Maintenance under CrPC – All about it

Suryansh Kumar, a 3rd-year law student from HNLU Raipur Chattisgarh India has written this article. It explains all about Maintenance under Crpc and other laws in India for wives, parents and children.

INTRODUCTION

The concept of “maintenance” in India is covered both under Section 125 of the Code of Criminal Procedure, 1973 (Crpc) and the personal laws. This concept further stems from Article 15(3) reinforced by Article 39 of the Constitution of India, 1950 (the ‘Constitution’). Under Indian law, the term “maintenance” includes an entitlement to food, clothing and shelter, being typically available to the wife, children and parents.

In matrimonial disputes, maintenance is one of the common issues. Infact in almost every matrimonial case, maintenance is being sought by the wives, irrespective of their qualifications and earning status. Generally, maintenance is being sought by the wives as they are substantially dependent upon their husbands for their financial needs and wants, if not for the other things. Moreover, wives and in some cases husbands try to channelize the provision of maintenance in order to put pressure on the other party.

The provisions of maintenance under Crpc (Code of Criminal Procedure) are applicable to persons belonging to all religions and have no relationship with the personal laws of the parties.

Although Criminal Procedure Code is a procedural enactment, but it also confers some substantive rights, the right of maintenance being one of the most important of such rights. Legal provisions regarding Order for maintenance of wives and children are mentioned under Chapter IX Section 125 to 128 of the Code of Criminal Procedure, 1973 (Crpc). Section l25 of the Code gives effect to the natural and fundamental duty of a man to maintain his wife, children and parents so long as they are unable to maintain themselves. This provision is a measure of social justice and was specially enacted to protect women and children.

CONCEPT OF MAINTENANCE

The Right to maintenance comes from the concept of an Undivided family, where the head of such family is bound to maintain the person who is not financially independent to make a proper living and capable of enjoying the basic necessities of life that he or she is reasonably expected to enjoy. The whole concept of maintenance was introduced to make the living of such a person possible and independent. Under Indian law, the term ‘maintenance’ includes an entitlement to food, clothing and shelter, being typically available to the wife, children and parents.[1]

Maintenance has been a concern not just for the weaker sections but of society as a whole. When one despite having the sufficient means fails to support his dependants then such concerned persons are forced to fall upon the state for assistance or else take a carrier detested or prohibited by society which goes against the interest of the society. The object of maintenance is to prevent immorality and destitution and ameliorate the economic condition of women and children.

The persons who are qualified for maintenance under the Hindu Adoptions and Maintenance Act (HAMA), 1956 are wives, widowed daughter-in-law, children, aged parents and dependants as enumerated in Section 21 of the Act. Whereas, under Muslim law, the persons entitled to maintenance are wife, young children, the necessitous parents, and other necessitous relations within the prohibited degrees. The Muslim Law of maintenance is based on the Muslim personal laws and the law enactments such as the Indian Majority Act, 1875, the Criminal Procedure code 1973, Muslim Women (Protection of Rights on Divorce) Act, 1986.

CHAPTER 1: MAINTENANCE UNDER HINDU LAW

Many Hindu sages of Ancient India including Manu and Brihaspati were of the opinion that maintenance of certain persons is a personal obligation. “A man may give what remains after the food and clothing of family. The one (giver) who leaves his family unfed may taste honey at first but afterwards finds it poison.”

Mitakshara, which is one of the most important and oldest school of Hindu Law says that “Where there may be no property but what has been self- acquired, the only persons whose maintenance out of such property is imperative, are aged parents, wife and minor children.” [4]

The provisions of maintenance under Hindu law finds its roots in (a) the Shastric Hindu personal laws which has its underlying foundations in the Dharmashastra. With the passage of time the need for codification of Hindu Law with respect to marriage, adoption, succession and maintenance was felt and thus two principle acts- (1) The Hindu Marriage Act and (2) The Hindu Adoptions and Maintenance Act, 1956 were promulgated.

However, Modem sources of Hindu Law consists of three main sources such as (i) Equity, Justice and good conscience (ii) Precedents (iii) Legislation.

Section 3(b) of the Hindu Adoptions and Maintenance Act, 19565 defines maintenance. This section says “Maintenance include- (i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment, (ii) in the case of an unmarried daughter, also the reasonable expenses of an incident to her marriage, (c) “minor” means a person who has not completed his or her age of eighteen years.” In State of Haryana v. Smt. Santra,[5] it was held that it is a liability created by Hindu Law and arises out of jural relation of the parties. Section18 of the HAMA, 1956 deals with the maintenance and separate residence of wife.

Interim Maintenance:

The interim maintenance is payable from the date of presentation of the petition till the date of dismissal of the suit or passing of the decree to meet the immediate needs of the petitioners. In Purusottam Mahakud v. Smt. Annapurna Mahakud[6] Supreme Court held that the right to

claim interim maintenance in a suit is a substantive right under section 18 of the Act. Since no form is prescribed to enforce the said right civil court in exercise of its inherent power can grant interim maintenance.

