Although Criminal Procedure Code is a procedural enactment, but it also confers some substantive rights, the right of maintenance being one of the most important of such rights. Legal provisions regarding Order for maintenance of wives and children are mentioned under Chapter IX Section 125 to 128 of the Code of Criminal Procedure, 1973. Section l25 of the Code gives effect to the natural and fundamental duty of a man to maintain his wife, children and parents so long as they are unable to maintain themselves. This provision is a measure for social justice and specially enacted to protect women and children.
Object and Scope
The proceedings under these sections are not punitive in nature. The object is not to punish a person for neglect to maintain those whom he is bound to maintain but to prevent vagrancy by enforcing liability by way of summary procedure to provide a speedy remedy to those who are in distress. This is a secular provision as it does not make any distinction between persons belonging to different religions or castes and it has no relationship with personal laws of the parties. In Mohd Ahmed Khan v. Shah Bano Begum[i], the SC held that the provisions of section 125 applies to all. The rights of a destitute wife or a minor claiming maintenance in this chapter and the remedies provided are essentially civil right.
Person Entitled To Get Maintenance (Section 125):
Section 125 which is the pivotal section of this Chapter, provides that following person are entitled to get maintenance if any person having sufficient means neglects/ refuses to maintain–a) His wife, unable to maintain herself, or b) His legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or c) His 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, or d) His father or mother, unable to maintain himself or herself.
A Magistrate of the First Class may pass an order against such a person, ordering him to make a monthly allowance for the maintenance of such child, father or mother, as the case may be, at such monthly rate as such Magistrate thinks fit. In the case of a minor female child who is married, if the Magistrate is satisfied that the husband of such a minor female is not possessed of sufficient means, an order can be made against the father of the child to make such allowance until she attains the age of majority.
Order for maintenance of wife and children
As per Section 125(l) (a) of the Code, if any person having sufficient means neglects or refuses to maintain his wife, unable to maintain 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 at such monthly rate, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct.
The term ‘wife’ appearing in Section 125(1) means only a legally wedded wife and therefore a marriage prove illegal cannot give a wife any right to get maintenance[ii]. The legality of the marriage would be governed by the personal laws applicable to the parties. If the fact of legally valid marriage is disputed, the applicant will have to prove marriage. According to explanation (b) to Section 125(1), the term ‘wife’ includes even a divorced wife but has not remarried. A divorced wife cannot exist unless she was a legally wedded wife.
Under the law the burden is placed in the first place upon the wife to show that the means of her husband are sufficient. There is no dispute that the appellant has the requisite means. But there is an inseparable condition which has also to be satisfied that the wife was unable to maintain herself.
According to Section 125(1)(b) of the Code of Criminal Procedure, if any person having sufficient means neglects or refuses to maintain his legitimate or illegitimate minor child, whether married or not, unable to maintain itself or as per Section 125(1)(c) of the Code, his 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, 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 such child, at such monthly rate, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct.
A child, whether legitimate or illegitimate, whether married or unmarried can seek maintenance from his/her parents. However, where the child is suffering from physical or mental abnormality, he/she can claim maintenance even after attaining majority if such person is unable to maintain herself/himself. A minor married girl can claim maintenance either from her husband or her father or both[iii]. According to first proviso appended with the section if the husband of the minor married female child is not in possession of sufficient means, the father of such female child will be required to make allowance for her maintenance. However a married daughter who has attained the age of majority is not entitled to claim allowance from her father as she would then come under the category of wife and shall seek maintenance from her husband.
Essential conditions for granting maintenance:
Sufficient means to maintain:
According to Section 125(1) of the Code of Criminal Procedure, the person from whom maintenance is claimed must have sufficient means to maintain the person or persons claiming maintenance. If a man is healthy and able-bodied, he must be held to possess the means such as real property or definite employment.
