Author: Stuti Jha


The order for maintenance has been given in CHAPTER IX of The Criminal Procedure Code, 1973

MEANING

  1. Legal meaning: maintenance refers to alimony or spouse support.
  2. Black law dictionary: Expenditure undertaken to preserve an asset’s service potential for fulfilling its basic needs.
  3. General meaning:
    1. The term maintenance has not been defined in court
    2. Dictionary meaning means food, clothing and lodging but the word should not be narrowly construed.
    3. It would include-
      1. Means of subsistence
      2. Supply of necessaries
      3. Aid support existence for his or her living
      4. Medical and other expenses
      5. Minimum amount for education of child

OBJECTIVE

The objective is providing for maintenance under section (125-128) is to prevent starvation and vagrancy in the society which may lead to commission of crime by those who are unable to maintain themselves.

Bhagwan Dutt v. Kamla Devi[1]

It was held that the remedy provided in these sections is of civil nature but it has been included in Crpc with a view to ensure speedy relief to neglected wives and children.

CONSTITUTIONAL VALIDITY

Derives its validity from Article 15(3) of the Indian Constitution.

The said article makes it easier for the government in making laws for the benefit of wives and children.

“Article 15(3): nothing in this article shall prevent the State from making any special provision for women and children”

PROVISIONS

Section 125: order for the maintenance of wives, children and parents-

Essential ingredients are;

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

  1. His wife, unable to maintain herself, or
  2. His legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
  3. His legitimate or illegitimate child
  4. 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 to such person to make monthly allowances for maintenance

Provision 1– magistrate may order the father of a minor female child referred to make allowance until she attains majority, if magistrate is satisfied that husband is not posed of sufficient means.

Provision 2- Magistrate during the pendency of proceeding may order person of proceeding may order person to give monthly allowance for maintenance and the expenses of such proceeding which the magistrate considers reasonable and to pay the same to such person as magistrate may from time to time direct.

Provision 3- the application for monthly allowance be disposed of withn60 days from the date of notice.

Explanation- for the purpose of this chapter-

(a) “Minor” means a person who under the provisions of Indian Majority Act, 1875 is deemed not to have attained his majority;

(b)”wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

2). All money shall be payable from the date of order.

3). The person who will breach the order, magistrate can issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person.

4). no wife shall be entitled to get maintenance under this section if she is living in adultery or if without ant 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 favor an order has been made under this section is living in adultery or that they are living separately by mutual consent, the magistrate shall cancel the order.

Mohd. Ahmed Khan V. Shahbano Begum [2]

The case was a watershed in the protection of women’s rights in a largely chauvinistic nation

Facts of case-

In 1978, a prosperous Muslim Lawyer unilaterally divorced Shah Bano his wife of over forty years by pronouncing ‘Triple Talaq’. The abrupt divorce as allegedly because of an inheritance dispute between Shah Bano’s children and those of her husband’s other wife. Now, as mandated by Muslim personal law, the husband paid 3000 rupees to his divorced wife during iddat. Having being driven out of her matrimonial home in Madhya Pradesh, Shah Bano filed a petition under section 125 of the Crpc before the judicial magistrate at Indore. She sought maintenance from her former husband, who she claimed had an annual professional income of about 60,000 rupees.  The magistrate ordered the husband to pay shah Bano a paltry 25 rupees every month as maintenance. When Shah Bano appealed to the Madhya Pradesh High court in 1979,the maintenance amount was revised to Rs 179.20 every month.

The constitutional bench delivered a unanimous verdict-

First, the court set provision of section 125 which was truly secular in character and different from personal law of party.

Second, the court alluded to the religious neutrality of section 125 of crpc stating that whether the spouses are Hindus or Muslims, Christians or Parsis, is wholly irrelevant.

Third, the bench also interpreted sections of the Quran to mean that husbands were duty- bound to maintain their wives.

Danial Latifi v. UOI[3]

The court observed that Section 3(1)(a) of the Muslim Women (Protection of Rights on Divorce) Act,1986 requires a Muslim husband to make reasonable and fair provision for the future maintenance of the divorced wife beyond the iddat period. When the husband takes divorce by any means, the onus lies on him to maintain his wives and children.

Nanak Chand v. Chand Kishore[4]

It was held that these provisions are applicable to person belonging to all religion and have no relationship with personal laws of parties.

Shahnaz Begum Sheikh v. Kadarbasha Usma Sheikh[5]

The high court of Bombay has held that where the litigation was prosecuted by petitioner in her capacity as “wife” and not in capacity of “divorced wife” it was open to her to file an application under section  3 of the Muslim Women(  protection of rights on divorce) Act, 1986.[6]

Maintenance in case of consent divorce

In today’s scenario, spouses are divorcing by their mutual consent with a view to avoid legal expenses. Here are some cases which assert this point-

Navpreet Kaur v. Gurrukirat Singh[7]

The husband and wife agreed for a consent divorce on the condition that the petitioner will withdraw the divorce on the condition that the petitioner will withdraw the divorce and maintenance petition filed by her against the husband under section 498A/406/ 120B r/w section 9 of Hindu Marriage act.