 Maintenance Pendente lite:

Pendente lite means depending on the outcome of the litigation. The rule is that after considering the financial status of the husband during the litigation process, the wife is awarded maintenance pendente lite despite the fact that there is no specified provision mentioned in the act for the grant of pendente lite. Divorced woman can claim maintenance so long as she continues to enjoy the status of wife. The husband of the woman who divorced her has a statutory duty to maintain her if she can not maintain herself and, she remains unmarried.[7] The obligation to maintain the wife remains on the husband even though the wife might be living separately. It is settled law that a court empowered to grant a substantive relief is competent to award it on interim basis as well, even though there is no express provision in the statute to grant it.

Maintenance to widow:

Widow has no charge on separate property of husband. Neither section 18 relating to maintenance of wife nor section 21 dealing with widow provides for any charge for maintenance on separate property of husband.[8]

Right of Separate residence:

The wife is entitled to live separately without forfeiting her right to maintenance, if her husband is guilty of desertion, if he subjects the women to cruelty, if he is suffering from a leprosy, if he has any other wife living, keeps a concubine in the house where his wife resides, if he has ceased to be a Hindu, or if there is any other cause justifying her to live separately under Section 18(2) of the HAMA.

The wife had been living alone and all the children had been brought up by her without any assistance and help from the husband and there was a clear case of desertion, the wife was entitled to separate residence and maintenance. The claim for maintenance by a wife can also be sustained under clause (g) even on a ground covered by one or other clauses i.e. clause (a) to (f) of section 18(2) substantially but not fully. Merely because the wife fails to strictly prove the specific grounds urged by her, she cannot be denied relief.[9]

In Komalam Amma v. Kumara Pillai Raghavan Pillai,[10] the Supreme Court ruled that maintenance necessarily encompasses a provision for residence and therefore ordered that the woman be provided with a residential facility similar to that which she had been accustomed in the past.

Maintenance of widowed daughter in law:

Section 19 of the HAMA, provides that a widowed daughter-in-law is entitled to be maintained by her father–in –law. In Raj Kishore Mishra v.Meena Mishra,[11] it was held that where from the estate of the parents, the daughter-in-law can maintain herself; question of father-in-law does not arise. Section 20 of HAMA obligates the head of the Hindu Family to maintain the children and the aged and the infirm parents. Here not only the father but the mother is also obligated to maintain them. Section 22 of Hama obligates the head of the Hindu Family to maintain his dependants which is defined under section 21.

CHAPTER 2: MAINTENANCE UNDER CRPC

The provisions under the Code of Criminal Procedure, 1973 bind a person to perform the moral obligation which he is duty bound to society in respect of his wife, children and parents. The duty is by far legal and binding upon the person.[12] Provisions of CRPC are also very much secular, harmless and all-pervading in nature and are applicable to all communities in India, irrespective of religion, caste and creed. Moreover,The provisions of Section, 125, CRPC are enforceable whatever may be the personal law by means of which the respective persons concerned are guided and governed.[13]

In India, irrespective of religion, caste and creed. The provisions of Section, 125, CRPC are enforceable whatever may be the personal law by means of which the respective persons concerned are guided and governed.  Maintenance can be claimed under the respective personal laws of people following different faiths and proceedings under such personal laws are civil in nature, but proceedings initiated under Section 125 of The CRPC however, are of a summary nature and apply to everyone regardless of caste, creed or religion.[15]

It gives effect to the basic fundamental duty of a male person to maintain his wife, children and aged inform parents having no income of themselves. The basic idea behind the position of maintenance under Section 125, of the CRPC is that no wife, minor children, old parents should not devoid of and succumb to utter pressure of wants so that they may have to be tempted to take recourse to crimes etc. Provision under Section 125 of the CRPC authorises a Magistrate of the First Class to take summary action for prevention of poverty.

SECTION 125 OF CRPC TALKS ABOUT MAINTENANCE

Order for maintenance of wives, children and parents:

(1) If any person having sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means. Explanation.- For the purposes of this Chapter,-

• ” minor” means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875 ); is deemed not to have attained his majority;
• ” wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

(2) Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance.

(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month’ s allowances remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due: Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such

Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. Explanation.- If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’ s refusal to live with him.

(4) No Wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.

(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.

EXPLANATION OF THE SECTION 125 CrPC

Section 125 of the Crpc (Criminal Procedure Code) provides for the maintenance to the wife, child, and parents. The court after the party has invoked Section 125 of the Code, may order the respondent, that is the husband, to maintain the wife who is unable to maintain herself by providing monthly maintenance to her. However, there is an exception in the provision. For the purpose of providing maintenance to the wife, the husband has to be sufficient enough to support his wife after the separation and at the same time, the wife must not be living in adultery or living separately with her husband without any sufficient reasons.

