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MAINTAINANCE OF WIFE, CHILDREN, AND PARENTS

Table of Contents

(Ss. 125 TO 128)

QUESTION BANK

Q.1. State the provisions of the Cr. P.C dealing with the maintenance of wives, children, and parents.

Q.2. Explain the circumstances under which a wife is not entitled to receive maintenance from her husband. Can divorced Muslim woman claim maintenance under S. 125 of the Cr. P.C. from her husband?

SYNOPSIS

GENERAL:-

Maintenance menace:-

Interim Maintenance:-

PERSON AGAINST WHOM AN ORDER CAN BE PASSED:-

III. PERSONS ENTITILED TO CLAIM MAINTENANCE:-

1) Wife:-

Muslim ‘wife’s’ right of maintenance/ Right of maintenance and personal law:-

2) Children:-

3) Parents:-

CONDITION FOR CLAIMING MAINTENANCE:-
WHERE SUIT CAN BE BROUGHT (S. 126):-
ALTERATION IN AMOUNT OF MAINTENANCE (S. 127):-

VII. ENFORCEMENT OF ORDER OF MAINTENANCE (S. 128):-

I. GENERAL:-

Ss. 125 to 128 deal with the maintenance of wives, children, and parents. These sections give effect to a man’s natural and fundamental duty to maintain his wife, children, and parents who cannot maintain themselves. Though the maintenance remedy is of a civil nature, it has been included in this Code to provide a speedy, cheap, and effective remedy against starvation to wives, children, and parents.

These provisions are exhaustive in the sense that they provide maintenance, execution, etc.

Maintenance menace:-

The term ‘maintenance’ has not been defined by the Code. However, according to the dictionary, meaning ‘maintenance’ means food, clothing, and lodging. It may also be called ‘the supply of necessities of life to a person’. It includes means of substance, supply of necessaries and convenience, aid, support, assistance, and support (which one person is bound to extend and give to another for his/her living). It also includes medical and other expenses related to the normal pursuit of life.

The amount of maintenance was first fixed at Rs. 500. But now there is no such ceiling on the amount of maintenance. So now, the magistrate may order such an amount as he deems fit after considering the parties’ living standards, the opponent’s income, the applicant’s income, if any, etc.

Interim Maintenance:-

To avoid the claimant’s starvation, the magistrate can grant interim maintenance till the final hearing of a case on merit.

II. PERSON AGAINST WHOM ORDER CAN BE PASSED:-

125 provides that if any person having sufficient means neglect or refuses to maintain his wife, children or parents, unable to maintain themselves, a Judicial Magistrate First Class may order such person to pay maintenance to them at such rate as he deems fit[1].

The word ‘any person’ under the section denotes a father, a husband, or a son, as the case may be; they are responsible for maintaining their children, wives, or parents, respectively.

Even a married daughter earning income is duty-bound to maintain her parents, who are unable to maintain themselves.[2].

III. PERSONS ENTITLED TO CLAIM MAINTENANCE:-

The following persons are entitled to maintenance under S. 125-

1) Wife:-

The wife who is unable to maintain herself can claim maintenance. She may be a major or minor. ‘Wife’ means legally wedded wife and does not include kept mistress. If marriage is illegal, the wife can not claim maintenance. In other words, this section applies to a wife who is legally wedded to a person and is abandoned by him. The second wife is not entitled to maintenance if marriage is performed during the existence of the first marriage. The term ‘wife’ also includes a divorced wife. She is entitled to maintenance so long as she does not remarry.

However, the magistrate would not grant maintenance if she could maintain herself with her own income.

Muslim ‘wife’s’ right of maintenance/ Right of maintenance and personal law:-

The term ‘any person’ denotes that the right to maintenance is the ‘statutory right’ that the legislature has recognised, irrespective of the religion or nationality of the person. Personal, customary or special laws of the parties cannot supersede the provisions of this section. S. 125 intends to serve a social purpose.

In Shah Bano Begum’s Case[3]

Facts—The husband drove the wife out of the matrimonial home. She then filed an application for maintenance, and her husband subsequently divorced her.

Defence of husband: The husband resisted her claim of maintenance on the ground that he had already divorced his wife and had deposited the dower (mahr) amount during the period of iddat (for 3 months) as prescribed under Muslim personal law. Therefore, he was not liable to pay maintenance for more than those 3 months.

Court Held: The court below held that the husband is liable under S. 125 to maintain his wife irrespective of Muslim personal law unless she remarries. The Supreme Court upheld the decision and held that irrespective of Muslim law, the liability of maintenance of a divorced wife under S. 125 of the Code does not come to an end.

However, a lot of hue and cry was made against this decision by the Muslim community, saying that Muslim personal law does not recognise maintenance other than dower within a period of iddat (i.e., 3 months from divorce). However, children and parents unable to maintain themselves can claim to maintain from Muslim person u/s 125.

2) Children:-

If unable to maintain himself, a minor child is entitled to claim maintenance from his father. Whether such a child is legitimate or illegitimate, male or female, married or unmarried, is immaterial. ‘Minor’ means a person who has not attained the age of majority under the Indian Majority Act 1875[4].

