Maintenance of wives, children and parents

The word ‘Maintenance’ is not defined in the Code of Criminal Procedure, 1973. Chapter IX
of the Code deals with provisions for maintenance of wives, children and parents.
‘Maintenance’ in general meaning is keeping something in good condition. ‘Maintenance’ in
legal meaning is money (alimony) that someone must pay regularly to a former wife, husband
or partner, especially when they have had children together. It is the duty of every person to
maintain his wife, children and aged parents, who are not able to live on their own. Section
125 of Cr.PC deals with “Order of maintenance of wives, children and parents”. In this
Section, it is given the name of parties who are entitled to get maintenance, essential
ingredients to claim and get maintenance and order of the first-class Magistrate .In the case
of Mohd. Ahmed Khan v. Shah Bano Begum AIR 1985, Supreme Court delivered a judgement
favouring maintenance given to an aggrieved divorced Muslim woman.

Object of the provision

The main object of incorporating the provisions in the Code is to provide for a speedy,
effective and inexpensive remedy against persons who neglect or refuse to maintain the
persons entitled to maintenance. Section125 of Cr.PC deals with “Order for maintenance of
wives, children and parents”. According to Section 125(1), if any person having sufficient
means neglects or refuses to maintain his:

1. Wife unable to maintain herself,

2. Legitimate or illegitimate minor child, whether married or not, unable to maintain
itself,
3. Legitimate or illegitimate minor child (not being married daughter) who has attained
majority, where such child by reason of any physical or mental abnormality or injury
is unable to maintain itself,
4. Father or mother, unable to maintain himself or herself can claim maintenance

In the case of Chanmuniya v. Virendra Singh AIR 2010, 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.

In the case of Smt. Yamunabai Anantrao Adhav v. Ranantrao Shivram Adhav AIR 1982,
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.

A wife can claim and get maintenance from her husband in the following conditions:

 She is divorced by her husband, or

 Obtained divorce from her husband,
 She has not remarried, and
  She is not able to maintain herself.

A wife cannot claim and get maintenance from her husband in the following
conditions:

 Wife living in adultery, or

 Refuses to live with husband without any valid reasons, or
 Living separately by mutual consent.

Legitimate or illegitimate minor child

Son

‘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 i.e., above the age of 18 years.

Minor Son (Legitimate or Illegitimate) is entitled to get maintenance under Section 125 of
Cr.PC.

Daughter

If Minor Daughter (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 his father but the magistrate has to be satisfied that her husband has not essential and
sufficient means for the maintenance of his minor wife. In the case of Shahbuddin v. State of
UP AIR 2005, a minor daughter attaining majority during the pendency of the application for
maintenance was held entitled to maintenance up to the date of majority.

Legitimate or illegitimate abnormal child who has attained majority

If any major child (Legitimate or Illegitimate) is abnormal (mentally or physically unfit), then
the father of that child has to maintain him and he can claim maintenance on this ground of
abnormality.

Father or mother

 Natural father and mother can claim maintenance.

 Mother includes adoptive mother, she can claim maintenance from adoptive son.
 Father can claim maintenance, it is a statutory obligation, this claim cannot be
defeated by pleading that the father failed to fulfil his parental obligation.
 A childless stepmother can claim maintenance.

In the case of Pandurang Bhaurao Dabhade v. Baburao Bhaurao Dabhade AIR

1979, Bombay High Court has held that the father or mother can claim maintenance under
Section 125(1)(d) if he or she is unable to maintain himself or herself. But it is also important
that if parents claim maintenance to their children, children must have sufficient means to
maintain their parents and yet neglects or refuses to maintain the father or mother.
126. Procedure.

(1) Proceedings under section 125 may be taken against any person 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.

(2) 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: Provided that if the Magistrate is satisfied that the
person against whom an order for payment of maintenance is proposed to be made is wilfully
avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to
hear and determine the case ex parte and any order so made may be set aside for good cause
shown on an application made within three months from the date thereof subject to such
terms including terms at to payment of costs to the opposite party as the Magistrate may think
just and proper.

