People with sufficient means neglect their moral and social duty to take proper care and main their parents, wife, and children. Thus CrPC ensures they’re not left alone without monetary allowance. Section 125 of CrPC provides maintenance irrespective of the personal laws. If there’s a conflict between personal law and CrPC regarding maintenance, CrPC prevails. The scope of this section is wide. I.e. maintenance can also be provided by a wife or daughter to her husband or parents. In this article I have dealt with components of maintenance and who can claim maintenance and how the order of maintenance can be executed and who has the power to award maintenance etc.
Keywords: Divorce, Adultery, illegitimate, Property, Health, widow.
Maintenance is an important and necessary component considered by the court while dealing with the dissolution of marriage. The term Maintenance under the law means an order of the court, to provide either permanent or temporary alimony by one spouse to the other spouse. Section 125 of The Code of Criminal Procedure, 1973(CrPC), deals about the order given by the court for the maintenance of wives, children, and parents. It has been observed by the SC that Section 125 of CrPC overrides the personal laws if there’s any conflict between the two. Therefore Section 125 of CrPC contains 5 clauses that deal with various aspects of maintenance, which is discussed in this article.
Who is entitled to Maintenance under Sec 125 of CrPC?
According to this section, persons who are unable to maintain themselves are entitled to avail to maintenance, they are,
The term ‘Wife’ includes women who’ve been divorced by her husband or obtained a divorce, who has not remarried. She’s entitled to maintenance for her survival. In the case Chanmuniya v. Virender Kumar Singh Kushwaha, JT 1 interpretation has given to the term ‘wife’- man and women living together as husband and wife for a reasonable amount of time moreover it was also held that strict proof of marriage should not be a pre-condition for maintenance.
In the case of K. Vimal v. K. Veeraswammy 2, it was held in the following words, “Section 125 of the Code of Criminal Procedure is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing, and shelter to the deserted wife.”
The wife cannot be denied maintenance on the ground that she’s having a source of income. In the case of Sunita Kachwa v. Anil Kachwa 3, the Supreme Court held that In any event, merely because the wife was earning something, it would not be a ground to reject her claim for maintenance.
Thus the conditions for a wife to claim maintenance are,
- Should be divorced by her husband, or,
- Obtained divorce from her husband and
- Not remarried and,
- Not able to maintain herself.
In the case of, Rohtash Singh v. Ramendri 4, the Supreme Court held that, if women cannot handle herself (monetarily) after the divorce and remain unmarried, it is the duty and obligation of the ex-husband to provide maintenance to her.
So, what are the circumstances where the wife cannot claim maintenance?
When the wife is living in adultery
As per Section 125(4) of CrPC, the wife cannot claim an allowance for maintenance or interim maintenance or even expenses of the divorce proceedings if she’s living in adultery.
When she’s remarried
According to section 125, if a divorced woman who is claiming maintenance remarries, she’s not entitled to claim maintenance from her ex-husband.
When she has refused to live with her husband for without any valid reasons
When the wife is refused to live with her husband without any sufficient and valid reasons she cannot claim maintenance.
In the recent case of Smt. Teja Bai v. Chhiddu Armo, the Madhya Pradesh High Court rejected the wife’s challenge for maintenance on the ground there’s no sufficient reason for separation from her husband.
The valid reasons depend upon facts and circumstances of each case
When the divorce is by mutual consent
According to this section, the wife is not entitled to claim maintenance if the divorce is obtained by mutual consent. But this does not deprive the wife’s right to claim maintenance. The wife cannot claim the right to maintenance if she relinquished the right before.
Legitimate or illegitimate minor child
The term minor means persons who have not attained the age of majority. i.e. below 18 years. Section 3 of The Indian Majority Act, 1875, deals with the term minor.
Minor children irrespective of the legitimacy either legitimate or illegitimate can claim maintenance from their father. Minor daughter can claim maintenance if she’s unmarried. But in many cases, it was held that unmarried major daughter can claim maintenance from her father if she is not financially independent even if she doesn’t suffer from any physical or mental abnormality.
Illustration: The husband and wife have got divorced and the children are living with the wife. A monthly allowance was given to the wife and kids by the father. There are 2 kids’ son and daughter. Son finished his studies and working and paying off his student loan, and a daughter who just attained majority. The father cannot stop paying maintenance for his daughter on the ground she has attained majority. The father must provide maintenance for her daughter until she’s is financially stable.
An adopted son is also eligible to claim maintenance.
A legitimate or illegitimate minor child who has attained majority (physical or mental abnormality)
According to this provision, both the son and daughter either legitimate or illegitimate who have attained the age of majority but suffering from physical or mental abnormality can claim maintenance from their father.