Even if they are living separately in mutual consent, then also the wife will not be entitled to any sort of maintenance. Whenever the judgment is passed in favor of the wife, the court has to make sure that the husband has sufficient means to provide maintenance to the wife. The court also needs to make sure that the wife after the separation does not have enough money to maintain herself.

Under Section 125 of the Crpc, the provision is available for interim maintenance which means that during the pendency of an application in the court of law, the order may be passed by the magistrate directing the husband to pay the monthly allowances to the wife. However, the magistrate has the right to alter the amount of the maintenance to be paid, if he thinks that there is a change in the circumstances of the individual who has been paying or receiving the monthly allowances.

This was laid down in the case of Vikas v. State of Uttar Pradesh[16]. All such applications of maintenance can be filed in any district where the person who is liable to pay resides or where the wife resides or where the person last resided with the wife or with the mother or with the illegitimate child. The purpose of Section 125 of CrPC is to achieve a social purpose in society.

It is a natural and fundamental duty of every person to maintain his wife, children and old age parents if they are unable to maintain themselves or they have no means or position to maintain themselves. The provisions of the Code invoke a man to realise his natural duty and responsibility as a father and it serve as a special purpose to avoid vagrancy. The sole purpose and object of these provisions is to enable the discarded wife, helpless and deserted children’s and destitute parents to secure the much-needed relief because without these provisions of law the perpetrator will escape the responsibility causing a burden to his wife and children and indirectly the compels them to become vulnerable to various crimes.

At the time of enactment of this code section 125 is intended to be applicable to all irrespective of their personal Laws although maintenance is a Civil remedy, yet it has been made a part of this Code to have a quick remedy and proceedings and section 125 is not a trail as non-payment of maintenance is not a criminal offence. Right to seek maintenance Under Section 125 of the CrPC is an independent right. It should be kept in view that the provision relating to maintenance under any personal law is distinct and separate. There is no conflict between the two provisions.[17]

OBJECT OF SECTION 125[18]

The proceedings under these sections are not punitive in nature. The object is not to punish a person for neglect to maintain those whom he is bound to maintain but to prevent vagrancy by enforcing liability by way of summary procedure to provide a speedy remedy to those who are in distress.

Section 125 of CrPC is a measure of social justice, falling within the constitutional sweep of article 15 (3) of the Constitution of India, intended to protect the weaker sections like women and children which have explained in the case of Captain Ramesh Chander Laushal v veena Kaushal[19]. The section has been described as a secular safeguard irrespective of the personal laws of the parties.[20] The object of the section is to compel a man to perform the moral obligation which he owes to society, in respect of his wife and children so that they are not left beggared and destitute on the scrapheap and crime for their subsistence. The jurisdiction of the magistrate is preventive and not remedial. Certainly, it is not punitive.

The object of the section is to prevent destitution and vagrancy. The section provides only a speedy remedy against starvation of a deserted wife or child. It is a summary procedure which does not cover entirely the same grounds as the civil liability of a husband, father or son under his personal law to maintain in his wife, child or parents. When substantial issue of civil law is raised, the remedy lies only in civil courts.[21] overall the true object of the section 125 of CrPc is to ensure that a wife, minor children or helpless parents do not suffer in penury and It also aims to provide a speedy remedy to the women, children and destitute parents who are in distress, the court said while laying emphasis upon the summary nature of the court proceedings under the section 125 of the CrPC.

PURPOSE OF SECTION 125

The purpose of enacting section 125 of the code is not recognized or created as a right as such in favour of a wife. It is intended to ameliorate social problem which concerns destitution or vagrancy. “The primary object of the section is to prevent starvation and vagrancy of person and enable a discarded wife and a helpless child to get the much needed and urgent relief in one or the other form that is convenient to them’’.