(3) The Court in dealing with applications under section 125 shall have power to make such
order as to costs as may be just.

If the person against whom an order for payment of maintenance is proposed to be made is
wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may
proceed to hear and determine the case ex-parte.

Ex-parte: Ex parte is a legal term defined as one of the involved parties are not present or not
represented.

However any order so made may be set aside for good cause shown in an application made
within three months from the date of the order.

Shamin Bano v. Asraf Khan

[2014 STPL (Web) 286 SC]

Facts of the case: The marriage of the appellant was performed with the respondent on 17
November, 1993. During her martial life the appellant was meted with cruelty and torture by
the husband and his family members regarding demands of dowry and she filed a report
against them. A criminal case was initiated and the same ended in acquittal.
Decision:

After referring to a number of texts and principles of Mohammedan Law, the larger Bench
opined that taking the language of the statue, as one finds it, there is no escape from the
conclusion that a divorced muslim wife is entitled to apply for maintenance under Section
125 of the Code and that Maher is not such a quantum which can ipso facto absolve the
husband of the liability under the Code, and would not bring him under Section 127(3) (b) of
the Code.

Writing the judgement, ‘Justice Dipak Misra’said:

A divorced Muslim woman who has not remarried and who is not able to maintain herself
after the Iddat period can proceed as provided under Section 4 of the Act against hid
relatives, who are liable to maintain her.” The Bench said: “An aspect which has to be kept
uppermost in mind is that when the marriage breaks up, a woman suffers emotional fractures,
fragmentation of sentiments, loss of economic and social security and, in certain cases,
inadequate requisites for surival. A marriage is fundamentally a unique bond between two
parties. When it perishes like a mushroom, the dignity of the female fame gets corroded. It is
the law’s duty to recompense, and the primary obligation is that of the husband. Needles to
emphasize, thr entitlement provisions have to be made in accordance with the parameters of
law.

Quoting on earlier Constitution Bench verdict, the Bench said that, “a Muslim husband is
iable to make a resoanable and fair provision for the future of the divorced wife which
obviously includes her maintaenance as well.” Such a resonable and fair provision extending
beyond the Iddat period must be made by the husband within the Iddat period. His liability,
arising from Section 3 of the 1986 Act to pay maintenance, “is not confined to the Iddat
period.”(Iddat is the waiting period after a declaration of the divorce.) Allowing her appeal
against this order,the Supereme Court held that, the woman was entitled to maintenance even
after divorce. Thus, it is clear that a Muslim woman is entitled to claim maintenance under
Section 125 CrPC even after their divorce.

In Mohd. Ahmed Khan v. Shah Bano Begum, 1985 Cr. L.J. 875 (S.C.) the Supreme court
Held that Section 125 was applicable to all irrespective of their religion. Clause (b) of Section
125(1) contains no words of limitation so as to justify exclusion of Muslim women. There
had been a lot of hue and cry by Muslim fundamentalist after their revolutionary judgment of
the Apex Court which was truly intended to protect the interest of Muslim women from
oppression.

Essential conditions of granting maintenance

Maintenance under CrPC 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:

1. Sufficient means to maintain herself

If any person has sufficient means for maintenance, then it is his duty to maintain his
wives, children and parents. If sufficient means are not available, then it will be a perfect and
valid defence for people who are legally bound for maintenance of wife, children and parents.
The words "sufficient means" should not be confined to the actual pecuniary resources but
should have reference to the earning capacity. It was held in Rai Bari Behera v. Mangaraj
Behera AIR 1983, that the maintenance has to be determined in the light of the standard of
living of the person concerned, the earning of the husband, his other financial commodities
etc. Insolvency of the husband was not conclusive to determine the maintenance instead his
capacity to work and earn is material. Omission on behalf of the wife to plead that the
husband has sufficient means does not take away her right to get maintenance.

2. Neglects or refuses to maintain

Any person neglects or refuses to maintain his wives, children and parents in mala
fide intention or in any type of egoistic behaviour on the demand for maintenance by them.
Refusal to maintain may be express or implied. It may be by words or by conduct. But once it
is proved that a person has neglected to maintain his wives, children and parents the
Magistrate has the power to make order.

