Maintenance under Section 125 of Code of Criminal Code

INTRODUCTION

Section 125 of CRPC lays down a Secular law for the maintenance of Wife , Child or Parents. This section helps giving monetary assistance to the vulnerable avoiding situations like Vagrancy and Poverty. So objectively the CRPC’s maintenance clause aims to advance social fairness and safeguard weaker people who are unable to support themselves.

The term maintenance has not been defined in the code but it has been adjudged by the apex court to have the same import as under Section 3(b) of the Hindu Adoption and Maintenance Act, 1956.

According to the Hindu Adoption and Maintenance Act, 1956, maintenance includes “provision for food, clothing, residence, education and medical attendance and treatment. In the case of an unmarried daughter, it also includes all reasonable expenditure of an incident to her marriage”. Besides the Personal Laws :

• Hindu Marriage Act
• Hindu Adoption and Maintenance Act
• THE MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS ACT, 2007 

Code of Criminal Procedure also provides for maintenance on the fulfilment of certain essential conditions.

Essential Conditions under of Maintenance under section 125:

Section 125 says that Order for maintenance of wives, children and parents.

1. If any person having sufficient means neglects or refuses to maintain-
   • his wife, unable to maintain herself, or
   • his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
   • 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
   • his father or mother, unable to maintain himself or herself,
     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.
     Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.
     Explanation.- For the purposes of this Chapter,
     ” minor” means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875 ); is deemed not to have attained his majority;
     ” wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
2. Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance.
3. If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month’ s allowances remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:
   Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.
   Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.
   Explanation.- If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’ s refusal to live with him.

4. No Wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.
5. On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.

Essentials of Maintenance:

After persusal of the above provision enumerated under section 125 we can say that Maintenance under Cr.P.C is not granted to everyone and under any circumstances. The code, under Section 125, vests the right to claim maintenance only upon the wife, minor children, unmarried daughter and parents and under special circumstances which are as follows :

Following Essential conditions for claiming of maintenance may be drawn from section 125 :

1. Sufficient means to maintain:
   According to Section 125(1), maintenance can be claimed from a person only if he has “sufficient means” to maintain the person or persons claiming such maintenance. The expression “sufficient means” is subjective since sufficient for one may not be sufficient for another.
   Also, the term “means” may include money, property, business etc. which has also been not specified by the law.
   Case Laws:
   Jagdev vs State of U.P. 1995 Allahabd High Court:
   It was held that Husband cannot escape from the responsibility by renouncing the world or to become Sadhu. Court observed that it’s the potential of person to earn which is under recognition and not the actual income.
   Ashok Kumar vs 6^th Additional Session Judge:
   In this case wife left the husband due to his impotency. This is sufficient cause and husband has to maintain wife.
   Daniel Latifi v. Union of India: According to Section 125 of the CRPC ,the Supreme Court determined that Muslim women have the right to maintenance after the Iddat period. The Court ruled that the CRPC’s provisions applied to all citizens, regardless of their faith, and that the Muslim Personal Law lacked the authority to supersede the CRPC’s rules.

2. Neglect or Refusal to Maintain:
   Section 125 (1) states that there must be clear dereliction or refusal to maintain the claimant on the part of the respondent. Such neglect or refusal can be expressed or implied and by words or by conduct. The courts have inclined towards a liberal interpretation of the expression “neglects or refuse to maintain”. No straight jacket formula can be established to determine whether the wife or any other claimant could successfully prove that the person neglected or refused to maintain him/her.

3. A person claiming Maintenance must be unable to maintain itself:
   It is a very important condition for granting maintenance that a person who is claiming maintenance must be unable to maintain himself/herself.
   For example– If a wife is earning well, then she can not claim maintenance under this Section.
   In the case of Abdulmunaf v Salima, it was held that the wife who is hale and healthy and is sufficiently educated to earn for herself but refuses to earn from own and claim maintenance from her husband will be entitled to claim maintenance but that her refusal to earn under the circumstances would disentitle her to get complete amount of maintenance. Now, unable to maintain herself in Section125 (1) (a) does not mean that the wife should be “absolute destitute and should be on the street, should beg and be in tattered clothes”. The expression connotes that the person has no other sufficient means to maintain himself/herself than the person against whom the maintenance is claimed. The inability to maintain oneself has nothing to do with the earning capacity of the claimant.

