Magistrate passing maintenance order under S. 125 Cr.P.C. when not empowered

[Anonymous]

A magistrate, who was not having the power under Section 125 of Cr.P.C. to pass such an order, has passed an order of maintenance of ₹ 10,000 against me. My lawyer is advising me to challenge this order since the particular magistrate is not empowered to pass such an order. What is the legal position in this regard? Can his order be set aside on this ground?

[Dr. Ashok Dhamija]

As per the provisions of Section 461(g) of the Cr.P.C., where a magistrate makes an order for maintenance, when he is not empowered by law in this behalf, his proceedings are void. This means that the order of maintenance passed by the magistrate is invalid and can be set aside by the higher courts. Therefore, your lawyer has correctly advice to challenge this order and get it set aside by the higher courts.     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

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