The age of the majority is 18. The child’s right to claim maintenance is independent of his mother. Therefore, even though the mother is not entitled to claim maintenance (for example, being a second wife), the child is entitled to get maintenance from his father.

Children’s right of maintenance ceases when they attain the age of majority. But if such a child, even though major, is unable to maintain himself by reason of any physical or mental abnormality or injury, his right of maintenance continues.

3) Parents:-

The majority rule is that the person having sufficient means must support his father and mother, who are unable to support themselves. This rule has been incorporated under S. 125.

The term ‘father’ includes ‘adoptive father’ as well as ‘step-father,’ and the term ‘mother’ includes ‘adoptive mother’ as well as ‘step-mother’. Even a married daughter who earns income is duty-bound to maintain their parents, who are unable to maintain themselves.

IV. CONDITION FOR CLAIMING MAINTENANCE:-

Following are the conditions for granting maintenance under S. 125.

1) The application must be unable to maintain himself or herself.

2) The opponent must have sufficient means to maintain the applicant.

3) The opponent must have refused or neglected to maintain the applicant and

4) If the applicant is a wife-

a) She should not be living in adultery.
b) She should not have refused to live with her husband without sufficient reason, and
c) She should not be living separately by mutual consent.

These are also the defences of the opponent in the case of maintenance. Maintenance may be refused if the applicant can maintain himself or herself, if the opponent has no sufficient means to maintain the applicant, or if the opponent is ready and willing to maintain the applicant. If the applicant is a wife living in adultery or refuses to live with her husband without sufficient reasons, and if the husband and wife are living separately by mutual consent, the applicant can not get maintenance.

V. WHERE SUIT CAN BE BROUGHT (S. 126)[5]:-

The proper court to take cognizance of the complaint of the wife is the court within the jurisdiction of which-

(i) the husband is, or

(ii) where the husband resides, or

(iii) where the wife resides, or

(iv) where they last resided together, or

(v) where the husband last resided with the mother of the illegitimate child.

VI. ALTERATION IN AMOUNT OF MAINTENANCE (S. 127)[6]:-

127 provides that when there is a change in the circumstances of the person receiving or paying maintenance, the magistrate may alter the amount of maintenance as he thinks fit. Similarly, the magistrate can cancel or vary the order of maintenance if it appears to him that it should be cancelled or varied in consequence of any civil court decision. The magistrate can also cancel the order of maintenance if –

(i) wife after divorce has remarried,

(ii) when the divorced wife has received (whether before or after such divorce) the whole of the sum payable to her under any customary or personal law applicable to parties;

(iii) when the divorced wife voluntarily surrendered her maintenance right.

VII. ENFORCEMENT OF ORDER OF MAINTENANCE (S. 128):-

This section provides that any magistrate may enforce the order made under S. 125 in a place where the respondent may be (on his being satisfied as to the identity of the parties and the non-payment of the allowance due).

This section requires a copy of the order of maintenance to be supplied free of cost to the person in whose favour it is made or to his guardian.

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[1] S. 125 Order for maintenance of wives, children and parents:-

(1) If any person having sufficient means neglects or refuses to maintain-

(a) his wife, unab0le 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, 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 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.

(2) Any such allowance for the maintenance or interim maintenance and expenses for proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.

(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 allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, 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.

Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, 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:

Provided also that an application for the monthly allowance for the interim maintenance and expenses for proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.

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 for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, 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.

[2] Vijaya Manohar v. K Rajaram (AIR 1987 SC 1200).

[3] Mohd. Ahmed Khan v. Shaha Bano Begum (AIR 1985 SC 945).

[4] S. 3 and 4

[5] S. 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

(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-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 willfully avoiding service, or willfully 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 as 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.

[6] S. 127 Alteration In allowance. .-

(1) On proof of a change in the circumstances of any person, receiving, under Section 125 a monthly allowance for the maintenance or interim maintenance, or ordered under the same section to pay a monthly allowance for the maintenance, or interim maintenance, to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration, as he thinks fit, in the allowance for the maintenance or the interim maintenance, as the case may be.

(2) Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made under Section 125 should be cancelled, or varied, he shall cancel the order, or as the case may be, vary the same accordingly.

(3) Where any order has been made under Section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that-

(a) the woman has, after the date of such divorce, remarried, cancel such order as from the date of her remarriage;

(b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order-

(i) in the case where such sum was paid before such order, from the date on which such order was made,

(ii) in any other case, from the date of expiry of the period, if any, for which maintenance or interim maintenance, as the case may be, has been actually paid by the husband to the woman;

(c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance after her divorce, cancel the order from the date thereof.

(4) At the time of making any decree for the recovery of any maintenance or dowry by any person, to whom a monthly allowance for the maintenance and interim maintenance or any of them has been ordered to be paid under Section 125, the Civil Court shall take into account the sum which has been paid to, or recovered by, such person as monthly allowance for the maintenance and interim maintenance or any of them, as the case may be, the said order.