By Swarnalee Halder, Department of Law, Calcutta University.
What is the provision under Cr.P.C. regarding maintenance?
Under Section 125 Cr.P.C, the following persons are entitled to claim maintenance:
Wife (From husband),
Minor children (From father),
Children with mental or physical disability (From father),
Parents (From son).
A Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowances for the maintenance of wife or such child, father or mother, 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:
Provided that the Magistrate may order the father of a minor female child to make such allowances 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:
Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso that, as far as possible be disposed within 60 days from the date of service of notice of the application to such person.
Courts which are entitled to entertain and decide applications under Section 125 Cr.P.C
Proceeding may be taken against any person before a Judicial Magistrate of any district:-
a) Where such person 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.1
Object of Section 125 Cr.P.C
The Apex court in its Judgment dated November 27, 2007, has ruled “the object of the maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves and who have moral claim to support. Section 125 CrPC is a major means of social justice and is specially enacted to protect women and children. It is meant to achieve a social purpose.The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife”2.
Quantum of maintenance
An upper limit of Rs 500 per month as maintenance had been fixed under the Cr.P.C. This unrealistic and extremely low upper limit was removed by an amendment as late as 2001, and discretion was conferred on the Magistrate to decide on the amount to be paid as maintenance. The amendment specifically mentioned that the Magistrate could grant interim maintenance during the pendency of proceedings over monthly allowance.The Supreme Court examined Section 125 of the Cr.P.C. prior to and after the 2001 amendment. It noted that the amendment removed the ceiling of Rs 500 and left the discretion of fixing a monthly maintenance amount with the Magistrate. Both prior to and after the amendment, allowance is payable from the date of the order, but the Court can direct payment from the date of application for maintenance.3
The wife to be a legally married woman
“Wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.4
Sub-section (4) of Sec. 125 Cr.P.C. says that no wife shall be entitled to receive an allowance from her husband under this section, if she is living an adultery, or if, without any sufficient reason, she refuses to live with her husband; or if they are living separately by mutual consent.
The words “is living an adultery” means the following of a continuous adulterous conduct and not a single act of adultery.
Adultery herein referred to does not imply to occasional lapse of part of conduct. It is an existing and habitual adultery. It means outright adulterous conduct where wife lives in quasi permanent union with whom she commits adultery. The onus of proof lies on the husband but the wife must be given an opportunity of adducing rebutting evidence.
Wife without sufficient reason refuses to live with her husband- A wife is not entitled to allowance if she without any sufficient cause refuses to live with her husband.5
Parents entitled to claim maintenance
In Dr. Mrs Vijay Manohar Arbat v. Kashirao Rajaram Sawai and another6 , the Supreme Court said – “The parents will be entitled to claim maintenance against their daughter provided, however, the other condition as mentioned in the section are fulfilled. Before ordering maintenance in favour 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 father or the mother, as the case maybe, is unable to maintain himself or herself.”
Enforcement of order of maintenance
Section 128 Criminal Procedure Code, 1973, provides:
A copy of order of maintenance shall be given without payment to the person in whose favour it is made, or to his guardian, if any, or to the person to whom the allowance is to be paid; and such order 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.9
Denial of maintenance
Smt. Aradhana Tiwari vs Deepak Tiwari on 16 July, 2015
CRR-604-2010 -Madhya Pradesh High Court which denied maintenance to wife under Cr.P.C. 125 on her appeal to HC since the Court agreed with the trial court’s observations that according to evidence led by husband and also wife’s own admissions, it was the wife who was not staying with him out of her own free will. She was never ill-treated by her husband or in-laws but she
was unable to adjust herself in her matrimonial home; therefore, she did not want to stay with her
husband and wanted to get rid of him10.
Firdos Mohd. Shoeb Khan vs Mohd. Shoeb Mohd Salim Khan – Mumbai family court, 2015
As per a recent Mumbai family court judgment, qualified wife has been denied maintenance. The petitioner had admitted to her having worked earlier, so it’s not based merely upon her educational qualifications.
Important part of judgment is reproduced below:
16. The learned counsel for respondent has argued that the petitioner is well qualified and she is earning an amount of Rs.50,000/per month, she is having sufficient income for her maintenance. It is argued by the learned counsel for respondent that before the police station Worli on 12.11.2011 the petitioner has given statement u/s 161 of Cr.P.C. The petitioner has admitted that she has completed degree in Food and Science Nutrician, she had worked as a dietician, she is Post Graduate in Dietician field, she had also worked with Larcen and Tubro etc. but at present she is not working. The above statement made by the petitioner clearly shows that she is well qualified and able to do job. The respondent though submitted that she is having huge investment in crores of rupees but nothing is placed on record. It is clear from the statement of petitioner that petitioner is well qualified having capacity to earn. The Hon’ble Madhya Pradesh High Court in the case of “Mamta Jaiswal Vs. Rajesh Jaiswal held that well qualified wife is not entitled to remain as an idle and claim maintenance from her husband. In short, the wife is not entitled to advantage of her own wrong, she cannot harass the husband on the count of maintenance though she is capable to earn. In the present case in hand, the petitioner’s wife is very qualified, she has worked with various companies. This admitted by herself, now she is claiming that she is a housewife, having no source of income. The wife who is well qualified and claiming maintenance by sitting idle is not entitled to get maintenance, secondly she herself has admitted that though her husband is connected with garment business but he has share worth rs.5,000/only. Considering the above circumstances, it is clear that the wife is having good capacity to earn. According to respondent, she is earning but no any documentary evidence is on record that she is earning. Nothing is on record to prove the income of respondent at this primary stage. In such circumstances, in my view, at this juncture petitioner is not entitled to get maintenance. Hence I pass the following order :
1. The application is rejected.11
Thus, it is understood from the above analysis that the provision of section 125 of Cr.P.C. is important. Though it can be misused, but it is a vital armor for women suffering vehemently. With time, there has been vast improvement in law, and in the application of S. 125 CR.P.C for muslim women. Not only did the Shah Bano case [1985 AIR 945, 1985 SCC (2) 556] challenge muslim personal (Sharia) law, it triggered a debate and paved the way for muslim women’s fight for justice. It has been 25 years since the Supreme Court’s landmark judgment in the Shah Bano case was passed, which ruled that a muslim woman is entitled to maintenance after divorce. The ruling provides hope and a solution for many muslim women even now.12 But, still today, women have to fight for their rights even after this progressive Judgment.
2 Chaturbhuj vs Sita Bai on 27 November, 2007
4 125 Cr.P.C
5 Gender Justice : Women and Law in India – Monica Chawla.
6 AIR 19587 SC 1100.
7 (1985) SCC 637
8 1994 Cr LJ 2826