ORIGIN AND DEVELOPMENT OF PROVISIONS OF MAINTENANCE

1. Concept of maintenance: The law of maintenance is varied and extensive. In India, different communities have different religions of their own and their maintenance laws are also different with certain common features. Generally, maintenance means maintenance of wife, children, parents, grandparents, grandchildren and in some cases maintenance of poor relations (Muslims).
2. In Mulla’s book, Mahomedan Law, in Chapter XIX, Maintenance has been defined to include “food, raiment and lodging”. This definition of “maintenance” is not exhaustive. The word “maintenance” includes other necessary expenses for mental and physical wellbeing of a minor, according to his status in society. Educational expenses were included in the definition.
3. Chapter IX of the Code of Criminal Procedure, 1973 (Crpc) provides for maintenance of wives, children and parents. The provision of maintenance is a factor for social justice, and specially formed to protect women, children, old and infirm parents and comes under the constitutional1 area of Article 15 (3) read with Article 39 of the Constitution of India.
4. Generally speaking, Hindu Marriage Act, 1955 does not extend to a person who is a Buddhist, Jain or Sikh by religion. In a similar way, according to the provisions of “The Hindu Adoptions and Maintenance Act, 1956”, the said act of 1956 applies to any person who is a Buddhist, Jain or Sikh by religion and so on (Ref. Sec 2(b)). This Act of 1956, however does not extend to any person who is a Muslim, Christian, Parsi or Jew by religion (Ref- Section 2(c) of 1956 Act). In case of material considerations, it would be revealed that provisions of maintenance in chapter IX of the Code of Criminal Procedure, 1973 is basically secular in nature and provisions of the said chapter is applicable to all sections of communities in India, whatever may be their caste or religion i.e., personal laws. It must however be very emphatically stated that personal laws is relevant for coming at a decision regarding the validity of the marriage, etc and such consideration can not be totally excluded from due consideration at the relevant time.

It can be said that such maintenance laws in CrPC, 1973 have their roots in the vagrancy laws in England. The provisions of maintenance laws of Hindu Personal law and Muslim Personal law have their original roots in the Hindu Dharmashastras and in the holy Koran. The Christian personal laws have root in doctrines of the holy Bible.

WHO ALL CAN CLAIM FOR THE MAINTENANCE OF WIVES, CHILDREN AND PARENT?- CRPC

Section 125 which is the pivotal section of this Chapter, provides that following person are entitled to get maintenance if any person having sufficient means neglects/ refuses to maintain–

a) His wife, unable to maintain herself, or

 b) His legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

c) His legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

d) His father or mother, unable to maintain himself or herself.

A Magistrate of the First Class may pass an order against such a person, ordering him to make a monthly allowance for the maintenance of such child, father or mother, as the case may be, at such monthly rate as such Magistrate thinks fit. In the case of a minor female child who is married, if the Magistrate is satisfied that the husband of such a minor female is not possessed of sufficient means, an order can be made against the father of the child to make such allowance until she attains the age of majority.

Order for Maintenance under sec 125 of CRPC:

1. Wife:

As per Section 125(l) (a) of the Code, if any person having sufficient means neglects or refuses to maintain his wife, unable to maintain herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife at such monthly rate, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct.

The term ‘wife’ appearing in Section 125(1) means only a legally wedded wife and therefore a marriage prove illegal cannot give a wife any right to get maintenance[22]. The legality of the marriage would be governed by the personal laws applicable to the parties. If the fact of legally valid marriage is disputed, the applicant will have to prove marriage. According to explanation (b) to Section 125(1), the term ‘wife’ includes even a divorced wife but has not remarried. A divorced wife cannot exist unless she was a legally wedded wife.

Under the law the burden is placed in the first place upon the wife to show that the means of her husband are sufficient. There is no dispute that the appellant has the requisite means. But there is an inseparable condition which has also to be satisfied that the wife was unable to maintain herself.

• Child:

According to Section 125(1)(b) of the Code of Criminal Procedure, if any person having sufficient means neglects or refuses to maintain his legitimate or illegitimate minor child, whether married or not, unable to maintain itself or as per Section 125(1)(c) of the Code, his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of such child, at such monthly rate, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time  direct.

A child, whether legitimate or illegitimate, whether married or unmarried can seek maintenance from his/her parents.  However, where the child is suffering from physical or mental abnormality, he/she can claim maintenance even after attaining majority if such person is unable to maintain herself/himself. A minor married girl can claim maintenance either from her husband or her father or both[23]. According to first proviso appended with the section if the husband of the minor married female child is not in possession of sufficient means, the father of such female child will be required to make allowance for her maintenance. However a married daughter who has attained the age of majority is not entitled to claim allowance from her father as she would then come under the category of wife and shall seek maintenance from her husband.[24]

• His Fathers Or Mothers

Both the mother and the dad, regardless of whether normal or assenting, can guarantee upkeep from any at least one of their youngsters. Girls are additionally obligated to pay support to their mom and father. A step-mother can guarantee support and claim maintenance just in the event that she is widow and doesn’t have characteristic conceived girls or children.

In the case of Pandurang Bhaurao Pabhade V. Baburao Dabhade,[25] 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 mean to maintain their parents and yet neglects or refuse to maintain the father or mother.

• Live-in relationship

Domestic relationship in the nature of marriage. In the case of D. Veluswamy v D. Patchaiammal,[26] the Supreme Court observed that for a relationship in the nature of marriage:

1. The couple must hold themselves out to society as being akin to spouses.
2. They should be of legal age to marry.
3. They must be otherwise qualified to enter into legal marriage including being unmarried.
4. They must have lived together as per their will and held themselves out to the world as being a kin to spouses for a significant period of time. Further Supreme Court ruled that not all Live-In- Relationship will amount to a relationship in the nature of marriage to get the benefit the conditions mentioned by the court must be satisfied and this has to be proved by evidence.
5. 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 her 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 pendency of the application for maintenance was held entitled to maintenance up to the date of majority.

