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This article is written by Heba Ajaz, pursuing a Certificate Course in Introduction to Legal Drafting: Contracts, Petitions, Opinions & Articles from LawSikho.

Introduction

On 28th March 2021, the Chief Justice of India lauded the Uniform Civil Code of Goa for its administrative ease and, while many critics jumped the bandwagon to debate the grounds for secular laws in India, the existence of Section 125 of the Code of Criminal Procedure (“CrPC”) acts as a beacon of light for those impeded by the codices of personal laws. In layman’s terms, this section enables citizens to demand their right to maintenance from those legally obligated to provide for them. Such a State-enabled legal mechanism to prevent destitution is rooted in the philosophy of Article 15(3) and Article 39(f) of the Indian Constitution through which the State can foster civic responsibilities towards the historically and structurally disadvantaged groups of the society, especially women and children. Thus, Section 125 essentially creates a safety net for those at the risk of facing moral and material abandonment from their families.

Onus of proof

The precepts of Section 125(1) of the CrPC are necessary for the grant of maintenance. Accordingly, a petition must be filed proving neglect on the part of the person against whom the right to maintain is created. Such neglect can be expressed or implied and the Court has to assess the refusal to maintain on the facts and circumstances of the case. It is pertinent to note that the person against whom the right to maintenance is sought must have sufficient means to provide for the same. 

To what extent can one claim insufficiency?

The word “means” is not limited to tangible goods or property but also includes the potential earning capacity of an individual. In the recently held case of Rajnesh v. Neha, the Supreme Court reiterated the position that an able-bodied husband is presumed to be capable of sufficiently maintaining his wife and children. On this expectation, it is a weak excuse that the husband is not in a position to earn sufficiently. Therefore, to discharge a legal obligation to maintain, it must be proved that the inability to maintain exists for reasons beyond one’s control. 

Who can seek maintenance?

Under Section 125 of the CrPC, maintenance can be sought by any of the following parties unable to maintain themselves: 

  • The Wife 

 {Miscellaneous}: Claim for allowance can be defeated as per Section125 (4)if:

  • The wife is living in adultery i.e., leads an adulterous course of life.
  • Without sufficient reason (on unjust grounds), the wife refused to live with her husband.
  •  The husband and wife are living separately by mutual consent. (To be assessed as per facts and circumstances)
  • “Minors”: 
  • Unmarried legitimate children
  • Married legitimate children
  • Unmarried illegitimate children
  • Married illegitimate children
  1. Children who have attained majority but are incapable to maintain themselves due to:
  • Physical abnormality
  • Mental abnormality
  • Injury

 Applies to:

  • Legitimate or illegitimate married son
  • Legitimate or illegitimate unmarried daughter.

Note that in the case of a married daughter who is unable to maintain herself, the obligation to maintain her is primarily entrusted to the husband.    

  1. Parents:
  • Father
  • Mother

Judicial pronouncements

Wife

 To maintain a grant for the petition, the wife has to positively aver and prove neglect or refusal to maintain on the part of her husband. 

  • Proof of marriage: In the case of Dwarika Prasad Satpathy v. Bidyut Prava Dixit, the Supreme Court inferred that the validity of the marriage can be sufficiently adduced from the evidence brought on record by the parties. For instance, the presumption operates in favor of marriage, irrespective of the fact whether the rites of the marriage followed were complete as per the Hindu rites. Furthermore, a rebuttable presumption can be made in cases where the spouses have lived together for a long period of time, but one of them denies their marital status.
  • Interpretation of “wife”: In Chanmuniya v. Virendra Kumar Singh Kushwaha, the Court opined that the term “wife” should be given a broad and extensive application and that strict proof of marriage must not be a necessary prerequisite for claiming maintenance under Section 125. These also include cases where a man and a woman have been living together for a considerably long period of time. Thus, affirming the maintainability of the petition in the case of live-in relationships.
  • Earning capacity of wife: What is the test applied in case the wife has an income and files a maintenance petition under Section 125? In Chaturbhuj v. Sita Bai, it was explained that where the personal income of the wife is insufficient, she can claim to be maintained. The Court has to ascertain whether the wife is in a position to maintain herself in the way she would have if her husband were absent. Moreover, the standard of living she aspires to have should be consistent with the status of the family and is neither too penurious nor luxurious as observed in Bhagwan Dutt v. Kamla Devi. This Court in Shamima Farooqui v. Shahid Khan reiterated that the obligation placed on the husband to provide maintenance stands on a higher pedestal than the wife.
  • Divorced wife: In the case of Rohtash Singh v. Ramendri,  the  Court inferred that the correct position of law is that the first part of Section 125 deals with the subsistence of marriage and Explanation (b) to sub-section 1 covers the claim for maintenance by a divorced wife. It was held that a divorced wife, unable to maintain herself and who has not remarried is entitled to maintenance. Therefore, wherein a wife had deserted her husband post-divorce, her desertion did not relinquish the husband’s duty to maintain her.
  • The multiplicity of proceedings: In Rajnesh v. Neha, the Court duly acknowledged that while it is inequitable to direct the husband to pay for maintenance under multiple proceedings, it is a settled principle that a wife can seek a claim under different statutes. However, it must follow that she is legally obligated to disclose the maintenance awarded to her previously in a subsequent proceeding filed under another enactment.