Who Can Claim Maintenance?

Section 125 of Cr.PC deals with “Order for maintenance of wives, children and parents” According to Section 125(1), the following persons can claim and get maintenance:

• Wife from her husband,
• Legitimate or illegitimate minor child from his father,
• Legitimate or illegitimate minor child (physical or mental abnormality) from his father,
• Father or mother from his son or daughter.

1. Wife
   Wife as defined under section 125 is: –
   • Who has been divorced by her husband or obtained divorced from her husband. It means that it is immaterial that who has filed application for divorce.
   • She has not remarried.
   • She is not able to maintain herself.
     Case Laws:
     Chanmuniya v Virendra Singh, the Supreme Court has defined Wife and it includes even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time. Strict proof of marriage should not be a precondition of maintenance under Section 125 of the Cr.PC.
     Yamunabai Anantrao Adhav v Ranantrao Shivram Adhav, the Supreme Court held that marriage of women in accordance with Hindu rites with a man having a living spouse is completely nullity in the eye of law and she is not entitled to benefit under Section 125 of the Cr.PC.
     Narinder Pal Kaur Chawla v . Manjeet Singh Chawla
     The husband did not disclose the fact of his previous marriage to wife and subsequently married the appellant and they remained as husband and wife for a substantive period of time. The Delhi High Court opined that a second wife, whose marriage is illegitimate, has a right to be maintained under Section 18 of the Hindu Adoptions and Maintenance Act 1956 because this is such a case where , if maintenance is not provided to the wife, it would act as an encouragement to the respondent in defrauding the second wife.
     Right of Muslim Woman to claim maintenance u / s 125 Cr.P.C. after iddat period ( Period of a woman must observe after the death of her husband or after a divorce during which she may not marry another man):
     Prior to Mohammad Ahmed Khan v. Shah Ban Begum, a Muslim wife was not entitled to claim maintenance after the completion of her iddat period. This position was changed by the Supreme Court in Mohammad Ahmed Khan v. Shah Bano Begum 1985:
     Shah Bano was a 62 – year – old Muslim woman. Her husband divorced her and she filed a criminal suit in the Supreme Court of India. She claimed maintenance and the same was granted in her favor. It was held that a Muslim wife is entitled to the right to claim maintenance under Section 125 of Criminal Procedure Code even after the expiry of iddat period as long as she is not remarried and she is not able to sustain herself from the dower received at the time of divorce.
     Exception: In following circumstances wife cannot claim maintenance, If

• • • • • • She is living in adultery or
          • She refused to stay with him without sufficient reasons or
          • Husband and wife are living separately with mutual consent
          • If order is made by civil court to that effect
          • Remarriage of such woman

2. Legitimate or Illegitimate minor child:
   “Minor’ means a person who, under the provisions of Section 3 of the Indian Majority Act, 1875 is deemed not to have attained his majority ie., above the age of 18 years.
   Minor Son whether Legitimate or Illegitimate is entitled to get maintenance under Section 125 of Cr.PC.
   If the Minor Daughter whether Legitimate or Illegitimate is unmarried, then she is entitled to get maintenance from her father and if she is married, then she is also entitled to get maintenance from her father but the magistrate has to be satisfied that her husband has not essential and sufficient means for the maintenance of his minor wife.

• • • • It is immaterial whether such a child is legitimate or illegitimate, male or female, married or unmarried.
      • If such a minor is married daughter, the liability of father to maintain her will continue till she attains the age of majority if her husband is a minor too.
      • After attaining majority a child is not entitled to claim maintenance from father. But if such child is unable to maintain itself by reason of any physical or mental abnormality or injury, such liability continues. A major married daughter cannot claim maintenance from her father even if the above conditions are fulfilled. In such a case it is the husband’s responsibility to maintain her.
      • The right of child to claim maintenance from father is individual and independent of the right of the mother. Hence the child is entitled to claim maintenance from father even if the mother is unchaste or of bad character or is not entitled to maintenance for any other reason.

