Maintenance under Criminal Procedure Code
Written by: K. RAJEEV REDDY
The concept of ‘maintenance’ in India is covered both under Section 125 of the Code of Criminal Procedure, 1973 (Section 125) and the personal laws. This concept further stems from Article 15(3) reinforced by Article 39 of the Constitution of India, 1950 (the ‘Constitution’). Under Indian law, the term ‘maintenance’ includes an entitlement to food, clothing, and shelter, being typically available to the wife, children, and parents. It is a measure of social justice and an outcome of the natural duty of a man to maintain his wife, children, and parents when they are unable to maintain themselves. The object of maintenance is to prevent immorality and destitution and to improve the economic condition of women and children.
Maintenance can be claimed under the respective personal laws of people following different faiths and proceedings under such personal laws are civil in nature. Proceedings initiated under Section 125 however, are criminal proceedings and, unlike the personal laws, are of a summary nature and apply to everyone regardless of caste, creed, or religion. The object of such proceedings, however, is not to punish a person for his past neglect. The said provision has been enacted to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves and have a moral claim to support. Maintenance can be claimed either at the interim stage, i.e., during the pendency of proceedings, or the final stage.
I). Who may claim maintenance?
Under Section 125 following persons can claim maintenance:
- Any person’s wife who is unable to maintain herself can claim maintenance from such a person even if she is a minor.
- Only a legally married wife can get maintenance and a second wife or mistress cannot get maintenance. A woman is not entitled to maintenance merely because she had stayed together with a person.
- A wife who has been divorced and has not remarried is entitled to maintenance.
- Legitimate or illegitimate minor child, whether married or not, unable to maintain itself can claim maintenance under Section 125. A minor is a person who has not attained the age of majority under the Indian Majority Act.
- The liability of a father will continue to maintain his married minor daughter till she attains the age of majority if her husband is a minor too.
- A child is not entitled to claim maintenance after attaining majority unless it is unable to maintain itself by reason of any physical or mental disability. If the child is a married daughter, it is her husband’s responsibility to maintain her.
- Right of the child to claim maintenance from the father is independent of the right of the mother. Therefore, a child is entitled to claim maintenance even if the mother is not entitled.
- A person has to maintain his father or mother, unable to maintain himself or herself.
- Such parents include step-father and step-mother or adoptive mother.
- A married daughter may also be held responsible for maintaining her parents. A married daughter can also be liable to maintain her parents.
II. Against whom maintenance can be claimed?
As per the SC decision in Vijaya Manohar Arbat v. Kashirao Rajaram, maintenance can be claimed against the father, husband, son, and married daughter.
- For being entitled to maintenance under section 125, the applicant must be unable to maintain himself/herself.
- The respondent against whom maintenance is claimed must have sufficient means to maintain the applicant.
- A wife claiming maintenance:
- a. must not be living in adultery
- b. must not have refused to live with her husband without sufficient reasons.
- c. must not be living separately by mutual consent.
Following are the grounds on which the application can be contested:
- If the conditions above mentioned are not satisfied.
- Where an application is made by the wife, the husband can contest that:
- she is living in adultery with another person
- she refuses to stay with him without sufficient reasons
- c. or they are living separately by mutual consent
- d. if civil court passes order in above cases
- e. is such woman remarries
- A father can take the ground that there is no physical or mental disability if the application is made by a major son.
- A father can take the ground that the husband of the minor daughter has sufficient means to maintain her if the application is made by a minor married daughter.
V. Procedure: S.126
- Proceedings may be initiated against a person in any district based on:
- his residence
- his or his wife’s residence
- where he last resided with the mother of an illegitimate child
- Evidence has to be recorded by the Magistrate in the presence of both the parties or in the presence of their leaders.
- According to the proviso of section 126, if a person is willingly avoiding service or willingly neglecting to attend the court then the Magistrate can pass an ex-parte order.
- Such an exparte order can be challenged within 3 months by showing good cause for not appearing.
VI. Amount of Maintenance
- Prior to the Amendment Act of 2001, the amount of maintenance was fixed at Rs. 500 but such a limit was subsequently removed.
- Considering the facts and circumstances of the case the Magistrate may grant any amount of Maintenance.
- The amount of maintenance may be calculated from whether the date of the order or from the date of maintenance.
- The Magistrate may pass an order for granting interim maintenance.
VII. Alteration and Cancellation S.127
- Maintenance once granted may be altered or cancelled according to the facts and circumstances of each case.
- Maintenance may be altered or cancelled on the following grounds:
- wife is living an adulterous life.
- wife refuses to live with husband without sufficient cause
- mutual consent
- remarriage, etc.
VIII. Enforcement S.128
Order of maintenance, against whom it is granted, may be supplied with a copy thereof free of cost. Such an order may be enforced by a Magistrate anywhere in India where the person against whom such an order is made resides.
IX. Mode of enforcement
- Warrant for levying amount:
A Magistrate may issue a warrant for levying such dues of maintenance as if it were a fine and can sentence such a person to imprisonment which may be up to one month. Property of a person may be attached by a Magistrate in case of non-payment.
An application to issue a warrant must be made within one year from the date on which maintenance became due.
X. Civil Court v. Criminal Court
If the petitioner has chosen an alternative remedy under civil law, he cannot be permitted to continue proceedings under section 125. It is a well-settled principle that the Judgment of the Civil Court prevails over the Judgment of the Criminal Courts.
XI. Statutory liability and personal law.
Provisions of Section 125 cannot be suspended by personal, customary, special laws of parties as it is a statutory right.
Mohd. Ahmad Khan v. Shah Bano Begum
The question before the court was whether s.125 applies to divorced Muslim wives because Muslim law states that the amount of maintenance is to be paid to the wife during the period of Iddat.
The SC held that irrespective of Muslim law, the liability of a Muslim husband to provide for the maintenance of a divorced wife u/s 125 does not come to an end with the expiry of the period of Iddat if she is unable to maintain herself.
The remedy available under Section 125 is quick and inexpensive as opposed to any remedies available under personal laws. It is also equally important to point out that it is a distinct remedy, i.e. there is no conflict between the two legal provisions. Persons who have obtained money under their personal law is not a valid reason to abrogate them from claiming maintenance under Section 125. Indian society has come quite far from where it once was.
Although the provision aims at preventing vagrancy among marginalised groups, many women and people of old age are denied to claim their rights of maintenance. Thus, this section is a measure of social justice specifically enacted to protect such groups. The Indian Courts are increasingly being vigilant and working towards the protection and restoration of their rights. But it is only when women are allowed to become educationally and economically independent that they can understand their rights. It is only then that social upliftment in its most real sense will be possible.