INTERIM MAINTENANCE UNDER SECTION 125 OF CRPC:[27]

As per second proviso to Section 125(1) of the Code of Criminal Procedure, during the pendency of the proceeding regarding monthly allowance for the maintenance under Section 125(1) of the Code, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct.[28]

ESSENTIAL CONDITIONS FOR GRANTING MAINTENANCE Under Crpc

Sufficient means to maintain:

According to Section 125(1) of the Crpc ( Code of Criminal Procedure ), the person from whom maintenance is claimed must have sufficient means to maintain the person or persons claiming maintenance. If a man is healthy and able-bodied, he must be held to possess the means such as real property or definite employment.

Neglect or refusal to maintain: 

The person from whom maintenance is claimed must have neglected or refused to maintain the person or persons entitled to claim maintenance.

Person claiming maintenance must be unable to maintain himself or herself:

The person claiming maintenance must be unable to maintain himself or herself. In Abdulmunaf v. Salima,[29] it was held that the wife who is hale and healthy and is adequately educated to earn for herself but refuses to earn and claims maintenance from her husband is entitled to claim maintenance but that her refusal to earn under the circumstances would disentitle her to get the full amount of maintenance.

ESSENTIAL CONDITION FOR INVOKING SECTION 125

The right of a wife for maintenance is not an absolute right under section 125 Cr. P.C, the very same is circumscribed by the fact that she is unable to keep up with herself and further the spouse having adequate methods ignored or wouldn’t look after her. No doubt, there is a clear distinction between the locus standing or competence to file a petition for maintenance under section 125 of the Crpc by any of the persons illustrated in the section and their being entitled on merits to particular amounts of maintenance there under.

However, the premise for both is essentially the existence or otherwise of their separate income or means of support besides other factors stipulated under this section. The legitimacy of the marriage with the end goal of outline continuing under segment 125 Cr. P.C is to be resolved based on the proof welcomed on record by the parties.

The standard of proof in the marriage in such proceedings is not as strict as is required in the trial of offence under section 494 IPC. If the claimant in the proceeding under section 125 of the Crpc succeed in showing that she and the respondent have lived together as husband and wife, the court can presume that they are legally wedded spouses, and in such a situation, the party who denies the marital status can revert the presumption.

That the contention is not proved by leading necessary evidence. Once it is admitted that the marriage procedure was followed then it is not necessary to further probe into whether the set procedure was complete as per the Hindu rights in. the proceeding under section 125Crpc.

when can maintenance be cancelled against wife

Section 125 CRPC also lays down certain provisions in which the spouse is not eligible to the maintenance amount.  The provisions are as follows if:

1. the wife is living in adultery
2. the wife refuses to live with her husband without sufficient means
3. by mutual consent they have decided to live separately
4. the competent Civil court announces a decision
5. the wife remarries to another man after the divorce, then the maintenance amount is cancelled with effect from the date of marriage.

SECTION 126 PROCEDURE: PERSONAL PRESENCE

Section 126(2) of the code provides as to under what circumstances the evidence can be recorded when the non-applicant is not personally present. With the permission of the court, the personal presence (including recording of evidence) of the court will proceed in the presence of with in sub section (2) of section 126 of the code shows to some extent that the non-applicant is bound to remain present on every hearing of the case (unless his presence is dispensed with) and it is this which may go to show that the proceeding under section 125 of the code to some extent, are of quasi-judicial nature.

It has been held in Arun Kumar V. Chandan Bai,[30] that if the non-applicant is absent, but his counsel is present, evidence can be recorded in the presence of the counsel. Such recording of the evidence is quite legal.

JURISDICTION OF SECTION 125 OF CRPC

In a proceeding under section 126 of the code of Court has jurisdiction to entertain the application where the applicant resides. The question regarding the jurisdiction of the Court to entertain the petition of the wife and daughter for maintenance in Kumuthan V. Kamnappaz[31] it was held that the husband was living within the jurisdiction of the court Trichy, the court at Trichy had jurisdiction to entertain the maintenance petition.

The Supreme Court observed that the court below have failed to take note of the provisions contained 126 of Cr.P.C. Under the said section it is permissible for proceeding under section 125 to be taken against a person in any district:

1. where he is, or
2. where he or his wife re-sides or
3. where he last resided with his wife or mother of an illegitimate child.
4. Proof to be taken within the sight of an individual against whom support is to be requested.
5.  If an individual is readily keeping away from summons, at that point ex-parte proof is taken all things considered.