        Shahbuddin v State of UP: A minor daughter attaining majority during the pendency of the application for maintenance was held entitled to maintenance up to the date of majority.

3. PARENTS

• • • Both the mother and the father, whether natural or adoptive, can claim maintenance from any one or more of their children.
    • Married daughter can also be liable to maintain her parents.
    • A step-mother can claim maintenance only if she is a widow and does not have natural-born sons or daughters.
      Case Laws :
      Baban Alias MadhavDagaduDange v. ParvatibaiDagaduDange, The High Court of Bombay observed that according to the definition given under the General Clause Act, the term “Father” includes both biological as well as an adoptive father. Whereas the General Clause Act has not expressed the term “Mother”, that does not mean that the term should be taken in a restrictive sense. Now if the term “father” and “son” is given a wider interpretation, then there is no valid reason that the term “mother” shouldn’t be given the same wider interpretation so as to include “adoptive mother as well”.
      Kirtikant D. Vadodaria v. State of Gujarat and Ors, the Hon’ble Supreme Court held that “a childless stepmother may guarantee support from her step-son provided she is a widow or her mate, if living, is unequipped of supporting and looking after her”.
      However, the Hon’ble High Court of Karnataka in Ulleppa v. Gangabai provided its view to the judgment pronounced by the Hon’ble Supreme Court in the case. The court observed that if it is proved that the stepmother has alternative modes of supporting herself, she may be unable to get support from her stepsons.

Nature of proceedings :

Though the subject matter of Secs. 125-128 is civil in nature, the primary justification for their inclusion in the Cr.P.C. is to provide remedy speedier and more economical than that available in civil courts. Section 126 deals with the procedure for maintenance. This section says that proceedings under section 125 may be taken in following district.

• A wife can file maintenance proceedings in any place where :
• • husband resides; or
  • wife resides; or
  • husband is physically present at the particular point of time; or
  • husband last resided with wife.

• Parents can file maintenance proceedings in any place where :
  • they reside; or
  • the child resides.
    Following are some other points which throws light upon the nature of proceedings in Maintenance Cases under this chapter.
    • • Failure to maintain one’s wife and children is not made a punishable offence by the Code, and hence, the person proceeded against is not an accused. So also, an application under Sec. 125 is not a complaint within the meaning of Sec. 2(d) of the Code.
      • Further, Sec. 126(3) empowers the court to make such orders as to costs as may be just. Further, where the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is willfully either avoiding service or neglecting to attend the court, he may proceed to hear and determine the case ex parte. He has also the power to set aside the ex parte order for good cause shown [Proviso to Sec. 126(2)].
      • Nafees Ara v Asif Saadat Ali AIR 1963 All 143: An inquiry under Secs. 125-126 is not a trial, nor the result of such inquiry can be considered as a conviction or acquittal. Therefore, Sec. 300 of the Code does not apply and a second application under Sec. 125 is not barred.
      • Michu Devi, 1975 CILJ 1694 (Pat): No period of limitation has been prescribed for filing an application for maintenance.
      • Dwarika Prasad vs Bidyut Dixit 1999: An order passed under Sec. 125 is ‘summary proceeding’ order and does not determine the rights of the parties.
      • An application for obtaining maintenance u / s 125 must positively aver that the applicant is unable to maintain himself or herself.
      • All evidence in such proceedings shall be taken in presence of the person against whom the proceedings were taken.
      • All the evidence is to be recorded in the manner prescribed for a summons case.
      • Dahyalal v Bai Madhukanta AIR 1965 Guj 247: Similarly, an order passed under Sec. 125 is no bar to a suit for maintenance in a civil court. If there is an inconsistency between the decision of the criminal court and the civil court, the decision of the latter prevails, although ordinarily the decision of the civil court is irrelevant in a criminal proceeding.
      • Ead Ali v Lal Bibi (1913) 41 Cal 88:
      • A claim for arrears of maintenance abates on the death of the husband and cannot be thereafter enforced against his estate. The right to receive maintenance is a purely personal right created by an order of a criminal court; there is no charge created on property by the order for maintenance, and the maintenance Cannot, therefore, be held to be alienable property.