The children 

A grant for maintenance can be sought for children who are minors. i.e., with reference to Explanation (a) of Section 125 of CrPC, it refers to persons who have not completed 18 years of age as per the Indian Majority Act, 1875. The child may be male or female. In the case of a married female child, she may seek maintenance either from her husband or father. If in case her husband does not have the sufficient means to maintain her, the Court can direct her father to fulfill her expenses until she attains majority. Thereafter, the responsibility solely lies on the husband.

  • Age to maintain is no bar: In the case of Nanak Chand v. Chandra Kishore Aggarwal, the Court opined that helpless children who are unable to maintain themselves because of their deformity or any other handicaps, though majors have the right to seek maintenance. It is very unlikely that a son aged 77 may claim maintenance from his 98-year-old father. Such anomalies rarely exist but are very well placed for remedy within the purview of this law.
  • Lack of Custody does not duty to maintain: A lot of cases (Ralla v. Atti, Sultan v. Mahtab Bibi) of the Punjab High Court reasoned that father cannot deny maintenance on grounds that they do not have custody of their child. They are legally obligated to maintain their children and cannot impose conditions that the child should live with them, as opposed to the mother to receive maintenance. 
  • Refusal to cohabitThe case of Parvathi v. Ramaswami, is not good law. The Father cannot refuse to maintain his child on the ground that the child has refused to cohabit with him. The defeat of a maintenance claim under Section 125 (4) does not apply to children. It only applies to a wife living separately without just reason.

Maintenance petition under Section 125 CrPC: drafting pointers

  1. Index, Synopsis, and List of Date and Events:

Every well-drafted petition compulsorily has an index, a list of events, and a synopsis that enables the judge to peruse through the document without any hassles. Synopsis provides a brief overview of the contention between the parties to a case. 

A list of dates and events provides a chronological narration of the relevant facts between the parties. For instance, in a petition for maintenance filed by a wife against the husband, the petition must contain a serial enumeration of the facts of marriage leading up to the point where maintenance was refused or neglected and the cause of action arose. 

DATE

LIST OF EVENTS

DD/MM/YY

Brief facts about the marriage:

a. Date

b. Matrimonial residence 

 

  1. Case details: Other relevant yet nitty-gritty details from the case number to the Memo of the parties which includes their age, address, and details of the Petitioner(s) and the Respondent.
  2. Subject: The subject in the petition states that it is a Petition for maintenance under Section 125 of the Code of Criminal Procedure, 1973.
  3. General pointers:
  4. The first paragraph of the maintenance petition generally contains the expanded facts of the case. The above-mentioned list of events must run parallel to these facts to maintain synchrony.
  5. First and foremost, it is relevant to write down the status of the parties; that Petitioner No. 1 is the legally wedded wife of the Respondent. Or that she is divorced yet unmarried. 
  6. The next paragraph should cover the details with respect to the solemnization of marriage. This has to be assessed according to the facts of the case. For instance, relevant facts may include the registration of marriage, or solemnization as per relevant rites and traditions recognized under their personal laws, or details of a child between the parties; as is relevant to the context.
  7. The subsequent point may cover the nature of the relationship between the parties. This can be followed by the events when the cause of action arose.
  8. It is important to mention that the Petitioner is financially deprived and has no means to maintain itself. 
  9. The Respondent’s source of income/ financial status must be described in detail.
  10. Jurisdiction: It is important to mention whether the court has the jurisdiction to preside over the matter.
  11. Prayer: The Prayer must direct the court to award a specific amount of maintenance, or apply their discretion as is in the best interests of the Petitioner.
  12. Verification and Affidavit: This follows a standard format as stated in the sample below.

