Maintenance under Criminal Procedure Code
The term Maintenance literally means to take care of something, the process of preserving a condition or situation, the state of being preserved or to provide financial support to somebody to make their living expenses. In India, Various laws are applicable to the matters of maintenance of wives, parents, sons, daughters and other dependents such as HAMA, 1955, HMA, 1955, Protection of Women from Domestic Violence Act, 2005, Special Marriage Act, 1954, Guardians And Wards Act, 1890, etc.
Under chapter IX of Criminal Procedure Code, 1973, Section 125 provides for Maintenance of wives, children and parents. Section 126 provides the procedure to initiate proceedings under Sec. 125, Section 127 talks about Alteration in allowances ordered u/s 125 and lastly, Section 128 enable the enforcement of order of maintenance.
Nature of Section 125:
• It is a secular law , irrespective of religion- Noor Saba Khatoon Vs. Mohd. Quasim, (1997) 6 SCC 233
• Social-welfare legislation- Badshah Vs. Urmila Badshah Godse & Another, (2014) 1 SCC 188
• Not strictly criminal in nature, the proceedings are civil in nature- Vijay Kumar Prasad Vs. State of Bihar, (2004) 5 SCC 196
• Proceedings u/s 125 CrPC are summary in nature and intended to provide speedy remedy- Nagendrappa Natikar Vs. Neelamma, AIR 2013 SC 1541
• We need a maintenance provision under CRPC though its already provided in personal laws so that it can be strictly followed- Rajnesh v. Neha Criminal Appeal no. 730 of 2020
Section 125 CrPC : Order of Maintenance of Wives, Children and Parents
1) When person have sufficient means and neglects or refuses to maintain his-
i. Wife, unable to maintain herself
ii. Legitimate/illegitimate minor children, whether married or not and unable to maintain itself
iii. Legitimate/illegitimate major children but not a married daughter, if they are unable to maintain itself by reason of physical or mental injury.
iv. Father or mother, unable to maintain himself or herself.
The Magistrate I class may order that person to give monthly allowance at such monthly rate for maintenance, upon proof of neglect or refusal to maintain to above-mentioned person/s as Magistrate time to time directs. Three proviso clauses are attached to clause (1) those are-
- Magistrate may order the father of “minor married female child” to make allowance if her husband is not possessed with sufficient means to maintain her, until she attains majority.
- Magistrate may order the person to pay “interim maintenance along with expenses incurred in proceedings” during pendency of proceeding under Section 125 as it thinks fit.
- The application for monthly allowances and expenses of proceeding shall be disposed of within 60 days from date of service of notice of application u/s 125 CRPC to such person.
In Bhagwan Dutt v Kamla Devi AIR 1975 SC 83 the Supreme Court held that under Section 125(1) Cr.P.C. only a wife who is “unable to maintain herself” is entitled to seek maintenance. The object of these provisions is to prevent vagrancy and destitution, the Magistrate has to find out as to what is required by the wife to maintain a standard of living which is neither luxurious nor penurious, but is modestly consistent with the status of the family.
In case of Rajnesh v. Neha Criminal Appeal no. 730 of 2020 the Court held, that the maintenance amount awarded must be reasonable and realistic, and it must avoid either of the two extremes i.e. amount awarded to the wife should neither be so extravagant which becomes oppressive and unbearable for the respondent, nor should it be so meagre that it drives the wife to penury.
In case of Chaturbhuj Vs. Sita Bai, AIR 2008 SC 530 Court held an earning wife is also entitled to claim maintenance if her income is insufficient to maintain herself.
In case of Shahbuddin Vs. State of UP, 2006(1) ALJ 372(All) Court held, where a minor daughter attained majority during pendency of maintenance proceedings, she will be entitled to get interim maintenance up to date of attaining majority.
In case of Jagdish Jugtawat Vs. Manjulata, 2002 SCC (criminal) 1147(SC) and Noor Saba Khatoon Vs. Mohd. Quasim, (1997) 6 SCC 233, Court held, that combined reading of Section 125 CrPC and Section 20(3) of HAMA, 1956 entitles a major unmarried daughter for maintenance from her parents.
But a contrary view was taken in Abhilasha v Parkash & Ors. Decided on 15.10.2020 in Criminal Appeal No.615/2020 where Court marks a distinction between both the laws and three judge bench held that right of claiming maintenance from father is absolute in personal law but Sec 125 limits this right until child attains majority unless they suffer form physical or mental injury which makes them unable to maintain.
