The Criminal Procedure Code (CrPC) confers a substantive right of maintenance under sections 125-128. It asks the man to maintain his wife, children, and parents who are not able to maintain themselves. Through the order of maintenance, CrPC protects the rights of deserted wives, children, and parents. This makes the man fulfill his moral duty of maintaining the people who are dependent on them so that they don’t resort to illegal criminal activities to sustain themselves.
SECTION 125: ORDER FOR MAINTENANCE OF WIFE, CHILDREN, AND PARENTS:
Section 125 says that if any man having sufficient means ignores or refuses to maintain-
1. His wife who is not able to maintain herself,
2. His legitimate or illegitimate child whether married or not unable to maintain itself
3. His legitimate or illegitimate child not being married daughter who has attained majority but is physically or mentally abnormal or injured thereby unable to maintain itself
4. His father or mother is unable to maintain himself or herself.
In such a case, the Magistrate may by passing an order ask that man to maintain his wife, child, father, or mother by giving them a monthly allowance as the magistrate thinks fit. If the child is married to a minor female child whose husband does not have sufficient means to maintain his wife the Court may order the father of the minor child to give allowance to her till she attains the age of majority.
By the Amendment Act 2001, during the pendency of the suit, the Magistrate may order the man to pay a reasonable amount of interim maintenance and also for the expenses incurred in the proceedings of the court. The interim maintenance and expenses should be paid within sixty days from the date of notice to the person liable to pay maintenance.
In the case of Mohd. Ahmed Khan v. Shah Bano Begum, the Supreme Court made it clear that Section 125 is applicable to all people irrespective of their religion. Thus, it applies to Muslim women also. Section 125 has given a statutory right to the people who are unable to maintain themselves and this right is not affected by any personal law. The Court held that the religion professed by the spouse is not relevant for Section 125 as this section is secular in nature.
It must be noted that CrPC has not made failure to maintain a wife, children, and parents a punishable offence. Thus an application made under Section 125 of CrPC is not a complaint and the person liable to pay maintenance is thus not an accused.
In Krishna Gopal v. Usha Rani the Delhi High Court held that an application under Section 125 made by a wife whose marriage is annulled under Section 12 of the Hindu Marriage Act is not maintainable.
PENALTY FOR NOT COMPLYING WITH THE MAINTENANCE ORDER:
Where a Court has passed an order of maintenance, interim maintenance, or expenses of proceedings against a man who has failed to comply with the order without any sufficient reason the Magistrate may issue a warrant for levying the maintenance amount. The Magistrate can also sentence the man to imprisonment extending up to one month or until the payment of the maintenance amount, whichever is earlier.
However, if an application for maintenance is made after the expiry of one year from the day on which the amount became due the warrant cannot be issued against the man. This provision prevents arrears to pile up making it impossible to pay.
WHO CAN CLAIM THE MAINTENANCE ORDER?
The following persons have a right to claim and get maintenance under Section 125 of CrPC-:
1. WIFE– An un-remarried divorced wife who is unable to maintain herself whether minor or major can get maintenance under Section 125 (1) (a).
As this section is made to provide social justice, strict proof of marriage is not absolutely required. In Chanmuniya v. Virendra Singh, Supreme Court included those women under wife who have been living with a man as husband and wife for a long time
When can a wife claim maintenance?
A wife can claim and get maintenance from her husband if the following conditions are fulfilled-
- Her husband has given her divorce;
- She has taken divorce from her husband;
- She has not remarried after taking divorce from her husband;
- She is not able to maintain herself
When the wife cannot claim maintenance?
A wife cannot claim and get maintenance from her husband under the following conditions-
- She is living in Adultery;
- She refuses to live with her husband without giving sufficient reason;
- She and her husband are living separately with mutual consent
- LEGITIMATE OR ILLEGITIMATE MINOR CHILD-
- SON– A minor son who has not attained 18 years of age whether legitimate or illegitimate can get maintenance under Section 125 of Cr PC.
- DAUGHTER– An unmarried minor daughter whether legitimate or illegitimate has the right to get maintenance from her father. If the daughter is married then she can get maintenance from her father only when the Magistrate is satisfied that her husband does not have sufficient means to maintain his minor wife.
- ABNORMAL MAJOR CHILD- Any major child whether legitimate or illegitimate who is physically or mentally abnormal or disabled has to be maintained by his father and the child can get maintenance on the ground of his abnormality or disability.
- FATHER / MOTHER– Section (1) (d) states that a mother or father who is unable to support themselves can claim and get maintenance from their children. An adoptive mother can also claim maintenance from her adopted son. A father’s claim for maintenance cannot be defeated by pleading that the father had failed to fulfill his obligations towards his children.
ESSENTIAL CONDITIONS FOR GRANTING MAINTENANCE:
1. Sufficient means to maintain– The order for giving maintenance can be passed against the person who has sufficient means to maintain. Thus the person from whom the maintenance is claimed must be having sufficient means but is still refusing or neglecting to give maintenance. The burden of proof is on the person claiming that he has no sufficient means to give maintenance. This is done to ensure social justice so that the man who is legally bound and has sufficient means does not run away from his duty to maintain his wife, children, and parents.
2. Refusal or neglect to maintain– A person who has sufficient means must neglect or refuse to maintain his wife, children, and parents with mala fide intention to avoid his legal duty. Such refusal might be expressed or implied.
3. The claimant is unable to maintain himself or herself– The claim for maintenance is granted only when the person claiming the maintenance is unable to maintain himself or herself. Thus a non-working wife, children, or elderly parents who are not able to maintain themselves are entitled to maintenance.
QUANTUM OF MAINTENANCE:
The magistrate can fix the monthly rate of maintenance as he deems fit in each case respectively. If the wife and the child have a claim against the same person then both are entitled to get maintenance separately. The quantum of maintenance depends upon the standard of living of the person from whom it is claimed.
WHERE CAN MAINTENANCE PROCEEDINGS BE INITIATED?
The maintenance proceedings under Section 125 may be taken in District-
a. Where the respondent resides: or
b. Where the respondent currently is: or
c. Where the respondent last resided with his wife or mother of his illegitimate wife.
All evidence presented in this proceeding shall be taken in the presence of the person against whom the maintenance proceedings were initiated. If his personal attendance is dispensed then such evidence may be taken in the presence of his pleader.
It must be noted that if the Magistrate feels that the respondent is willfully avoiding service of summons or intentionally avoiding attending the Court then the Magistrate has the power to hear and decide the case ex parte.
ALTERATION IN ALLOWANCE:
Allowance given under Section 125 may be increased, decreased, or canceled by the Magistrate upon receiving any proof of a change in the conditions of the person receiving or paying the allowance.
Further, as a result of any decision of a Civil Court if the Magistrate feels that he needs to vary the allowance he may vary or even cancel the maintenance order. Similarly, if any maintenance order was passed in favor of a divorced woman the Magistrate may cancel the order if the woman remarries, if the woman has taken allowance under any personal law after divorce, or if the woman has left her right to maintenance.