The elderly, as a distinctive group of the world population, are entitled to a comfortable and secure environment with their needs addressed. The provisions in section 125(1) is a very special provision enabling the Magistrate to make an order against a son or daughter for payment of a monthly allowance for the maintenance of the father or mother who is unable to maintain herself or himself. The provision is one of the general application and is not related to the personal law of the parties. Implicit in this provision, therefore, is the statutory recognition of the obligation that a son who has sufficient means is bound to maintain a father or mother who is unable to maintain themselves. The amount of the maintenance shall be purely the discretion of the Court.
Section 125
If any person having sufficient means neglects or refuses to maintain (d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct.
Essential conditions for granting maintenance:
Giving a plain meaning to the language used in section 125(1) and to the provisions relating to the father and mother in Clause (d) thereof, the only two circumstances which have to be gone into for the purpose of deciding a claim under section 125(1) appear to be that the father or mother must be unable to maintain himself or herself and secondly, the person against whom an order under section 125(1) is sought must have sufficient means to maintain the father or mother and yet neglects or refuses to maintain the father or mother. If a man is healthy and able-bodied, he must be held to possess the means such as real property or definite employment. Fulfillment of parental obligation is not a pre-condition to claim maintenance.
Procedure:
Legal provisions regarding Procedure for Maintenance are mentioned under section 126 of the Code of Criminal Procedure, 1973. The proceedings under Section 125 are in the nature of civil proceedings, the remedy is a summarily one and the person seeking the remedy is ordinarily a helpless person. So the words in Section 126(1) should be liberally construed.
- An application for maintenance may be filed against any person, liable to pay the same, in any district where the son/daughter lives. [i] The benefit given to wife and the children to initiate proceeding at the place where they reside is not given to the parents.
- The cases of maintenance under Section 125 are dealt by Judicial Magistrate of First Class. He may pass an order for maintenance after scrutinizing the produced evidence.
- Once a maintenance order is passed, a copy of the same must be supplied to the claimant free of cost.
- Maintenance allowance shall either be payable from the date of order of payment or from the date of the application made for maintenance, depending on court’s judgment 125(2).
- The person who is ordered to pay maintenance must obey the court order. However, failure to do so without sufficient reason, the court can issue a warrant against such person for collecting the amount due or can attach any immovable property or salary of such person125(3)
- All evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proceed to be made, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed for summons- cases 126(2)
Daughter is also liable to pay maintenance to parents-
An application under section 125(1)(d) of the code, by a father claiming maintenance from his married daughter is perfectly maintainable. The Supreme Court in Vijay Manohar Arbat v. Kashirao[ii], held that the word ‘his’ in clause (d) of Section 125(1) (d) includes both male and female children. Therefore, a married daughter is also liable to maintain her parents. The court further observed that apart from any law, the Indian society casts a duty on the children to maintain the parents and this social obligation equally applies to a daughter. Before ordering maintenance in favor of a father or a mother against their married daughter, the court must be satisfied that the daughter has sufficient means of her own independently of the means or income of her husband, and that the father or the mother, as the case may be, is unable to maintain himself or herself.
Adoptive mother can claim maintenance-
The Bombay High Court in Baban Alias Madhav Dagadu Dange v. Parvatibai Dagadu Dange[iii] observed that according to the definitions given in the General Clauses Act, the expression “father” includes both natural as well as adoptive father. It is true that the General Clauses Act has not defined the expression “mother”. But that does not means that the expression should be taken in its restrictive sense. Now if expression “father” and “son” is to be given wider interpretation, there is no valid reason why the expression “mother” should not be given similar wider interpretation so as to include an “adoptive mother” as well.
Step-mother can claim maintenance:
The Hon’ble Supreme Court in Kirtikant D. Vadodaria v. State of Gujarat and Ors. held that “a childless step-mother may claim maintenance from her step-son provided she is a widow or her husband, if living, is also incapable of supporting and maintaining her”.
Claiming Maintenance under Maintenance and Welfare of Parents and Senior Citizens Act, 2007-
The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 seeks to make a legal obligation for children and legal heirs to provide maintenance to senior citizens. It even permits state governments to establish old age homes in every district. The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 act authorizes State governments to set up maintenance tribunals and appellate tribunals to decide the matters related to maintenance of the elderly. The act gives a right to the senior citizens and parents to apply to a maintenance tribunal seeking a monthly allowance from their children or legal heirs. Parents can claim maintenance either under Section 125 of Code of Criminal Procedure, 1973 or under Maintenance and Welfare of Parents and Senior Citizens Act, 2007. However, they cannot claim maintenance under both the acts. The condition prior to claiming maintenance by the above mentioned people under this Act is that the persons must be unable to maintain themselves from their own earnings.[iv]
Provision of Maintenance for Parents in Other Countries-
In France, according to art. 205 of the Civil Code, “children owe maintenance to their father and mother or other ascendants who are in need” and according to art. 206, “sons and daughters-in-law owe maintenance to their father- and mother-in-law under the same circumstances. ”The father or the mother (or both) must be in need, that is to say he or she cannot sustain themselves as their estate and revenues are too little. It is up to the father or mother to prove this and if a dispute arises, a judge will settle it. Children are personally obliged to contribute, in proportion to their respective wealth.
When parents and children do not live in the same country, the Hague Convention of October 2, 1973 on the law applicable to maintenance obligations applies (signatories include both the USA and the EU). Under this, for example, if a parent lives in Britain but their children are in France, the parent could apply to a French law to enforce the maintenance responsibilities
In Singapore, Elderly parents who can’t support themselves can seek financial aid from their children under the country’s Maintenance of Parents Act. They can file claims in cases where children are capable of supporting them, but fail to do so. A tribunal may award a monthly allowance or lump sum. China and Bangladesh also have similar laws.
Currently, thirty states in the U.S. as well as Puerto Rico have passed these filial (due from a son or daughter) responsibility laws. In a nutshell, these filial support laws require adult children to financially support their parents if they are not able to take care of themselves or to cover unpaid medical bills, such as assisted living costs. This also includes food, clothing, shelter, and health care/medical needs of the parent.
Illustrations-
1. If a son X refuses to maintain his Father Y, his father can claim maintenance under Sec. 125 of the code, if the son is having sufficient means and he neglects to maintain.
2. If a father or mother is neglected to be maintained by his son or daughter, he/she can opt to claim maintenance either under section 125 of code or under Maintenance and Welfare of Parents and Senior Citizens Act, 2007
Frequently Asked Question:
1. Can a person claim maintenance under both the acts i.e. section 125 Crpc and Maintenance and Welfare of Parents and Senior Citizens Act, 2007?
No, a person cannot claim maintenance under both the acts. He/she can either claim maintenance under section 125 of Crpc or under Maintenance and Welfare of Parents and Senior Citizens Act, 2007.
2. What is the nature of proceeding under section 125 Cr PC?
The jurisdiction of magistrate under chapter IX Cr PC is not strictly a criminal jurisdiction. Proceedings u/s 125 Cr.P.C are civil in nature. Also it is summary in nature and intended to provide speedy remedy.
Refernce:
[i] Vijay Kumar Prasad Vs State of Bihar 2004 AIR 2123
[ii] Manohar Arbat vs. Kashirao Sawai & another Air 1987 SC 1100
[iii] Baban Alias vs. Parvatibai dagadu 1978 CriLJ 1436