Explanation clause of Section 125-
a) “minor” means a person who has not attained majority as per provisions of Indian Majority Act, 1875 i.e. 18 years.
b) “wife” includes a divorced woman and has not remarried.
In case of Savitaben Somabhai Bhatiya Vs. State of Gujarat, 2005 Cr LJ 2141 (SC) Court held, woman not lawfully married cannot be treated as wife and is not entitle to claim maintenance u/s 125 CRPC.
In case of Badshah Vs. Urmila Badshah Godse and Another, (2014) 1 SCC 188 Court held, a second wife is entitled to maintenance if she was unaware of the fact of subsisting marriage of her husband and the latter has duped her and concealed the fact of already existing marriage. Also, husband cannot take the plea that second wife is not entitled to maintenance solely on the ground that it is a void marriage. Therefore, he cannot take advantage of his own wrong.
In case of Rohtash Singh Vs. Smt. Ramendri, AIR 2000 SC 952, Court held, a divorce woman is entitled to enjoy status of “wife” for claiming maintenance till she re-marries or if she is unable to maintain herself even if the divorce is obtained from mutual consent.
2) Maintenance allowance or interim allowance and expenses be payable from date of order, or if ordered, then from date of application for maintenance.
In case of Shail Kumari Devi Vs. Krishan Bhagwan Pathak, AIR 2008 SC 3006 Court held, Order of Magistrate granting maintenance u/s 125 CrPC from date of application without recording reasons is liable to set aside
3) Where the person who is ordered to make allowances fails to comply with the order of maintenance, then Magistrate may issue warrant against him in the same manner as provided for recovery of fine and he may be sentenced to imprisonment for a term which may extend to one month or until payment of allowances if they remain unpaid even after execution of warrant.
In case of Dalip Kumar Vs. Family Court, Gorakhpur, 2000 CrLJ 3893 (All) Court held, confinement u/s 125 CRPC cannot in any manner be stretched to more than one month but is limited up to one month if he fails to comply with maintenance order and on application of wife for seeking same relief and after issue of warrant. For subsequent non-compliance he can be again imprisoned but Magistrate has no power to sentence him for more than one month in one go.
4) A wife is not entitled to maintenance or interim maintenance if she is living in adultery, lives separately by mutual consent or refuses to live with her husband without sufficient grounds.
5) On proof that wife is living in adultery, lives separately by mutual consent or refuses to live with her husband without sufficient grounds, the Magistrate can cancel the order of maintenance, interim maintenance and expenses of proceedings.
Section 126: Procedure-
1) The proceedings of maintenance u/s 125 CRPC can be initiated against a person in any of the districts where-
i. He is.
ii. He OR his wife resides.
iii. He last resided with his wife or mother of his illegitimate child.
2) All the evidences must be taken in the presence of that person or in-absentia, his pleader and can be recorded as per summon-case. Provided that if Magistrate is satisfied that person is willfully avoiding or neglecting the proceedings, he has the power to proceed to hear and determine the case ex-Partee but it can be set-aside within 3 months if reasonable and good cause is shown by that person for not attending the court.
Section 127: Alteration in Allowances-
1) On proof of changing financial circumstances the Magistrate may alter the amount of allowance or interim maintenance of person receiving or person ordered to pay u/s 125 CRPC and make such allowance as it thinks fit.
2) If sum of maintenance is already provided under any proceeding of personal law in a competent Civil Court, then magistrate should cancel or vary any order made under section 125.
In case of Rajnesh v. Neha Criminal Appeal 730 of 2020 the Court held, if maintenance is allowed in any other proceeding of personal laws, then it should be intimidated to the court so that it can take into consideration for ordering maintenance allowances or grant an adjustment or set-off of the said amount, this view was taken by Court.
3) Where the order u/s 125 CRPC is made in favor of a woman who has either obtained divorce or been divorced, has now re-married or willfully surrender right to maintenance after divorce or has obtained the whole sum after divorce of which she is entitled under customary or personal law applicable to her , then the Magistrate on his satisfaction of same shall cancel the order.
4) Where a civil suit of recovery of maintenance or dowry is pending between parties and in meanwhile order u/s 125 CRPC is made, the Civil court at the time of making decree shall take into consideration the sum recovered from or paid by person who is ordered to make allowances.
Section 128: Enforcement of order of Maintenance
Copy of order u/s 125 CRPC shall be given to person in whose favor it is made or to person who has to pay without taking any payment and it may be enforced at any place by any Magistrate in whose jurisdiction the person against whom it is made is, after Magistrate being satisfied as to the identity of the parties and the non- payment of the allowance due.
Author: kashish gupta,
Invertis University, 5th year
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