MAINTENANCE OF WIVES, CHILDREN AND PARENTS

The term ‘maintenance’ means the act of maintaining someone, i.e; providing financial support to a person. It is believed that it is a fundamental duty of a man to maintain his wife, children and parents. Section 125 to Section 128 of the Criminal Procedure Code gives effect to this fundamental duty.

According to the provision of CrPC, maintenance means an obligation and duty to provide for certain basic necessities like food, clothing, shelter, education, health care and so on. The term maintenance has broad meaning under CrPC.

Section 125 provides for maintenance of wives, children and parents.

Section 126 provides for the procedure that is to be followed by the court that takes the cognizance of a complaint under Section 125.

Section 127 gives power to the Magistrate to alter, increase or decrease the amount of maintenance fixed by the Court earlier.

Section 128 lays down the provisions related to the enforcement order for maintenance.

The main aim of these provisions to avoid vagrancy and homelessness. The provisions of this section are applicable to all the citizens of India irrespective of their religion. The main purpose of these sections is to provide effective and speedy remedy to those whose parents, children or spouse refuses to maintain them.

Section 125

Section 125 gives power to the Magistrate of First Cass to any person who has sufficient means to provide the maintenance but refuses to do so to maintain:

  • His lawfully wedded wife.
  • His children, legitimate or illegitimate (Minor son, Unmarried daughter of any age and physically or mentally disabled children).
  • His parents, both mother and father or mother or father, who are unable to maintain themselves.

The term sufficient means does not only include tangible or visible means such as real estate or income but also includes the earning capacity of a person.

PEOPLE ENTITLED TO CLAIM MAINTENANCE UNDER SECTION 125(1) OF CRPC.

  1. Wife.
  2. Children.
  3. Parents.
  1. Wife:

Under this section, wife means a legitimate or lawfully wedded wife. The term wife also includes a divorced wife until she remarries. This section is secular and applies to all irrespective of their religion.

Section 125 and Hindu Wife- Any Hindu wife who has separated from her husband on legitimate and reasonable grounds has the right to claim maintenance under:

  1. The Hindu Adoption and Maintenance Act, 1956.
  2. The Hindu Marriage Act, 1955.
  3. The Criminal Procedure Code, 1973.
  1. The Hindu Adoption and Maintenance Act, 1956.

Under this Act, Section 18(1) and Section 18(2) deals with maintenance. Section 18(1) lays down that a Hindu wife who resides with her husband is entitled to claim maintenance under this section. Section 18(2) says that a Hindu wife with sufficient means to maintain herself is also entitled to claim maintenance.

  • The Hindu Marriage Act, 1955.

Section 24 and Section of this deal with provisions related to maintenance. Section 24 lays down provisions related to temporary relief or pendete lite. Section 25  lays down provisions related to permanent relief or alimony.

  • The Criminal Procedure Code.

Section 125- Section 128 deals with maintenance.  According to Section 125, to claim maintenance under CrPC the following conditions are essentials:

  • Marriage must be legal and legitimate as per their religion.
  • The must not refuse with her husband without any reasonable cause.
  • She must not live in adultery or she must be unchaste.
  • Spouses must not live separately by mutual consent.

 Section 125 and Muslim Wife

Although Section 125 of CrPC is a territorial and secular law, its applicability to Muslim women has been challenged several times. One of the landmark cases is that of Shah Bano Begam.

Mohammed Ahmed Khan v. Shah Bano Begum

Facts of the case: In this case, the husband, Mohammed Ahmed Khan was married to Shah Bano Begum for 45 years. After 45 years of his marriage he divorced her by pronouncing triple talaq. Shah Begum filed a petition against her husband under Section 125 of CrPC to claim maintenance.

Issue before the Court:  The question before the Court was whether Section 125 of CrPC was applicable to Muslim women?

Decision of the Court: Both the trial and the High Court gave decision in favour of Shah Bano Begum on the grounds that Section 125 is applicable to all including Muslims.

In an appeal before the Supreme Court, Ahmed Khan contented that he was not obligated to maintenance to Shah Bano Begum beyond the iddat period. The Apex Court rejected his contention and upheld the High Court’s decision. The Court also held that Section 125 is a general provision and there is nothing in this Section that limits its application to Muslim women.

Aftermath:  The decision of the Court given in Shah Bano’s case received criticism from many Muslim fundamentalists, who stated that the Supreme Court was not empowered to interfere with the personal law and demanded to amend this Section. Due to this, the Parliament passed the Muslim Women’s (Protection of Rights on Divorce) Act, 1986 to nullify the Supreme Court’s decision in Shah Bano’s case.

This Act allows a Muslim women to claim maintenance under Section 125 but only with the permission of her spouse.

 Disqualifications under Section 125:

 The wife is not entitled to claim maintenance under this Section if she:

  • Refuses to live with her husband without reasonable cause.
  • Remarries after divorce.
  • Lives separately by mutual consent.
  • Lives in adultery.

However, a wife living in adultery can claim maintenance for her husband’s child.        

Section 126:

Section 126 of CrPC lays down the provisions related to the procedure that is followed by the Magistrate on taking cognizance of a complaint under Section 125.

Proceedings under this Section may take place:

  • Where the husband resides or
  • Where he or his wife last resided or
  • Where he last resided with his wife or the mother of an illegitimate child.

The evidence has to be taken in presence of the person against whom the maintenance is to be ordered.

Any person who is willfully avoiding the summons, an ex-parte evidence is taken in such a case.

Section 127:

This Section empowers the Magistrate to alter, increase or decrease or cancel the allowance or maintenance ordered by him earlier if the conditions of the parties has changed.

REFERENCE:

  1. S.N Mishra – The Code of Criminal Procedure.
  2. R.V. Kelkar’s Criminal Procedure Code.
  3. Dr. Rega Surya Rao- Lectures on Criminal Procedure Code.
  4. Ipleaders

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

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In the year 2021, we wrote about 1000 Inspirational Women In India, in the year 2022, we would be featuring 5000 Start Up Stories.

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