This article is written by Mustafa Vilaitywala, pursuing a Certificate Course in Introduction to Legal Drafting: Contracts, Petitions, Opinions & Articles from LawSikho.
Table of Contents
What is a maintenance application under section 125?
Maintenance law under section 125 of CrPC has been enacted as a measure of social justice to provide financial assistance (maintenance) to wife, children and parents, so as to prevent them from falling into destitution. A maintenance application made under this section is presented before the Magistrate, provided at such monthly rate as the Magistrate deems fit. This further provides an option of an interim application to be filed under its sub section 3 during the course of proceeding.
This article attempts to explain various aspects pertaining to an application for maintenance under section 125, in light of recent “Guidelines” framed by the Hon’ble Supreme Court in the matter of Rajnesh v. Neha & Anr, further discussing upon jurisdiction, grounds and interim application.
Grounds to claim maintenance
Following are the grounds to claim maintenance under Section 125 of CrPC:
- If she is divorced by her husband, or
- Obtained divorce from her husband, and
- She has not remarried, and
- She is not able to maintain herself.
What should an application under section 125 of CrPC include?
An application made under this section is predicated upon two conditions
Firstly, the fact that the respondent “neglects” to maintain his wife, who is unable to maintain herself, accenting that the applicant is fully dependent on the respondent as herself has no source of income. And,
Secondly, that the husband (respondent) has sufficient means to provide maintenance. This could be underscored by enumerating the respondent’s source(s) of income, assets and that he has no other liabilities if in case.
Further, following are the points that shall also be made in the application
That the applicant is legally married wife of the respondent: to claim maintenance from the respondent it is pertinent to establish that the applicant and the respondent are/ were a married couple, proof establishing the same shall be attached therein including marriage certificate, wedding Card etc, while not to be adhered meticulously.
As held in Chanmuniya v. Virendra Kumar Singh Kushwaha strict evidence of marriage should not be a pre-condition for maintenance, since the term ‘wife’ includes all such situations where a man and woman have been living together as a husband and wife for a reasonable period of time.
The cause of non-maintainability of the marriage shall also be provided, which encompasses cruelty, Demand/torture of wife for dowry, Impotency of husband etc.
Recent guidelines of the Hon’ble Supreme Court
Identifying various procedural lapses, uniformity and consistency in disposal of matter involving maintenance application the Supreme court laid various guidelines under Rajnesh v. Neha & Anr. In relation to; 1) factors affecting the quantum of maintenance, 2) interim maintenance application, 3) the date from which maintenance has to be awarded and 4) Affidavit of Disclosure, among others.
- various factors affecting the quantum of maintenance which needs to be mentioned to obtain a fair amount are as under;
- Parties’ ages and their occupations;
- The period of the marriage should be taken into account when calculating the amount of permanent maintenance to be paid;
- the expense for upbringing of minor children; and
- Serious disorder or health problems of a partner, child or children from a previous marriage, or a dependent relative, which calls for recurrent treatment expenditure may also be an important factor to consider when calculating maintenance.
These factors though not exhaustive, must be incorporated while drafting a maintenance application
- As stipulated under section 125 sub section 3, Interim maintenance may be granted during the pendency of the main maintenance petition. A reasoned order shall be passed within a period of maximum four to six months.
- Whilst the concerned court has been conferred discretion to grant maintenance either from the date of filling an application or from the date of the order passed the supreme court held that it would be suitable to grant maintenance from the date of filling an application in the interest of justice and fair play.
- A crucial segment of this guideline being an Affidavit of Disclosure to be filled by both the parties in a maintenance suit as a mandatory requirement, taking assistance of National legal Service Authority (NALSA), a comprehensive format for the affidavit was formulated. Hence, the court would be in a better position to make an objective assessment of a reasonable approximation of the amount to be awarded for maintenance in the interim stage. The said affidavit would disclose assets and liabilities of the party. Given the diverse demographic profile of our country encompassing rural, tribal, urban and metropolitan areas, three distinct formats of such affidavit have been formulated as per the need which has been attached as Enclosure I II and III in the said judgement. (https://main.sci.gov.in/supremecourt/2018/37875/37875_2018_39_1501_24602_Judgement_04-Nov-2020.pdf)
The recent guidelines formulated clears the ambiguity arounds various subject matters of a maintenance application, tackles delayed order and difference of opinion in High court orders. These guidelines would hence aid in realizing the object of providing speedy remedy and a well-reasoned judgement.
Jurisdiction
An application for maintenance will be lodged against any individual who is liable to pay in any of the following Districts where;
- he inhabits,
- or where he or his wife inhabits,
- or where he last resided with his wife, or as the case may be, with the mother of the illegitimate child.
Points to be included in an Interim application
The interim application must include limited pleadings along with an affidavit of discloser mandatorily. This application shall mainly attempt to highlight the fact that, in the absence of the respondent’s assistance the applicant is on the verge of penury, and since the disposal of main petition under section 125 CrPC is likely to take time, the applicant would suffer great hardship in meeting their day-to-day expenses.
Sample Maintenance Apllication
PETITION BY WIFE UNDER SECTION 125, CRPC FOR MAINTENANCE
IN THE COURT OF CHIEF METROPOLITAN MAGISTRATE, ______
MAINTENANCE PETITION NO. ______
IN THE MATTER OF:
Xyz, age: ____, W/o Abc, D/o _____,
Residing at __________
………………………. Petitioner
Versus
Abc, age: ______, S/o ____________,
Residing at ____________
……………………Respondent
APPLICATION FOR MONTHLY MAINTENANCE ALLOWANCES FOR THE WIFE UNDER SECTION 125 OF CRIMINAL PROCEDURE CODE, 1973
The above name petitioner respectfully shewoth as under:
- The Applicant is a legally married wife of the Respondent solemnized on _______ according to Hindu rites, and custom. Both of whom cohabited and lived as husband and wife for 5 years at ____________________. Attached herein under as Annexure 1 and 2 are the Certified copy of the extract from the concerned register and a copy of Wedding card.
