Legal provisions regarding order for maintenance of wives and children under section 125 of the Code of Criminal Procedure, 1973. The word ‘Maintenance’ is not defined in the Code of Criminal Procedure, 1973. Chapter IX of the Code of Criminal Procedure 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.
Who can claim and get maintenance?
Section 125 of Cr.PC deals with “Order for maintenance of wives, children and parents”. According to Section 125(1), the following persons can claim and get maintenance:
- Wife from his husband,
- Legitimate or illegitimate minor child from his father,
- Legitimate or illegitimate minor child (physical or mental abnormality) from his father, and
- Father or mother from his son or daughter.
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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, and
- She has not remarried, and
- She is not able to maintain herself.
Note: Muslim wife can also claim maintenance under Cr.PC though they have a separate Act (Muslim Women Protection of rights on Marriage Act) for them.
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
‘Minor’ means a person who, under the provisions of Section 3 of Indian Maturity 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.
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.
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.
Chapter IX of the Code of Criminal Procedure is essential for the protection of the rights of the divorced wife, children and aged parents. It is made to protect them from unusual livelihood. Maintenance is the duty of everyone who has sufficient means for the same.
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