Security for keeping the peace and good behaviour; maintenance of wives, children and parents

1. Security for keeping the peace and good behaviour (ss.125–143; old ss.106–124)

The Sanhita allows a court to require a person to execute a bond, with or without sureties, binding him to keep the peace or be of good behaviour. Failure to give security leads to imprisonment for the period of the bond. There are five situations:

• On conviction (s.125, old s.106): a Court of Session or first class Magistrate convicting a person of an offence under BNS Chapter XI (public tranquillity, with some exceptions), or involving assault, criminal force or mischief, criminal intimidation, or any other offence causing or likely to cause a breach of the peace, may order a bond for keeping the peace for up to three years. It becomes void if the conviction is set aside.
• Breach of peace in other cases (s.126, old s.107): an Executive Magistrate who receives information that a person is likely to commit a breach of the peace or disturb public tranquillity, and finds sufficient ground, may require him to show cause why he should not execute a bond for keeping the peace for up to one year.
• Disseminating certain matters (s.127, old s.108): intentional dissemination of matter punishable under BNS ss.152, 196, 197 or 299, intimidation or defamation of a Judge, or obscene matter under s.294: good behaviour for up to one year. Proceedings against the editor or publisher of a registered publication need State authority.
• Suspected persons (s.128, old s.109): a person concealing his presence with a view to committing a cognizable offence: up to one year.
• Habitual offenders (s.129, old s.110): habitual robbers, house-breakers, thieves, forgers, receivers of stolen property, offenders under specified economic and social statutes, or a person so desperate and dangerous as to be hazardous at large: up to three years.

Procedure

• Preliminary order (s.130): in writing, setting out the substance of the information, the amount of the bond, its term and the number of sureties. In Madhu Limaye v. Sub-Divisional Magistrate, Monghyr, 1970 INSC 231, (1970) 3 SCC 746, the Court upheld the validity of these powers as reasonable restrictions, but held that the order must set out the substance of the information so that the person can show cause; an order without it is invalid.
• Read over to the person in court (s.131), or summons or warrant with a copy of the order (ss.132–133); personal attendance may be dispensed with (s.134).
• Inquiry (s.135): as nearly as possible in the manner of a summons-case trial; interim bond if immediate measures are needed; habitual character may be proved by general repute; to be completed within six months, or the proceedings stand terminated unless the Magistrate directs otherwise for special reasons.
• Final order (s.136): security of no different nature, larger amount or longer period than in the s.130 order; amount not excessive; a child's bond is executed only by sureties. If not proved, the person is discharged (s.137).
• Failure to give security (s.141): committal to prison for the period; if the period exceeds one year, the proceedings go to the Sessions Judge. Breach of a bond under s.136 may lead to detention for the rest of the period.
• Appeal to the Court of Session (s.414); release by the District Magistrate or CJM (s.142).

2. Problem on security

An Executive Magistrate, on information that a person is likely to commit a breach of the peace within his jurisdiction, orders him to execute a bond for three years. Is the order valid? (February 2025.)

Issue. Whether an Executive Magistrate can require a peace bond for three years on apprehension of a breach of the peace.

Law. Section 126 BNSS allows a bond for keeping the peace for a period “not exceeding one year”. Three years is allowed only on conviction (s.125) or for habitual offenders (s.129). Section 136(a) forbids a final order for a period longer than that in the s.130 order, and s.130 requires the order to state the substance of the information. An inquiry under s.135 must precede the final order.

Application. The person has not been convicted and nothing suggests habitual offending; the information is only of a likely breach of the peace. The case falls under s.126, which caps the bond at one year. If the order was made without a show-cause order and inquiry, it is also procedurally defective under Madhu Limaye.

Conclusion. The order is invalid to the extent it exceeds one year (and wholly invalid if the s.130 and s.135 procedure was skipped). It can be challenged by appeal to the Court of Session under s.414 or in revision.

3. Maintenance: nature of the remedy (ss.144–147; old ss.125–128)

Maintenance under the Sanhita is a summary remedy, secular in character, available whatever the religion of the parties. Its object is social justice: to prevent destitution of a wife, child or parent. It does not decide civil rights finally and is in addition to remedies under personal law.

Who may claim (s.144(1))

If a person having sufficient means neglects or refuses to maintain:

• (a) his wife, unable to maintain herself;
• (b) his legitimate or illegitimate child, whether married or not, unable to maintain itself (the word “minor” in s.125(1)(b) CrPC does not appear in the BNSS text; clause (c) deals separately with children who have attained majority);
• (c) his legitimate or illegitimate major child (not a married daughter) unable to maintain itself because of physical or mental abnormality or injury;
• (d) his father or mother, unable to maintain himself or herself,

a Magistrate of the first class may order a monthly allowance at such rate as he thinks fit. There is no upper limit. The father of a married minor daughter may be ordered to pay until she attains majority if her husband lacks means. “Wife” includes a woman who has been divorced, or has obtained a divorce, and has not remarried (Explanation).