3. The person who claims maintenance must be unable to maintain himself/herself

It is very important condition for granting maintenance that the person who is
claiming maintenance must be unable to maintain himself/herself. e.g., if a wife is earning
well, then she cannot 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 her refusal to earn under the circumstances would disentitle
her to get complete amount of maintenance.

If the husband of a minor daughter does not have sufficient means to maintain her, then it is
the duty of the father to give maintenance. In these circumstances, married minor daughter is
entitled to get maintenance from the father.

ALTERATION IN ALLOWANCE
Alteration in allowance means an order to increase, decrease or removal or cancel the
allowance which is ordered by the Magistrate under Section 125. According to Section
127(1) if a Magistrate ordered to give allowance for maintenance under Section 125
according to the condition of parties at that time, but if the present conditions of parties have
changed, then he can also order to alter the allowance. e.g., if a husband has 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 reduce the amount of
allowance. Another example would be, if a wife was not having any job or she was unable to
maintain herself and she got 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), a Magistrate shall cancel or
revoke any order given under Section 125 by him, if it appears that it should be cancelled in
consequence of any decision of the competent Civil Court. e.g., 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 is given under Section 125.
According to Section 127(3), where an order has been made in favour of women
under Section 125, then the Magistrate can cancel the order in the following cases:
 If the women is remarried after divorce
 If the women has taken any allowance under any personal laws after divorce.
 If the women 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.

ENFORCEMENT OF THE ORDER OF MAINTENANCE

1. If any person is ordered to pay a monthly allowance for maintenance u/s 125(I)
fails without sufficient cause to comply with the order, the Magistrate making such an order
may, for every breach of such order, issue a warrant for levying the amount in the manner
prescribed for levying fines and may sentence such person, for the whole or part of each
month's allowance for the maintenance or the interim maintenance and expenses of
proceeding as the case may be, remaining after the execution of the warrant to imprisonment
for a term which may extent to one month or until payment if sooner made.

Where the order of maintenance is made in favour of the wife (presumably not a
divorced wife) and if the husband offers to maintain her on condition of her living with him
and she refuses to live with him, the Magistrate may consider any grounds of refusal stated
by her and may make an order u/s 125 notwithstanding such offer if he is satisfied that there
is just ground for so doing. It has been further explained that contracting marriage with
another women or keeping a mistress shall be considered to be a just ground for wife's refusal
to live with her husband.

The words "without sufficient cause" in relation to a failure to comply with the
maintenance order should be understood in the light of the explanation.[u/s 125(3)] However,
the Magistrate, while executing the order, cannot consider those very questions which could
have been raised or which were decided when the claim for maintenance was upheld and a
direction for payment of monthly allowance had been made.

2. After the execution of warrant as mentioned above, if the whole or any part of the
amount of maintenance remains unpaid, the Court may sentence the defaulter proceeded
against to imprisonment for a term which may extend to one month or until payment sooner
made. It has been ruled by the Supreme Court that imprisonment imposed under this section
is a mode of enforcement rather than a mode of satisfying the liability. A person ordered to
pay maintenance may not be absolved of his liability merely because he is sent to jail
(Kuldeep Kaur v. Surinder Singh AIR 1989). A warrant of arrest can be issued only if
resource to attachment and sale of property fails. Further salary is property for the purpose of
attachment.

3. In order to facilitate the enforcement of the maintenance order, it has been made
obligatory by section 128 to apply a copy of the order free of cost to the person in whose
favour the order is made, or to his guardian, or to the person to whom the allowance is to be
paid.

4. It has been further provided by Section 128 that such order of maintenance may be
enforced by any Magistrate in any place where the person against whom it is made may be,
on such Magistrate being satisfied as to the identity of the parties and the non-payment of the
allowance due. This provision makes the maintenance order enforceable anywhere in India,
even in a place outside the territorial jurisdiction of the Magistrate who passed the order of
maintenance.