Neglect or refusal to maintain:
The person from whom maintenance is claimed must have neglected or refused to maintain the person or persons entitled to claim maintenance.[iv]
Person claiming maintenance must be unable to maintain himself or herself:
The person claiming maintenance must be unable to maintain himself or herself. In Abdulmunaf v. Salima[v], it was held that the wife who is hale and healthy and is adequately educated to earn for herself but refuses to earn and claims maintenance from her husband is entitled to claim maintenance but that her refusal to earn under the circumstances would disentitle her to get full amount of maintenance.
In case of maintenance claimed by wife from her husband-
1. She must not be living in adultery
2. She must not refuse, without just ground, to live with her husband,
3. She must not be living separately by mutual consent.
As per second proviso to Section 125(1) of the Code of Criminal Procedure, during the pendency of the proceeding regarding monthly allowance for the maintenance under Section 125(1) of the Code, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct.[vi]
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.
(1) An application for maintenance under Section 125 of the Code may be filed in the court of first class Magistrate in any district
a. Where he is, or
b. Where he or his wife resides, or
c. Where he last resided with his wife, or as the case may be, with the mother of the illegitimate child.
No period of limitation has been prescribed for filing an application for maintenance.
(2) All evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed 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-case. However, if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is willfully avoiding service, or willfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte.
(3) The Court in dealing with applications under Section 125 shall have power to make such order as to costs as may be just. An inquiry under Sections 125 and 126 is not a trial, nor can the result of such inquiry be considered as a conviction or acquittal.
Sec. 127 empowers the Magistrate to alter or modify the order of the maintenance on of (i) a change in the circumstances of the party receiving the maintenance, or (ii) any decision of competent civil court. The party entitled to alteration of the order, can always move to the Magistrate whenever there is a change of circumstances.
Provisions of maintenance in other countries
Alimony (also called aliment (Scotland), maintenance (England, Ireland, Northern Ireland, Wales, Canada), spousal support (U.S., Canada) and spouse maintenance (Australia) is a legal obligation on a person to provide financial support to their spouse before or after marital separation or divorce. The obligation arises from the divorce law or family law of each country. The determination of alimony varies greatly from state to state within the U.S. Some state statutes, including those of Texas, Montana, Kansas, Utah, Kentucky and Maine, give explicit guidelines to judges on the amount and/or duration of alimony. In Texas, Mississippi and Tennessee, for example, alimony is awarded only in cases of marriage or civil union of ten years or longer and the payments are limited to three years unless there are special, extenuating circumstances.
In Canada, spousal support may be awarded upon divorce, under the federal Divorce Act, or upon separation without divorce under provincial statutes. The longer the length of cohabitation and the greater the disparity between each party’s incomes, the larger an award of spousal support will be and the longer the duration will be. In addition to being in a marriage or common-law relationship, courts will look at the conditions, means, needs and other circumstances of each spouse. This includes: The length of time the spouses cohabited; The functions performed by each spouse during the relationship; and Any existing orders or agreements.
1. If a Father X refuses to maintain his minor daughter (unmarried), she can claim maintenance under Sec. 125 of the code. If the father is having sufficient means.
2. If a magistrate finds a marriage between husband and wife illegal, such a wife cannot claim maintenance under Section 125 crpc.
Frequently Asked Questions:
1. 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.
2. Is there any upper limit for grant of maintenance allowance?
After the amendment to section 125 Cr.P.C which is a Central Act, by the Code of Criminal Procedure (Amendment) Act, 2001 which deleted the words “not exceeding five hundred rupees in the whole”, there is no upper limit for deciding the amount of maintenance.
Approved & Published – Sakshi Raje
[i] Mohd Ahmed Khan v. Shah Bano Begum 1985 2 SCC 556
[ii] Savitaben Somabhai Bhatiya Vs. State of Gujarat, 2005 Cr LJ 2141 (SC)
[v] Abdulmunaf v. Salima 1979 Cr LJ 172
[vi] Satish Chandra Gupta Vs. Anita, 1994 A Cr R 631