The word maintenance is not defined in the code, however, in layman’s terms, it means keeping in a proper condition. For the purpose of CrPC, it can be equated to the financial support provided for living expenses.
The objective of the maintenance of wives and parents is to prevent vagrancy and destitution and not to penalize any party.
Order for maintenance of wives and parents
Section 125 defines who is entitled, when is it payable and also the disqualifications.
Section 125(1) states the persons eligible for obtaining maintenance:
1) Wife: A wife is entitled to get maintenance from her husband provided she is unable to maintain herself and the husband has sufficient means. She can obtain maintenance if she has divorced or been divorced and has not remarried.
A wife living in adultery or living separately without a valid reason or with mutual consent is not entitled to maintenance.
This code does not cover Muslim women as they have a separate act which is: Muslim Women Protection of rights on Marriage Act.
In the landmark case of Dwarika Prasad Satpathy v. Bidyut Prava Dixit, it was held that the standard of proof of marriage in a Section 125 proceeding is not as strict as is required in a trial for an offence under Section 494 IPC. Hence the strict proof of marriage is not needed.
In Savitaben Somabhai Bhatiya Vs. The state of Gujarat, it was held that if a woman is not lawfully married she cannot invoke section 125.
In Badshah Vs. Urmila Badshah Godse and Another, if the husband concealed first marriage from the second wife, the second wife is entitled to maintenance.
2) Legitimate or illegitimate minor child from father: A son under the age of 18 years is entitled to claim maintenance from his father. An unmarried minor daughter is also entitled. In case the minor daughter is married and her husband is unable to maintain her, she can claim maintenance from her father.
3) legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is by reason of any physical or mental abnormality or injury unable to maintain itself.
4) Father or Mother: Both natural parents, as well as adoptive parents, can claim maintenance from their children. It is important that the children have sufficient means.
The essential conditions for invoking section 125 are:
• Sufficient means for maintenance are available: The magistrate must be satisfied that sufficient means are available with the person from whom maintenance is being demanded. Insufficient means are a valid defence.
• Neglect or refusal to maintain after the demand for maintenance.
• The person claiming maintenance must be unable to maintain himself/herself: The person claiming maintenance cannot be earning well themselves. Though capability of earning and actual earning are different things. In case a woman is capable of earning but does not earn she is not disentitled from claiming maintenance.
• Quantum of maintenance depends on the standard of living: In Kalyan Dey Chowdhury v. Rita Dey Chowdhury Nee Nandy, the Apex court held that 25% of the net salary of the husband would be considered enough. Moreover, maintenance is not just food, shelter and water it depends on the standard of living.
Date of payment
This is defined under section 125(2), it is payable from the date of the order or from the date of the application.
Failure to comply with the order
According to section 125(3), the magistrate can order to issue a warrant levying fines in case a person fails to comply with an order without sufficient cause. On subsequent failure, there may be imprisonment of up to 1 month or payment.
The objective of this section is to ensure that wife, minor children or parents do not suffer in penury. It is a benevolent provision having a social purpose with the primary objective to ensure social justice to the wife, child and parents, who are unable to support themselves so as to prevent destitution and vagrancy.
Section 125 of the Code of Criminal Procedure, 1973.
Dwarika Prasad Satpathy v. Bidyut Prava Dixit [(1999) 7 SCC 675]
Savitaben Somabhai Bhatiya Vs. State of Gujarat, [2005 Cr.L.J. 2141 (SC)]
Shailja & Anr. v. Khobanna [(2018) 12 SCC 199]