Father or Mother
One should not neglect their parents and let his/her father or mother to file a suit to get maintenance from their son. It is the moral duty of the son to take care of their parents.
The natural father, mother, and adoptive parents can claim maintenance from natural and adoptive children.
In the case of Baban Alias Madhav Dagadu Dange v. Parvatibai Dagadu Dange 5, it is observed by the Bombay High Court that the terms Father and Mother in the General Clauses Act, includes both natural and adoptive ones.
In the case of, Vijay Manohar Arbat v. Kashirao 6, the Supreme Court held that even the married daughter has the duty and obligation to take care and provide maintenance to her parents. The maintenance of their parents is the social and basic moral duty of their children, both son and daughter. While awarding maintenance from the daughter, the court will look into the financial status of the daughter, and the parents must be unable to maintain themselves.
Even step-mother can claim maintenance from her stepson if she’s not having a child of her own.
In the case of Kirtikant D. Vadodaria v. State of Gujarat and Ors 7, the Supreme Court held that “a step-mother can claim maintenance from her step-son if she’s not having a child of her own and if her husband is not in a position to maintain her or she is a widow”.
Conditions for claiming maintenance (Quantum for maintenance)
If a person has the means and resource to maintain his parents or children or wife but neglects or refuse to maintain them.
Neglect- Failure to maintain them before the demand for maintenance is obtained.
Refuse- Failure to maintain after the demand for maintenance is obtained.
The capacity of the husband to pay should also be taken into consideration i.e. sufficient means.
The terms ‘Sufficient’ and ‘Means’ should be analyzed by the court while rendering the maintenance claim.
One who is not naturally taking care of his parents or child or wife will try to avoid paying maintenance. He’ll come up with many reasons like he does not possess resources or his income is insufficient to pay maintenance.
If the wife is earning well she cannot claim maintenance from her husband. In the case of Abdulmunaf v Salima 8, the wife was refused to grant maintenance from her husband on the ground that she’s well educated and capable of earning on her own but refuses to do so.
Status of both the parties and respective needs must be analyzed.
In the case of Smt. Jasbir Kaur Sehgal vs The District Judge Dehradun & Ors 9, The supreme court held that the court while awarding maintenance it must consider the status of the parties. The measure of maintenance fixed for the spouse ought to be, for example, she can live in sensible solace thinking of her as status and the method of life she was utilized to when she lived with her better half and that she doesn’t feel crippled in the indictment of her case. Simultaneously, the sum so fixed can’t be inordinate or extortionate.
Where to file the Application
- Where he is residing or,
- Where he or his wife resides or,
- Where he lastly resided with his wife or with the mother of the illegitimate child.
Enforcement of Order
Section 128 of CrPC deals with the aspect of the enforcement of the order of maintenance
- A free copy of the order should be given to the person to whom the order is favorable.
- Can be enforced through any Magistrate in India.
- Attachment of movable properties by a Distraint Warrant through police u/s. 421(1)(b) of CrPC.
- Attachment of immovable property through District Collector.
- Attachment of Salary u/s. 431 of CrPC.
- Arrest u/s. 125(3) of CrPC.
The magistrate of first-class can pass the order of maintenance to the wife, child, or parents. According to Section 125(2), maintenance should be payable from the date of the order, or, if so ordered, from the date of the application for maintenance.
As per Section 125(3), in case of failure of executing the order without any sufficient cause, the Magistrate will impose fine with the amount of maintenance. If the individual again falls flat after the execution of the warrant, at that point the punishment of detainment for a term which may reach out to one month or until installment of sooner made is granted.
Ex-parte maintenance can also be awarded if the person is avoiding summons.
Maintenance is not a luxury or privilege; it is there to ensure the proper survival for the wife, children, and parents. One should not enter the court to claim maintenance; it should be the moral obligation of the person to prove care. If anyone fails to perform this duty they can approach the court of law with the help of Section 125 of CrPC. Back then only deserted wife and children are entitled to maintenance under Section 488 of the old Criminal Procedure code, it left out the parents, without whom we wouldn’t be here and divorced wife. The law ensures no one is left behind. Under section 125 of this new CrPC, everyone is accounted for.
Frequently Asked Questions
- What is maintenance in CrPC?
- Who can claim maintenance under 125 CrPC?
- Can husband claim maintenance from wife under 125 CrPC?
- Can the wife claim maintenance after mutual divorce?
- 2010 (11) SC 132.
- (1991) 2 SCC 375
- 2014 (DMC) 878 S.C.
- (2000) 3 SCC 180
- 1978 CriLJ 1436
- 2004 AIR 2123
- 1996 4 SCC 479
- 1979 CriLJ 172
- 1997(7) SCC 7