Limitation under section 125:

As per section (3) of Section 125 CrPC , no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due..

Further, as per Shantha Versus. B.G. Shivnanjappa, (2005) 4 SCC 468, the Liability to pay maintenance is a continuing liability and filing successive applications u/s 125(3) CrPC cannot be insisted upon.

Hence, legally the interim maintenance can claim from the date of order for the maximum period of 3 years.

Alteration in Allowances (Section 127):

If a change is the circumstances is shown on the part of claimant of maintenance allowance, the Magistrate has the power to alter the amount of maintenance [Sec. 127(1)]. The phrase ‘change in circumstances’ refers to a change in the pecuniary or other circumstances of the party paying or receiving the allowance which would justify an increase or decrease of the amount originally fixed.

Alteration in allowance means an order to increase, decrease or remove/cancel the allowance which was ordered by the Magistrate under Section 125.

Under Section 127 of The Code of Criminal Procedure, 1973:

According to Section 127(1), if a magistrate ordered to give allowance for maintenance under Section 125 according to the conditions of parties at that time, but if the present conditions of parties have changed, then he can also order to alter the allowance. For example-

• Husband had a well-settled job and means for maintenance; on this basis the Court has ordered him to maintain his wife and to allowance under Section 125. But in the present condition, the husband has no job and means for maintenance. Then, the Court can alter the allowance and can reduce the amount of allowance.
• If a wife was not having any job or she was unable to maintain herself and she got the order of allowance under Section 125. But after some months, she is well settled and she has the means to maintain herself. In this case, the Court can order to remove or cancel allowance.

According to Section 127(2), Magistrate shall cancel or revoke any order given under Section 125 by him, if it appears that it should be cancelled in consequences of any decision of the competent Civil Court. For example- If Magistrate has ordered to give allowance to wife after divorce but Civil Court has ordered to live together. Then, Magistrate has to revoke his order which was given under Section 125.

According to Section 127(3), where an order has been made in favor of women under Section 125, then the magistrate can cancel the order in the following case:

• If a woman is remarried after divorce.
• If a woman has taken allowance under any personal laws after divorce.
• If a woman has voluntary leave her right to maintenance.

According to Section 127(4), the Civil Court shall take into account the sum which has been paid to such person as monthly allowance for maintenance and interim maintenance under Section 125 at the time of making any decree for the recovery of any maintenance or dowry.

Case Laws :

Shiela Rani v Durga Pershad AIR 1965 Punj 79:

A decree for restitution of conjugal rights obtained from a civil court does not necessarily put an end to an order for maintenance. It is within the discretion of the Magistrate to cancel or vary the order if need be.

Prafulla K. Panda v Amra Kumari Panda, 1996 CrLJ 553 (Ori):

Thus, the amount of maintenance can be reduced if the person paying the amount has retired or ailing in a hospital or the claimant got a job. Rising cost of living results in the change of circumstances.

Enforcement of order of maintenance (Section 128):

Section 128 deals with “Enforcement of order of maintenance”. According to this Section, the following are the conditions for enforcement of the order of maintenance:

• Copy of order under Section 125 is given to that person free of cost in whose favour it is made. In case the order is in favour of children, then the copy of the order will be given to the guardian of children.
• If any Magistrate has made an order under Section 125, then any Magistrate of India can enforce this order where that person lives who have to give maintenance.
• The Magistrate has to satisfy two conditions before enforcement of order:
  • Identity of parties, and
  • Proof of non-payment of allowances.
• The person who is ordered to pay maintenance must obey the court order. The failure to pay maintenance without sufficient reason will result in a court warrant for collecting the amount due. The court warrant can attach any immovable property or salary of the person. If the person does not pay maintenance even after the warrant is executed, the person is liable to imprisonment for a maximum of 1 month or until the amount is paid, whichever is earlier. The application for enforcement of maintenance must be filed within 1 year from the date on which it became due. Otherwise the application will be dismissed.