Proceedings under Section125 are not criminal proceedings

The proceedings under section 125 not being in the nature of criminal proceeding neglect of maintenance of wife/children/parents is not an offence and therefore an application made under section 2 (a) of crpc. So also a person proceeded against under this section is not an accused person.

Section 125 only relates to right of maintenance as a summary remedy and it has nothing to do with the adjudication of conjugal rights of the spouses.

Section 126: Procedure-

  1. Procedure may be taken against person in any district-
    1. Where he is,
    2. Where he or his wife resides, or
    3. Where he last resided with his wife, or as the case may be, with the mother of the illegitimate child.
  2. All evidence to such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made or when his personal attendance is dispensed with in the presence of his pleader and shall be recorded in the manner prescribed for summons cases.
    • Provided that if the magistrate is satisfied that the person against whom an order whom an order for payment of maintenance is proposed to be made is willfully avoiding service or willfully neglecting to attend the court, the magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application within three months.
  3. The court in dealing with applications under section 125 shall have power to make such order as to costs as may be just. The word “resides” has to be interpreted in wider sense to include a place where a person intends to live permanently or has a dwelling place or an abode.

Chander Kaushal v. Veena Kaushal[8]

The Supreme Court observed that despite a divorce petition under section24 of the Marriage Act, pending in a civil court, the magistrate can order maintenance under section125 of the code.

Section 127: Alteration in allowance-

Essential ingredients-

  1. On proof of a change in the circumstances of any person receiving under section 1225 a monthly allowance for the maintenance or interim maintenance as the case may be the magistrate may make such alteration as he thinks fit in the allowance
  2. Magistrate shall cancel the order if it appears to him that in consequence of any decision of competent civil court any order made under section 125 should be cancelled or varied
  3. where any order has been made under section 125 in favor of a women who has been divorced by, or has obtained a divorce from her husband, the Magistrate shall, if he is satisfied that-
    • The women has, after the date of such divorce, remarried cancel such order as from the date of her remarriage
    • The women has been divorced by her husband and that she has received, whether before or after the date of the said order
    • The woman has obtained a divorce from her husband and she has voluntarily surrendered her rights to after her divorce, cancel the order from the date thereof
  4. at the time of making any decree for the recovery of any maintenance or dowry by any person to whom a monthly allowance for the maintenance and interim maintenance or any of them has been observed to be paid under section 125

Section128: enforcement of order of maintenance-

Essential ingredients-

  • A copy of the order of maintenance or interim maintenance and expense of proceeding, as the case may be shall be given without payment to the person in whose favour it is made or to his guardian if any, or
  • To the person to whom the allowance or the interim maintenance is to be paid and such order may be enforced by any magistrate in any place.

RECENT CASES ON MAINTENANCE

Shailja& Anr. V. Khobanna[9]

In this case the Supreme Court made a remarkable observation by stating that merely because the wife is capable of earning it is not a reason to reduce the maintenance awarded to her

Kulbhhushan v. Raj Kumar& Anr.[10]

It was held that 25% of the husband’s net salary would be just and proper to be awarded as maintenance to the respondent –wife.

V.M. Nivya v. N.K. Shiva Prasad [11]

The Kerala High court dismissed husband’s claim for maintenance under section 24 of Hindu Marriage Act, 1955 is to be paid to the husband only when he is able to prove any capability or handicap.

Chanmuniya v. Virendra Kumar Singh[12]

Thee term wife should have broad and expansive interpretation so that those cases can be included where man and woman are living together as husband and wife for a long period of time. The strict proof of marriage should not be a pre- condition for maintenance under section 125 of crpc. It would be believed that such interpretation is just application of principles enshrined in Preamble upholding dignity of individuals.

CONCLUSION

The maintenance is needed to maintain the family by the person who has taken the responsibility of woman my marrying her under Hindu Marriage Act. Our Indian juridical systems make laws and implement it as per the requirement of the situation and status quo.  The interpretation which has not been done in provisions of laws de novo which has been explained and held in recent cases which completely debars the loopholes and hesitancy.


[1] AIR (1975)2 SCC 386

[2] AIR 1985 SC 945.

[3]  (2001) 7 SCC 740.

[4] AIR 1970 SC 446.

[5]  AIR 2001(5) Bom CR 40

[6] Section 3 in The Muslim Women (Protection of Rights on Divorce) Act, 1986.

[7] (2010) 3 SCC (Cri) 1199.

[8](1978)4 SCC84

[9] CRIMINAL APPEAL NO.s 125-126 of 127

[10] (1970) 3 SCC 129

[11] O.P. (FC) No. 26 of 2015. (Kerala HC)

[12] AIR 2010 SC Supp 29.


About the Author: Stuti is a fourth year student at Law College Dehradun, Uttaranchal University.


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