maintenance of wife, children & parents
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This article is written by Gauraw Kumar, a 2nd-year student of BVP-New Law College, Pune. In this article, he covers “Proceedings for maintenance of wives, children and parents” and tries to discuss all the Sections of the Code of Criminal Procedure, 1973 related to it. 

Introduction

The word ‘Maintenance’ is not defined in the Code of Criminal Procedure, 1973. Chapter IX of the Code of Criminal Procedure deals with provisions for maintenance of wives, children and parents. ‘Maintenance’ in general meaning is keeping something in good condition. ‘Maintenance’ in legal meaning is money (alimony) that someone must pay regularly to a former wife, husband or partner, especially when they have had children together. It is the duty of every person to maintain his wife, children and aged parents, who are not able to live on their own. 

Scope and objective of Proceedings

Scope and objectives of proceedings for maintenance of wives, children and parents are the following:

  • The proceedings are not punishable in nature. The main objective of Chapter IX of Cr.PC is not to punish a person who is not maintaining those whom he is bound to maintain.
  • The main objective is to prevent homelessness by way of procedure to provide a speedy remedy to those who are in pain.
  • It does not make any distinction between persons belonging to different religions or castes.
  • It has no relation to the personal laws of parties.

Order for maintenance of wives, children and parents

Section 125 of Cr.PC deals with “Order of maintenance of wives, children and parents”. In this Section, it is given the name of parties who are entitled to get maintenance, essential ingredients to claim and get maintenance and order of the first-class magistrate.

In the case of Mohd. Ahmed Khan v Shah Bano Begum, Supreme Court delivered a judgement favouring maintenance given to an aggrieved divorced Muslim woman.

Who can claim and get maintenance?

Section 125 of Cr.PC deals with “Order for maintenance of wives, children and parents”. According to Section 125(1), the following persons can claim and get maintenance:

  • Wife from his husband,
  • Legitimate or illegitimate minor child from his father,
  • Legitimate or illegitimate minor child (physical or mental abnormality) from his father, and
  • Father or mother from his son or daughter.

Wife

In the case of Chanmuniya v Virendra Singh, Supreme Court has defined ‘Wife’ and it includes even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time. Strict proof of marriage should not be a precondition of maintenance under Section 125 of the Cr.PC.

In the case of Smt. Yamunabai Anantrao Adhav v Ranantrao Shivram Adhav, the Supreme Court held that marriage of women in accordance with Hindu rites with a man having a living spouse is completely nullity in the eye of law and she is not entitled to benefit under Section 125 of the Cr.PC.

In the case of Sirajmohmedkhan Janmohamadkhan v Hafizunnisa Yasinkhan, the Supreme Court held that maintenance can be allowed to the wife when her husband is impotent.

A wife can claim and get maintenance from her husband in the following conditions:

  • 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.

Note: Muslim wife can also claim maintenance under Cr.PC though they have a separate Act (Muslim Women Protection of rights on Marriage Act) for them.

A wife can not claim and get maintenance from her husband in the following conditions:

  • Wife living in adultery, or
  • Refuses to live with husband without any valid reasons, or
  • Living separately by mutual consent.

Legitimate or illegitimate minor child

Son

‘Minor’ means a person who, under the provisions of Section 3 of the Indian Majority Act, 1875 is deemed not to have attained his majority i.e., above the age of 18 years.

Minor Son (Legitimate or Illegitimate) is entitled to get maintenance under Section 125 of Cr.PC.

Daughter

If Minor Daughter (Legitimate or Illegitimate) is unmarried, then she is entitled to get maintenance from her father and if she is married, then she is also entitled to get maintenance from his father but the magistrate has to be satisfied that her husband has not essential and sufficient means for the maintenance of his minor wife. In the case of Shahbuddin v State of UP, a minor daughter attaining majority during the pendency of the application for maintenance was held entitled to maintenance up to the date of majority.

Legitimate or illegitimate abnormal child who has attained majority

If any major child (Legitimate or Illegitimate) is abnormal (mentally or physically unfit), then the father of that child has to maintain him and he can claim maintenance on this ground of abnormality.

Father or mother

  • Natural father and mother can claim maintenance.
  • Mother includes adoptive mother, she can claim maintenance from adoptive son.
  • Father can claim maintenance, it is a statutory obligation, this claim cannot be defeated by pleading that the father failed to fulfil his parental obligation.
  • A childless stepmother can claim maintenance.

In the case of Pandurang Bhaurao Dabhade v Baburao Bhaurao Dabhade, Bombay High Court has held that the father or mother can claim maintenance under Section 125(1)(d) if he or she is unable to maintain himself or herself. But it is also important that if parents claim maintenance to their children, children must have sufficient means to maintain their parents and yet neglects or refuses to maintain the father or mother.

Essential conditions for granting maintenance

There are some essential conditions which should be fulfilled for claiming and granting maintenance:

  1. Sufficient means for maintenance are available.
  2. Neglect or refusal to maintain after the demand for maintenance.
  3. The person claiming maintenance must be unable to maintain himself/herself.
  4. Quantum of maintenance depends on the standard of living.

Sufficient means to maintain the person

If any person has sufficient means for maintenance, then it is his duty to maintain his wives, children and parents. If sufficient means are not available, then it will be a perfect and valid defence for people who are legally bound for maintenance of wife, children and parents.

Neglect or refusal to maintain

Any person neglects or refuses to maintain his wives, children and parents in malafide intention or in any type of egoistic behaviour on the demand for maintenance by them.

