In simple terms, maintenance can be understood as the amount which is given or paid to the people who are dependent on man for instance wife, child, or parents to maintain themselves. It is the fundamental and moral duty of every man to maintain his wife, children, and parents when they are unable to maintain themselves.
Sir James Stephen observed chapter IX of Criminal Procedure Code in following manner,
“a mode of preventing Vagrancy, or at least of preventing its consequences”
-Sir James Stephen.
The maintenance is given under Section 125 to section 128 of the Criminal Procedure Code and is civil in nature. Under the said Section, maintenance can be claimed by the wife, children, and parents. Section 125 to 128 provide for a rapid, effective, and a rather inexpensive remedy against persons who neglects or refuse to maintain their dependent wives, children, and parents. Maintenance under Criminal Procedure Code is of secular nature that is any religion can approach the court under the said sections.
Order for maintenance is defined under section 125 of Criminal Procedure Code
Section 125. Order for maintenance of wives, children and parents.—
If any person having sufficient means neglects or refuses to maintain—
(a) his wife, unable 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 pass an order against such a person, ordering him to make a monthly allowance for the maintenance of such wife, child, father or mother, as the case may be, at such monthly rate as such Magistrate thinks fit.
In the case of a minor female child who is married, if the Magistrate is satisfied that the husband of such a minor female is not possessed of sufficient means, an order can be made against the father of the child to make such allowance until she attains the age of majority.
The Amendment Act 2001, has also made a salutary provision for payment of interim maintenance and costs. It is now provided that, during the pendency of maintenance proceedings under Section 125 of the Criminal Procedure Code, the Magistrate may order such person to pay a monthly sum for temporary maintenance and for expenses of such proceedings, as the Magistrate may consider reasonable. The proceedings for temporary maintenance and for expenses are to be disposed of, as far as possible, within 60 days from the date of notice on the person liable to pay maintenance.
It may also be considered that a reference to a wife, also covers a woman who is divorced from her husband, provided that she has not re-married.
Section 125 confers a statutory right and is, therefore, it is not affected by personal law. The Supreme Court has taken the view that Section 125 is applicable to all persons irrespective of their religion. One who is not successful 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.
There is an argument of judicial opinion on whether maintenance would include the cost of education. Some cases have held that, in criminal law, maintenance does not include the cost of education. However, the better view seems to be that it does include the cost of education.
In the case of Ramanathan, AIR 1943 Mad. 342, the Madras High Court has observed that where a wife is admittedly an invalid and requires medical attention, the expenses of a reasonable amount of medical attention would be covered under Section 125.
In Mohd. Ahmed Khan v. Shah Bano Begum AIR 1985 S.C.945, or famously known as Shah Bano case, a five-member Bench of the Supreme Court had to answer the question as to whether S. 125 applies to Muslims also. Supreme Court observed that “Whether the spouses are Hindu or Muslims, Christians or Parsis, pagans or Heathens, is wholly irrelevant in the application of these provisions.”
Section 126 of the Code provides that maintenance proceedings under S. 125 may be taken in the District in which-
- The respondent resides, or
- the respondent is, or
- the respondent has last resided with his wife, or as the case may be, with the mother of the illegitimate child.
All evidence in such proceedings must be taken in the presence of the husband, father, mother, or child, as the case may be, or if his personal attendance is dispensed with, in the presence of his pleader. If the Magistrate is satisfied that the respondent is wilfully avoiding service or is wilfully neglecting to attend the Court, the Magistrate may hear and determine the case ex parte.
Section 127 provides that upon proof of any change in the circumstances of the person receiving or paying the monthly allowance, as the case may be, the Magistrate may make any alteration in the allowances as he may deem fit.
Section 128 of the Code provides A copy of the order of [maintenance or interim maintenance and expenses of proceedings, as the case may be,] 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 for the maintenance or the allowance for the interim maintenance and expenses of proceeding, as the case may be,] 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, or as the case may be, expenses, due].
 Section 125, Criminal Procedure Code, 1973.
 Clause b of Section 125, Criminal Procedure Code, 1973.
 AIR 1943 Mad 342.
 AIR 1985 S.C. 945.
 Section 126, Criminal Procedure Code, 1973.
 Section 127, Criminal Procedure Code, 1973.
 Section 128, Criminal Procedure Code, 1973.
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