IN THE COURT OF PRINCIPAL FAMILY JUDGE AT  (ADDRESS)

CASE NO. (AS PROVIDED BY THE COURT)  OF (YEAR)
IN THE MATTER OF:

MRS. X                                                               …PETITIONER

VERSUS

MR.Y                                                                … RESPONDENT

Petition for maintenance under Section 125 of Criminal Procedure Code, 1973

Most respectfully showeth:

The Petitioner respectfully submits as under:

  1. That Petitioner No. 1 is the legally wedded wife of the Respondent.
  2. That marriage of the Petitioner was solemnized with Respondent on (date) at (place). {Conditional to personal laws: According to Hindu rites and ceremonies} and/or registered at….  After the marriage, the Petitioner was residing at her matrimonial home. Two years later the solemnization of marriage, Petitioner no. 1 was blessed with a child, Petitioner no. 2.
  3. That for about four years, relations between Petitioner No. 1 and her husband Respondent were cordial but thereafter, he treated her with cruelty……
  4. That after such repeated acts of cruelty, Petitioner No. 1 and 2 have been compelled to leave their matrimonial home.
  5. That the Respondent never sent any money to the Petitioner to meet with her expenses and the expenses of her minor child.
  6. That the petitioner having no source of income is unable to maintain herself and her child.
  7. That the Respondent owns a grocery store and earns  Rs.10,000/- per month.
  8. That the Respondent has no other liability, while the Petitioner is dependent upon him for her day-to-day expenses.
  9. That the Petitioner is accordingly entitled to claim maintenance to meet her day-to-day expenses.
  10. That this Court has the jurisdiction to entertain and try this petition as marriage between the petitioner and the respondent was solemnized here and the petitioners are living within the jurisdiction of this Court.
  11. In the facts and circumstances of the case mentioned hereinabove this Hon’ble Court may graciously be pleased to:

P R A Y E R

That the Petitioner, therefore, prays:

  1. the Respondent be directed to pay a monthly allowance of Rs. 6,500/- by way of Maintenance i.e., Rs. 4,000 for Petitioner No.1 and Rs, 2,500 for Petitioner No. 2  from the date of the application. Petitioner No. 2 is a minor child, and the petition on his behalf his filed through his mother.
  2. Any other relief or reliefs which the court may deem proper under the circumstances be also awarded to the petitioner.

PETITIONER

THROUGH

Advocate

Place :

Date :

——————————————————————————————————

VERIFICATION

Verified at (place) on this day of (date) that the contents of paragraph  (No.) to (No.) are true to my knowledge and; and the contents of paragraph (No.) to (No.) are based on legal advice received and believed by me to be true and lastly, paragraph (No.) is the prayer before this Hon’ble Court.

PETITIONER

AFFIDAVIT FORMAT

IN THE COURT OF PRINCIPAL FAMILY JUDGE AT  (ADDRESS)

CASE NO. (AS PROVIDED BY THE COURT)  OF (YEAR)
IN THE MATTER OF:

MRS. X                                                               …PETITIONER

VERSUS

MR.Y                                                                … RESPONDENT 

AFFIDAVIT

I, Mrs. X, aged (..) years, Occupation (…) and Resident of (….), the Petitioner do solemnly affirm and declare as under:

That I am the Petitioner in the accompanying Petition under Section 125 of CrPC and well acquainted with the facts of the case which have been drafted on my instruction

  1. That the same is true to the best of knowledge and beliefs.
  2. That the Petitioner has not remarried and has not been guilty of any conduct disentitling her to receive maintenance from the Respondent and no relevant or material fact has been concealed or kept back.
  3. That the Petitioner does not own any movable or immovable property and has also no source of income.

Signed at (place) on (date)                                                                                                DEPONENT

——————————————————————————————————

VERIFICATION

Verified at (place) on this day of (date) that the contents of my affidavit true to my knowledge and; nothing material or relevant is false or concealed from.

Signed at (place) on (date)

DEPONENT

Conclusion

Therefore, a maintenance petition filed under Section 125 of the CrPC provides a speedy, quick, and accessible remedy to all the aggrieved irrespective of their personal laws. 


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