• Interim maintenance and expenses may be ordered during the proceedings, and the application should be disposed of within sixty days of service of notice.
• From when (s.144(2)): from the date of the order or, if so ordered, from the date of the application.
• Enforcement (s.144(3)): for every breach, a warrant to levy the amount as a fine, and imprisonment up to one month for each month's unpaid allowance or until payment. Application to levy must be made within one year of the amount falling due.
• Offer to maintain: if the husband offers to maintain her on condition she lives with him, the Magistrate may still order maintenance if she has just ground to refuse; his marrying another woman or keeping a mistress is just ground.
• Disqualifications (s.144(4)): a wife living in adultery, refusing without sufficient reason to live with her husband, or living separately by mutual consent; on proof, the order is cancelled (s.144(5)).

Case law

• Mohd. Ahmed Khan v. Shah Bano Begum, 1985 INSC 97, (1985) 2 SCC 556: a divorced Muslim wife unable to maintain herself may claim under the secular provision; personal law does not exclude it. The Muslim Women (Protection of Rights on Divorce) Act, 1986 followed; in Danial Latifi v. Union of India, 2001 INSC 468, (2001) 7 SCC 740, the Court upheld that Act by reading it to require a reasonable and fair provision for the wife's future, made within the iddat period.
• Mohd. Abdul Samad v. State of Telangana, 2024 INSC 506: a divorced Muslim woman may still claim maintenance under s.125 CrPC (now s.144 BNSS); the 1986 Act does not displace the secular remedy.
• Chaturbhuj v. Sita Bai, 2007 INSC 1190, (2008) 2 SCC 316: “unable to maintain herself” means unable to maintain the standard of living she had in her husband's home; occasional earnings do not disentitle her.
• Badshah v. Urmila Badshah Godse, 2013 INSC 703, (2014) 1 SCC 188: a woman married without knowing that the man's first marriage subsisted may claim as “wife”; the provision must be read purposively.
• Kirtikant D. Vadodaria v. State of Gujarat, 1996 INSC 585, (1996) 4 SCC 479: a stepmother is not “mother” for this purpose, except that a childless widowed stepmother may claim from her stepson.
• Rajnesh v. Neha, 2020 INSC 631, (2021) 2 SCC 324: guidelines on disclosure affidavits of assets and income, overlapping claims under different statutes, the date from which maintenance runs (date of application), and enforcement.

4. Procedure, alteration and enforcement (ss.145–147)

• Where (s.145(1)): in any district where the respondent is, where he or his wife resides, where he last resided with his wife or the mother of the illegitimate child, or where his father or mother resides.
• Evidence (s.145(2)): in his presence or his advocate's, recorded as in summons-cases; an ex parte order if he wilfully avoids service, which may be set aside on application within three months.
• Alteration (s.146(1)): on proof of a change in circumstances of either side, the Magistrate may alter the allowance. He must cancel or vary it to conform to a civil court's decision (s.146(2)).
• Cancellation for a divorced wife (s.146(3)): (a) if she has remarried, from the date of remarriage; (b) if she has received the whole sum payable on divorce under customary or personal law; (c) if she voluntarily surrendered her rights to maintenance after divorce.
• A civil court decreeing maintenance or dowry must take into account sums paid under the order (s.146(4)).
• Enforcement (s.147): a free copy to the claimant; the order may be enforced by any Magistrate where the respondent is, on proof of identity and non-payment.

5. Problem on maintenance

Akshatha obtains a divorce from Bharath and an order of maintenance against him. Two years later she marries Chandan. Bharath wants the maintenance order cancelled. Advise Bharath. (June 2025.)

Issue. Whether a maintenance order in favour of a divorced wife survives her remarriage.

Law. Under the Explanation to s.144(1) BNSS a divorced woman is a “wife” only so long as she “has not remarried”. Section 146(3)(a) directs that where an order has been made in favour of a divorced woman and she has remarried after the divorce, the Magistrate shall cancel the order from the date of her remarriage.

Application. Akshatha was entitled to maintenance as a divorced wife. On marrying Chandan she ceased to fall within the Explanation, and the condition in s.146(3)(a) is met. The Magistrate has no discretion once the remarriage is proved.

Conclusion. Bharath should apply to the Magistrate under s.146(3)(a) with proof of the remarriage. The order will be cancelled with effect from the date of her marriage to Chandan; amounts falling due after that date are not recoverable, though arrears before it remain payable. Any maintenance for their children, if ordered, is not affected.

How this is examined

The essay on security proceedings lists the five cases (ss.125 to 129) with their time limits, then the procedure (ss.130 to 141) and Madhu Limaye. The maintenance short note covers who may claim, sufficient means and neglect, interim maintenance within sixty days, enforcement, and Shah Bano with Abdul Samad. Problems turn on the time limit in s.126 and on the cancellation grounds in s.144(5) and s.146(3).