Maintenance under Section 125 of CrPC

Maintenance under Section 125 CrPC

Section 125 of CrPC is meant to achieve a social purpose that is to prevent vagrancy, destitution, and poverty. It provides a speedy remedy for the supply of food, clothing, and shelter to the deserted wife. The object of this provision is to compel a man to perform his moral obligation which he owes to society with respect to his wife, children, and parents.

In Captain Ramesh Chandra Kaushal v. Veena Kaushal, The Supreme Court held that Maintenance under Section 125 of CrPC falls within the Constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India. It gives effect to the natural rights and duties of a man to maintain his wife, children, and parents who are unable to maintain themselves. The proceedings under section 125 CrPC are quasi-civil in nature, therefore the rules of pleadings that apply to civil proceedings are not to be disregarded. The purpose of this provision is not to punish a person who doesn’t maintain his dependants but to provide speedy remedy to those who are suffering. It doesn’t distinguish between people of different religions, i.e. It applies equally to all. The marriage between a Hindu and Christian cannot be considered to be invalid to claim maintenance.

There is also a provision of interim maintenance which means that during the pendency of a case, the Magistrate may direct the person liable to pay a monthly allowance to the applicant for such a temporary period. 

Subsection (1) of Section 125 CrPC provides for the parties who are entitled to claim maintenance:

  1. Wife, from her husband

The term wife means a woman who:

  • is divorced or has obtained a divorce from her husband
  • has not remarried

Where a man and woman have been living together for the last 20 years as husband and wife and their relatives also treat them in the same manner, the woman can claim maintenance under Section 125 CrPC due to the presumption that she is the legally married wife, held in Chanmuniya v. Virendra Singh. But this provision does not apply to such a woman who is the second wife to a man whose first wife is already living. In such case the second marriage will be void ab initio, so, that woman cannot be regarded as a wife and thus no claim arises.

  1. Legitimate or illegitimate minor child, from father

Minor has the same meaning as under the provisions of Indian Majority Act,1875 that is a child who has not attained 18 years of age.

Even if no valid marriage exists, an illegitimate child is entitled to claim maintenance.

A minor daughter who is unmarried can claim maintenance from her father. But if she is married, it’s the duty of her husband. The magistrate can still give order against her father to maintain her, in case, he is satisfied that the husband of the daughter doesn’t have sufficient means.

In Lopamudra Bhuyan v. Surajit Singh, the Supreme Court observed that “it would be incorrect to hold that both the parents are equally responsible for the expenses of the child. A mother who has custody of a child not only spends money on the upbringing of the child but also spends substantial time and effort in bringing up the child. No doubt, mother, if she is earning, should also contribute towards the expenses of the child but the expenses cannot be equally divided between the two.” In furtherance of this statement, the court awarded maintenance to the child at ₹20, 000 per month, payable from the date of filing of the application under section 125.

  1. Legitimate or illegitimate child (except a married daughter) who is physically or mentally disabled, from father
  1. Parents, from their son

The condition preceding is that the person claiming maintenance is unable to maintain himself or herself.

The fact that a woman is educated is no ground to deny maintenance to her. It has to be taken into account that the wife was having sufficient resources while she was living with her husband. If a woman after desertion, tries to join some service to earn money for living, is not a valid reason to deny her maintenance claim. (Major Ashok Kumar Singh v. VIth Additional Sessions Judge, Varanasi)

Giving a different opinion in Kusum Bhatia v. Sagar Sethi, the Supreme Court bench declined to award any maintenance to the wife who was working with sufficient salary,  but awarded maintenance to the daughter.

125(3) provides that if a person fails to comply with the order of magistrate to give maintenance, the Magistrate may issue a warrant against such person, on an application being made to him, and sentence him to imprisonment for a term which may extend to 1 month, or less if payment is made sooner. It was held in Smt Kuldip Kaur v. Surinder Singh, “ Sending of the husband to jail for recovery of maintenance under section 125 or 128 is not a mode of discharging liability but a mode of recovery only.”