Maintenance and Live in Relations

Maintenance under Live-in Relationship

Wife in a narrower interpretation is ‘A woman who is a legally wedded partner of a Man’. It includes those partners only who are legally married i.e. as per the law of their land. So according to the traditional narrower interpretation of the wife definition, only those women who are legally married to their husbands were safeguarded of their rights under the Constitution of India. But Judiciary in the recent times of last two decades has developed a broader interpretation of the term ‘Wife’, which includes even those women also, who are living with a man as spouses but are not legally married to one another. The idea of expanding the interpretation of the term ‘wife’ is to safeguard the interest of all the women who are living in a Live-in relationship and prevent the misuse of the law by partners in such relationships. A live-in relationship where a man and a woman are living in the same household for a long period of time as akin to being spouses shall be called legitimate partners and the same marital laws as a husband and a wife will apply to them.

According to the 2003 report of the Malimath Committee on Reforms of Criminal Justice System, the recommendation to broaden the ambit of the word ‘wife’ under Section 125 CrPC in the new amendment to include a woman who was living with a man without marriage but like his wife for a reasonably long period of time.

In the landmark case of Chanmuniya v. Virendra Kumar Singh Kushwaha and another2011, the paragraph 42 of the said judgment says

“We are of the opinion that a broad and expansive interpretation should be given to the term “wife” to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time, and strict proof of marriage should not be a precondition for maintenance under Section 125 CrPC, to fulfill the true spirit and essence of the beneficial provision of maintenance under Section 125. We also believe that such an interpretation would be a just application of the principles enshrined in the Preamble to our Constitution, namely, social justice and upholding the dignity of the individual.”

Section 125 of the Code of Criminal Procedure has enshrined the duty to provide maintenance to a wife/minor children/old age parents, to avoid destitution and the situation of homelessness. The Apex Court of India instead of adding a new concept of Maintenance to a Live-in partner in the Sec 125 CrPC, they have broadened the interpretation of the term ‘wife’ which also includes those relationships also who are not legally married but are considered to be a legitimate relationship. For a live-in couple to consider themselves as a couple in nature of marriage certain conditions were issued by the supreme court in the case stated below.

In the case of D.Velusamy vs D.Patchaiammal 2010, it was observed by the SC that a woman in a Live-in relationship is not qualified for maintenance under sec 125 crpc unless she fulfills certain parameters/conditions. SC further observed that couples spending weekends together or a one-night stand would not be amount to be considered a relationship in nature of marriage. A bench comprising Justices Markandey Katju and T S Thakur said that to get maintenance, a woman even if not married has to fulfill the following four conditions.

Conditions Woman must Satisfy for Maintenance under Live-in Relationship

• The couple must hold themselves out to society as being akin to spouses.
• They must be of legal age to marry.
• They must be otherwise qualified to enter into a legal marriage, including being unmarried.
• They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.

In another Supreme Court case of Madan Mohan Singh v. Rajni Kant 2009, the Court held that, the live-in relationship if continued for a reasonably long period of time, cannot be termed as a “walk-in and walk-out” relationship and that there should be a presumption of marriage between the parties living in such live-in relationship. By such approach of the Court, it can be concluded that the Court is in favor of creating a long-term living relationship as a marriage rather than giving or making it a new concept like a live-in relationship.

In Indra Sarma v. V.K.V. Sharma 2013 as to when a live-in relationship would fall within the expression “relationship like marriage”, the Bench said that the fact that twin children were born out of such a relationship itself shows the intention of the woman to treat this relationship as a long term living relationship and therefore she is entitled to claim interim maintenance.

InAbhijit Bhikaseth Auti v. State Of Maharashtra and Others 2009: the SC observed that it is not necessary for a woman to strictly establish the marriage to claim maintenance under sec. 125 of Cr.P.C. Therefore a woman who is not the wife of a man and merely just living in a relationship under one roof can be entitled to claim maintenance under the same section.

Conclusion:

Chapter IX of the Code of Criminal Procedure is essential for the protection of the rights of the divorced wife, children and aged parents. It is made to protect them from unusual livelihood.

Maintenance is the duty of everyone who has sufficient means for the same. In this chapter of Cr.PC, there are various provisions given related to maintenance like who is entitled to maintenance , essential conditions for granting maintenance . procedure of maintenance, Alteration of the previous order. enforcement of order of maintenance etc.