Also, recently Hon’ble Supreme Court in the case of Rajnesh V. Neha, (2020 SCC Online SC 903).  The bench of Justice Indu Malhotra and R. Subhash Reddy, JJ has framed guidelines on the issue of maintenance of wife, covering overlapping jurisdiction under different enactments for payment of maintenance, payment of Interim Maintenance, the criteria for determining the quantum of maintenance, the date from which maintenance is to be awarded, and enforcement of orders of maintenance.

The directions came in a case which revealed that the application for interim maintenance un- der Section 125 Cr.P.C. has remained pending before the Courts for seven years now, and there have been difficulties encountered in the enforcement of orders passed by the Courts, as the wife was constrained to move successive applications for enforcement from time to time.

JUDICIAL PRECEDENTS

Shamima Farooqui v Shahid Khan (CRIMINAL APPEAL NOS.564-565 OF 2015)

 This is a case from Lucknow where a lady named Shamima Farooqui was ill treated by her husband named Shahid Khan, who later got remarried. She filed an application in the year 1998 but was taken up in the year 2012. Her husband Khan was a Nayak in the Army who earned Rs 17,654 per month, including some perks. Rs 2000/- was granted to her initially by family court which later was increased to Rs 4000 after discovering that she had no means other than this to support her life.

However the High Court reduced it to Rs. 2000/- per month, taking note of the fact that the husband had retired from his job of Nayak in the Army in the year 2012. This drew the Apex Court‟s ire which declared that Rs 2000 were not sufficient do it was again increased to Rs. 4000. In this case, the bench consisting of Justice Dipak Misra and PC Pant pronounced that husband who has sufficient means and earns stable income that is enough to support himself is under the legal obligation to pay the maintenance amount to his wife.

Mohd. Ahmed Khan v. Shah Bano Begum (AIR 1985 SC 945)

 Ms. Shah Bano Begum was married to a lawyer named Mr. Mohd. Ahmed Khan. They lived together for 43 years and had five children. In 1978, Mr. Khan threw Ms. Begum out of the shared household and Ms. Begum applied for maintenance from Mr. Khan under Section 125 of the Criminal Procedure Code, 1973 (Cr.P.C, 1973). Pending her application, Mr. Khan dissolved the marriage by pronouncing a triple talaq (divorce on the triple utterance of the word “talaq” by a Muslim husband) and paid Ms. Begum 3000 rupees as mahr (money/valuable property promised to a Muslim woman for her financial security under the marriage contract) and a further sum of maintenance for the iddat period (a period of 3 months that a Muslim woman has to observe before she can remarry after her divorce).

Mr. Khan argued that Ms. Begum’s claim for maintenance should be dismissed as Ms. Begum had received the amount due to her on divorce under the Muslim personal law. The lower court granted Ms. Begum’s claim for maintenance, which was set at 179 rupees per month by the High Court in a revision application. Mr. Khan appealed to the Supreme Court in 1985 and the Court held that a payment made pursuant to personal laws cannot absolve a husband of his obligation to pay fair and reasonable maintenance under Section 125 Cr.P.C, 1973 and a husband can be liable to pay maintenance beyond the iddat period.

VARIOUS ACTS FOR MAINTENANCE OF WIVES, CHILDREN, AND PARENTS

Laws applicable to the matters of maintenance: Various laws applicable to the matters of maintenance to wives, parents, sons, daughters and other dependants and the Acts covered within the jurisdiction of the Family Courts established under the provisions of the Family Courts Act, 1984 are as under :

• Code of Criminal Procedure, 1973 (Sections 125 to 128)
  • Family Courts Act, 1984
  • Hindu Adoptions And Maintenance Act, 1956
  • Protection of Women From Domestic Violence Act, 2005
  • Protection of Women From Domestic Violence Rules, 2006
  • Hindu Marriage Act, 1955
  • Muslim Women (Protection of Rights on Divorce) Act, 1986
  • Muslim Women (Protection of Rights on Divorce) Rules, 1986
  • Maintenance And Welfare of Parents And Senior Citizens Act, 2007
  • Maintenance Orders Enforcement Act, 1921
  • Special Marriage Act, 1954
  • Divorce Act, 1869
  • Parsi Marriage And Divorce Act, 1936
  • Dissolution of Muslim Marriage Act, 1939
  • Hindu Minority And Guardianship Act, 1956
  • Guardians And Wards Act, 1890
  • Christian Marriage Act, 1872
  • Foreign Marriage Act, 1969
  • Muslim Women Personal Law (Shariat) Application Act, 1937
  • Prohibition of Child Marriage Act, 2006
  • Anand Marriage Act, 1909
  • Dowry Prohibition Act, 1961
  • Marriage Validation Act, 1892
  • Converts Marriage Dissolution Act, 1866
  • Judicial Pronouncements of Courts

CHAPTER 3: DIFFERENCE B/W SECTION 125 AND SECTION 24 HINDU MARRIAGE ACT

The right to maintenance under section 125 of the CRPC is a statutory right which the Indian Legislature has provided, accepted and recognised irrespective of any religion of the parties concerned, whether a Hindu or a Muslim etc. but the provisions of Sections 18 and 20 of the Hindu Adoptions and Maintenance Act, 1956 are applicable exclusively for the Hindus alone.

