.

Mohammed Mujeeb
Advocate, Hyderabad
7710 Answers
3 Consultations

4.5 on 5.0

1. The case has been filed u/s125 of Cr.P.C. and not under any section of IPC (Indian Penal Code).

 

2. The said appliaction can very well be withdrawn on the next date of hearing submitting that she has settled the alimony against the MCD petition filed jointly by both of you.

 

3. It is not an FIR under any section of IPC to claim that the complaint can't be withdrawn since the section iis nin-compoundable.

 

4. Ask youir wife to withdraw the application field u/s125 of Cr.P.C. and file a MCD petition on agreed terms which wiull be decided within 6 & 1/2 months from the date of its filing.

 

 

Krishna Kishore Ganguly
Advocate, Kolkata
22004 Answers
570 Consultations

5.0 on 5.0

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