When the husband offers to maintain his wife on the condition that she has to stay with him, there must be sufficient grounds with wife for not doing so, in order to claim maintenance. Such sufficient grounds can be:

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  1. husband has kept a mistress or
  2. he has contracted marriage with another woman.

The husband being impotent is another suffice reason to live separately. In Bai Shnab Charan Jena v. Ritarani Jena, the court held that the very allegation by the husband of his family members that the wife is having an extra-marital relationship is insulting and humiliating enough to be a ground for the wife to live separately and deny living in the same house as of husband. The mere allegation is not enough, it has to be proved. The Supreme court upheld the decision of Family court in Shaikh Basid v. State of Maharashtra. It was stated that “if a wife is uncomfortable because of her in-laws and the treatment given to her by them, and she lives with her parents due to the said reason, the wife has just cause to live separate and demand maintenance.”

Section125(4) states the conditions when a woman is not entitled for monthly allowance-

  1. Husband and wife have separated mutually
  2. Wife is living in adultery. (Adultery has been abolished as an offence under IPC)
  3. Wife has been living separately without sufficient grounds

Section 126 reads Procedure. The proceedings and order given under section 125 are carried out by the Magistrate of Ist class at any place where-

  1. The husband is
  2. The husband and wife reside
  3. The husband last resided with his wife

In furtherance, section 127 states that the Magistrate on being satisfied that there has been changing in circumstances of the person paying or receiving monthly allowance can make alterations in the amount of allowance for maintenance. The Magistrate may cancel an order made in favour of a woman, under Section 125 if the woman-

  1. has remarried
  2. obtained the whole sum which she is entitled to receive under any personal or customary law
  3. has voluntarily surrendered her right to claim for maintenance

The order obtained under Section 125 is enforced under Section 128 where  a copy of the order should be sent to the person in whose favour it is made.

Generally, the husband is exempted from claiming maintenance as there is no express provision for the same, but in recent cases, the court has taken a lenient view on this point. In Rani Sethi v. Sunil Sethi, the Delhi High Court upheld the view of the Trial Court and directed the wife to pay maintenance to husband at ₹20,000 per month and additional ₹10,000 as litigation expenses and also to provide Zen car for the use of husband. The court has stated, “ The purpose of Section 24 of the Hindu Marriage Act is to provide support to a spouse who has no independent source of income and is incapable of maintaining himself or herself. Another case is of Kishori lal Sohankar v. Munni Devi where the family Court in U.P. ordered the woman to pay her husband a sum of ₹ 1,000 per month. This couple separated about 7 years ago.

Other than Section 125 CrPC, there are various other legislation under which maintenance can be claimed. These are:

  1. Section 25 of Hindu Marriage Act,1955- which allows either spouse to claim maintenance from the other for the whole of their life or till the time he/she remarries.
  2. Section 18 of Hindu Adoption and Maintenance Act, 1956- provides that the wife can claim maintenance and separate residence if conditions under 18(2) are fulfilled. These conditions are- desertion, cruelty, leprosy, conversion from one religion to another, a second wife or concubine living in the same house or any other reasonable cause. A widowed wife can claim maintenance from her father in law under section 19 of this Act.
  3. Section 3 of Muslim Women ( Protection of Rights on Divorce) Act, 1986- A Muslim woman can claim maintenance under this provision during her iddat period. Such amount should be equal to the mahr(dowry) given to her at the time of marriage and other such property should be given back to her. In the case of non-compliance by the husband, she may approach the Magistrate to pass an order for the same.
  4. Section 40 of Parsi Marriage and Divorce Act, 1936- The benefit under this provision is the same as that of Hindu Marriage Act, but this Act applies only to Parsis.
  5. Section 37 of the Special Marriage Act, 1954- provides maintenance only to the wife.
  6. Section 37 of the Divorce Act, 1869- This provision also entitles a woman to get maintenance from her husband in form of a whole sum amount or she can claim for monthly/weekly allowances.

Interim maintenance can be demanded under section 24 of Hindu Marriage Act1955, Section 36 of Special Marriage Act, Section 39 of Parsi Marriage and Divorce Act and Section 36 of the Divorce Act.

Also Read: Attributes of Investigation under the Criminal Procedure Code, 1973

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