Section 125, Cr. P.C., 1973 is meant for a social purpose to provide a summary machine for serving a moral obligation of a man to his wife, children and old parents so that they may not die due to utter poverty as they are unable to maintain themselves. The aim of this section is to safeguard the interests of an orderly society. The provisions of the Hindu Adoptions and Maintenance Act, 1956 are to provide the rights of Hindu wives, children and old and infirm parents or even dependents to be maintained, under the Hindu personal law.

CHAPTER 4: PROBLEMS RELATED TO MAINTENANCE LAWS IN INDIA

 There are different maintenance laws in India among so many communities in India. The real problem is how can there be recommendation and suggestions for uniform laws of maintenance through India under a common umbrella and which one or more states should act as the role model. The bulk of Indian population in India consists of Hindus and Muslim. Both of them have laws of Maintenance both shastric and modern.

There are quite a number of maintenance laws in respect of communities in India.Moreover, maintenance is a measure of social justice. Also, maintenance laws in India are not complete, substantial enough and exhaustive in nature. Brief review of maintenance laws among different communities in India exhibit some anomalies, gaps and lacunae. There are elaborate provisions in Hindu law as in Mahomed an about maintenance provisions both old (Shastric and Koranic). Similar provisions of maintenance have been contained in chapter IX (Sections 125-128) of the CRPC which purports to be a complete legislation by itself. There should be attempt to find out a role model (common) under a common umbrella. Chapter IX of CRPC may possibly appear as a role model.[32]

But in section 125 of The CRPC itself there are some anomalies and lacunae which should be reconciled. Some anomalies, lacunae in chapter IX of Cr. P.C., 1973 are stated below as:

Under the CRPC, a Magistrate has no inherent power like section 151 of Civil Procedure Code or like 482 of the CRPC by which a High Court has got inherent power. Under Sec. 362 of the CRPC, Magistrate cannot alter or review his own order.[33]

Some distinctive features between Hindu Marriage Act, 1955 and Hindu Adoptions and Maintenance Act are stated below to show some anomalies. Under Section 24 of Hindu Marriage Act, 1955 maintenance may be obtained by both male and female spouse from the other spouse. Under Section 18 of 1956 Act, only the wife can get maintenance.

Section 24 of the Hindu Marriage Act, 1955 provides even the expenses of proceeding, but section 18 of 195 6 Act does not provide such scope at all. The order passed under section 24 of the Hindu Marriage Act, 1955 is not appealable though revision lies. But, the decree passed under section 18 of the Hindu Adoptions and Maintenance Act, 1956 is appealable.

CONCLUSION

There are various differences in the laws of maintenance as given under the various personal laws as well as in the secular law of CrPC. Under the Hindu Laws, the male counterparts are also eligible to receive maintenance. But in cases of second marriage, the second wives can only get respite under the secular law of maintenance under Section 125 of the CrPC. So, the CrPC is a better recourse to get maintenance compared to the Hindu Personal Law.

In case of Muslim women, it is definitely more beneficial for them to approach the Court under the CrPC for claiming maintenance, rather than under their personal law. The CrPC provides a reasonable quantum of maintenance. Also, it also applies on divorced women, unlike the Muslim Personal Law. It also provides for a lifetime maintenance, unlike the Muslim Law that only provides for maintenance till the Iddat period.[34]

Although Section 125 of the Code of Criminal Procedure protects the right of the wife, and the parents to get the equitable amount of maintenance from the husband or their children respectively, there should not be any misuse of such a provision. Nowadays, the scope of revision against the order passed under Section 125 has increased, and the higher courts are increasingly accepting the revision applications under Section 397 for providing appropriate reliefs to the opposite party.

There is no set rule which the courts have been following in allowing or rejecting the revision application, it all depends on the facts and circumstances of a certain case. Sometimes the wife, even after the separation, has enough means to maintain herself. Some High Courts had rejected the revision application filed by the husbands because even after their ex-wives had means to maintain themselves, they still were required to give them the maintenance.

However, in the above-mentioned case laws, the High Courts have approved the revision application of the husbands because the wives could maintain themselves. Therefore the court decides it based on circumstances prevailing at that time. Hence, these precedents have increased the scope of the revision application against the order passed under Section 125 of CrPC. Although, the author believes that before invoking any such provisions, the parties should solve the matters among themselves.