- That after initial few months of marriage the Respondent led a life of drunkenness and habitual lewdness. The Respondent is a man of unusual temperament and constantly lost all sense of decorum and used abusive language.
- That the Applicant was subjected to cruelty at the hands of respondent without any provocations whatsoever, this made the petitioners life miserable by constant abuse and immense torture mentally and physically.
- That additionally the Respondent stopped maintaining and fulfilling basic demand of the Applicant including house hold expense. Ultimately the acts of Respondent leaving here with no other option, and compelled to leave here matrimonial house on _________as mention above to her paternal house.
- The Petitioner is in midst of a severe financial crisis and has become totally bankrupt, unable to maintain herself and her parents. As the Applicant doesn’t have any source of income neither does possess any technical qualification to be employed.
- That the Applicant along with his elderly parents have been subsisting on meagre pension amount of 5,000 of his farther, who is chronically ill having recurring medication expenses. The Applicant is in midst of a severe financial crisis and has become totally bankrupt, unable to provide herself nor her parents, and their survival is at stake. Further details of assets and liabilities of the Applicant are enlisted in the Affidavit of discloser attached herein below marked as Encloser A.
- That the Respondent is financially sound having multiple sources of income primarily earning a handsome amount of 1,00,000 from his telecommunication business and additionally from other sources. Having enough resources, the Respondent has yet overlooked his responsibility to provide for his lawfully wedded wife.
- That the above relation between the parties have deteriorated to an extent that there is no possibility of compromise between them.
- It is, therefore, prayed that the Hon’ble Court may graciously be pleased:
a. To direct the said Respondent to pay a sum of ___________per month to the said Petitioner as Monthly maintenance, or at such rate as this Hon’ble court may deem fit;
b. Pending the hearing and final disposal of this petition, the Respondent be directed to pay Rs. 10,000/- towards maintenance of the said Petitioner from the date of application, as instant interim relief;
c. to direct the respondent to also pay the said amount of _________in lump sum towards the costs of this proceeding, so as to pay the professional fees of the lawyer.
d. To pass such other and further reliefs as this Hon’ble Court may deem fit and proper.
VERIFICATION
I, Xyz, wife of abc, aged __ years, Indian Inhabitant, Occupation – Unemployed, residing at ______________, do solemnly affirm and declare that whatever is stated in the foregoing petition is true to the best of my knowledge and belief.
Petitioner
Solemnly affirmed at _______
On this date ______________
Identified by ________.
Advocate for the Petitioner
Sample interim maintenance application
APPLICATION FOR INTERIM MAINTENANCE UNDER SECTION 125 (3) CrPC
In the Court of Metropolitan Magistrate, ___________
IN THE MATTER OF:
Xyz, age: ____, W/o Abc, D/o _____,
Residing at __________
………………………. Petitioner
Versus
Abc, age: ______, S/o ____________,
Residing at ____________
……………………Respondent
Subject: Application under section 125 (3) of the code of Criminal Procedure with the prayer to grant interim maintenance during the pendency of the main petition
The above name petitioner respectfully shewoth as under:
- That the petitioner has lodged a petition under section 125 of the Code of Criminal Procedure for the grant of maintenance in addition to the current application before this learned court.
- That the grounds enlisted in the main petition may kindly be read as part and parcel of the present application, as they have not been reproduced in order to avoid repetition.
- That there is a prima facie case in favour of the petitioners and against the respondent based on the grounds set forth in the main petition. And, if interim maintenance is not granted the Applicant would face substantial difficulty in meeting their day-to-day expenditures, as already mentioned that the Applicant has become wholly dependent on her father’s meagre pension.
- That the Applicant having no independent source of income nor does she posses any technical qualification to be employed while the Respondent has sufficient source of income has not even cared to offer a single pie to the Applicant for her maintenance, as such the Respondent has breached the obligatory marital duties and obligations to maintain the petitioners.
- It is, therefore, most respectfully prayed that the application be granted and that the Respondent be ordered to pay the Applicant an amount of Rs_______ /- as an interim maintenance from the date of filing of the application till its decision on the merits.
- The respondent be also directed to pay litigation expenses of the present petition to the petitioners.
Applicant.
Through Counsel.
(_____________)
Advocate.
VERIFICATION
I, Xyz, wife of abc, aged __ years, Indian Inhabitant, Occupation – Unemployed, residing at ______________, do solemnly affirm and declare that whatever is stated in the foregoing petition is true to the best of my knowledge and belief.
Petitioner
Solemnly affirmed at _______
On this date ______________
Identified by ________.
Advocate for the Applicant.
Conclusion
The object of the concerned section is not to award punishment but to provide social justice, hence the content of such an application shall primarily focus on emphasizing the state of the applicant and their need, as specified in the aforesaid guidelines. These guidelines would ensure that the process of granting maintenance is carried out in a streamline manner, it would assist the concerned court in adjudicating the matter, and deciding the quantum of maintenance. It is commendable that the Hon’ble Supreme Court considered the vastly varied demographic structure of the country while formulating the Affidavit of Disclosure.
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