The person who claims maintenance must be unable to maintain himself/herself

It is a very important condition for granting maintenance that a person who is claiming maintenance must be unable to maintain himself/herself. For example- If a wife is earning well, then she can not claim maintenance under this Section. In the case of Abdulmunaf v Salima, it was held that the wife who is hale and healthy and is sufficiently educated to earn for herself but refuses to earn from own and claim maintenance from her husband will be entitled to claim maintenance but that her refusal to earn under the circumstances would disentitle her to get complete amount of maintenance.

Special provision for maintenance of minor married girl

If the husband of a minor daughter does not have sufficient means to maintain her, then it is the duty of her father to give maintenance. In these circumstances, married minor daughter is entitled to get maintenance from the father. In the case of Alok Banerjee v Atoshi Banerjee, a person who is unable to maintain themselves.

Quantum of maintenance

Quantum of maintenance means the amount of maintenance. Quantum of maintenance depends on the standard of living. For example- If any issues raised in a rich family, then demand for maintenance will be more as compared to poor family according to their standard of living in a prior life.

In simple words, the Court should also make sure that whether maintenance granted is justified according to the status of a family or not?

Jurisdiction of Magistrates to deal with maintenance proceedings

According to Section 125(1)(d), If any person neglects or refuses to maintain his wife, children or parents, then a Magistrate of the First Class can order such person to make a monthly allowance for the maintenance of his wife, children or parents, at such monthly rate as such Magistrate thinks fit, and to pay the same to such person as the direction of magistrate.

If a minor female child is unmarried, then the magistrate can order to make such allowance, until she attains her majority. In case a minor child is married and the magistrate is satisfied that the husband of such minor female child is not possessed of sufficient means, then the magistrate can order father of the minor female child to make such an allowance for maintenance.
When a proceeding is pending regarding monthly allowance for maintenance, the Magistrate can order such person to make a monthly allowance for the interim maintenance of his wife, children or parents and the expenses of such proceeding which the Magistrate considers reasonable.
An application for the monthly allowance for the interim maintenance and expenses of proceeding should be disposed within sixty days from the date of the notice of the application to such person.

According to Section 125(2), If a court order for such allowance for maintenance or interim maintenance and expenses of the proceeding, then it should be payable from the date of the order or if so ordered, then it shall be payable from the date of application for maintenance and expenses of proceedings.
According to Section 125(3), If any person fails to comply with the order without sufficient cause, then Magistrate can order to issue a warrant for levying the amount with fines. If the person again fails after the execution of the warrant, then the punishment of imprisonment for a term which may extend to one month or until payment of sooner made is awarded.

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Procedure for maintenance

Section 126 of Cr.PC deals with “Procedure for maintenance”. This Section says the following:

  • Proceeding under Section 125 may be taken in the following district:
  1. Where he is, or
  2. Where he or his wife resides, or
  3. Where he last resided with his wife or mother of an illegitimate child.
  • Evidence to be taken in the presence of a person against whom maintenance is to be ordered.
  • If a person is wilfully avoiding summons, then ex-parte evidence is taken in that case.

Alteration in allowance

Alteration in allowance means an order to increase, decrease or remove/cancel the allowance which was ordered by the Magistrate under Section 125.

According to Section 127(1), if a magistrate ordered to give allowance for maintenance under Section 125 according to the conditions of parties at that time, but if the present conditions of parties have changed, then he can also order to alter the allowance. For example- 

  1. Husband had a well-settled job and means for maintenance, on this basis the Court has ordered him to maintain his wife and to allowance under Section 125. But in the present condition, the husband has no job and means for maintenance. Then, the Court can alter the allowance and can reduce the amount of allowance.
  2. If a wife was not having any job or she was unable to maintain herself and she got the order of allowance under Section 125. But after some months, she is well settled and she has the means to maintain herself. In this case, the Court can order to remove or cancel allowance.

According to Section 127(2), Magistrate shall cancel or revoke any order given under Section 125 by him, if it appears that it should be cancelled in consequences of any decision of the competent Civil Court. For example- If Magistrate has ordered to give allowance to wife after divorce but Civil Court has ordered to live together. Then, Magistrate has to revoke his order which was given under Section 125.

According to Section 127(3), where an order has been made in favour of women under Section 125, then the magistrate can cancel the order in the following case:

  1. If a woman is remarried after divorce.
  2. If a woman has taken allowance under any personal laws after divorce.
  3. If a woman has voluntary leave her right to maintenance.

According to Section 127(4), the Civil Court shall take into account the sum which has been paid to such person as monthly allowance for maintenance and interim maintenance under Section 125 at the time of making any decree for the recovery of any maintenance or dowry.

Enforcement of order of maintenance

Section 128 deals with “Enforcement of order of maintenance”. According to this Section, the following are the conditions for enforcement of the order of maintenance:

  • Copy of order under Section 125 is given to that person free of cost in whose favour it is made. In case the order is in favour of children, then the copy of the order will be given to the guardian of children.
  • If any Magistrate has made an order under Section 125, then any Magistrate of India can enforce this order where that person lives who have to give maintenance.
  • The Magistrate has to satisfy two conditions before enforcement of order:
  1. Identity of parties, and
  2. Proof of non-payment of allowances.

Conclusion

Chapter IX of the Code of Criminal Procedure is essential for the protection of the rights of the divorced wife, children and aged parents. It is made to protect them from unusual livelihood. Maintenance is the duty of everyone who has sufficient means for the same. In this chapter of Cr.PC, there are various provisions given related to maintenance like who is entitled to maintenance, essential conditions for granting maintenance, Procedure of maintenance, Alteration of the previous order, Enforcement of order of maintenance etc.

Reference

  • Bare Act of Cr.PC

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