The society changes continuously so shall the law, in order to match the need of the society. The women, children, and parents being the most essential part of the family as well as the society shall be taken care of and it is a responsibility on the part of the state to make such law to protect their interests. Section 125 is broad enough and secular in nature in order to include all the religions followed in India by different people across the country. But we need to ensure that there is no misuse of the same.

BIBLIOGRAPHY

https://www.shareyouressays.com/knowledge/order-for-maintenance-of-wives-and-children-section-125-of-crp-2/119452

https://thedailyguardian.com/analysis-on-order-for-maintenance-of-wives-children-and-parents-under-the-code-of-criminal-procedure/

simranlaw.com/maintenance-under-section-24-of-hindumarriage-act/

indiankanoon.org/doc/1728023/

http://moj.gov.jm/sites/default/files/laws/Maintenance%20Act.pdf

http://thelegiteye.in/2016/11/28/maintenance-undersection-24-of-the-hma-vs-maintenance-under-section-125-of-crpc/

[1] Maintenance of Wives, Children and Parents by P.M Bakshi, available at: http://ijtr.nic.in/Maintenance%20of%20Wives,%20Children%20and%20Parents.pdf (visited on April 3, 2021)

[2] Nanak Chand v. Chandra Kishore, A.I.R. 1970 SC 446

[3] Yamunabai v. Anant Rao, A.I.R. 1988 SC 644.

[4] Procedure for maintenance of Wife & Child, available at: http://lawtimesjournal.in/procedure-for-maintenance-of-wife-child/#_edn5 (visited on April 3, 2021).

[5] (2005) 5 S.C.C. 182.

[6] A.I.R. 1997 Ori 73.

[7] Rohtash Singh v. Smt. Ramendri, A.I.R. 2000 SC 1952

[8] Sadhu Singh v. Gurdwara Sahib Narike, A.I.R. 2006 SC 3282.

[9] Meera Nireshwalia v. Sukumar Nireshwalia, A.I.R. 1994 Mad 168

[10] A.I.R. 2009 SC 636.

[11] A.I.R. 1995 All 70.

[12] Bhagwan Dutt v. Kamal Devi, (1975) 2 S.C.C. 386

[13] Nanak Chand v. Chandra Kishore, A.I.R. 1970 SC 446.

[14]Maintenance under CrPC

[15] Md. Ahmed Khan v. Shah Bano Begum, A.I.R. 1985 SC 945.

[16] AIR (2016) 9 SCC 541

[17] Prasad B M and Mohan Manish: The Code of Criminal Procedure, LexisNexis, Haryana, 21st edition, 2015

[18] Do earning wives have the right to maintenance?, available at: https://blog.ipleaders.in/do-earning-wives-have-right-to-maintenance/ (visited on April 7, 2021).

[19] A.I.R 1978 S.C. 1807.

[20] Fazlunbi V K. Khader Vali, A.I.R 1980 S.C 1730: (1980) 4 S.C.C 125

[21] Ranchhoddas v Emperor, A.I.R 1949 Bom. 36

[22] Savitaben Somabhai Bhatiya Vs. State of Gujarat, 2005 Cr LJ 2141 (SC)

[23] Jagdish Jugtawat v. Manju Lata, (2002) 5 SCC 422.

[24] Order For Maintenance Of Wives, Children And Parents ( Section 125 ) under Code of Criminal Procedure Code, 1973, available at: http://kanoon.nearlaw.com/2017/12/30/order-maintenance-wives-children-parents/ (Visited on April 7, 2021).

[25] 1980 Cr LJ 256 (Bom)

[26] (2010) 10 SCC 469

[27] Order For Maintenance Of Wives, Children And Parents ( Section 125 ) under Code of Criminal Procedure Code, 1973, available at: http://kanoon.nearlaw.com/2017/12/30/order-maintenance-wives-children-parents/ (Visited on April 7, 2021).

[28] Analysis on order for maintenance of wives, children and parents under the Code of Criminal Procedure. available at: https://thedailyguardian.com/analysis-on-order-for-maintenance-of-wives-children-and-parents-under-the-code-of-criminal-procedure/ visited on April 9. 2021)

[29] Abdulmunaf v. Salima 1979 Cr LJ 172

[30]  1980 CriLJ 601

[31] AIR 1999 SC 839

[32] Ipleader; Maintenance under CrPC and personal laws- a comparative study, available at: https://blog.ipleaders.in/maintenance-crpc-personal-laws-comparative-study/ (visited on April 8, 2021).

[33] Prema Jain v. Sudhir Kumar, 1980 Cr.L.J. 80.

[34] SCC Online; Maintenance – Wife, available at: https://www.scconline.com/blog/post/2019/01/04/maintenance-wife/ (Visited on April 8, 2021).