Question-related to maintenance under section 125 code of criminal procedure code

INTRODUCTION

As it is considered to be the sacred, fundamental and natural duty of a Person to look after his wife, children and parents, Section125 to section 128 of the code of criminal procedure (CRPC) gives effect to this natural duty of Man and serve a special purpose to avoid vagrancy. These provisions were Enacted with an object of enabling discarded Wives, helpless and deserted Children and destitute parents to secure the Much –Needed Relief. Moreover, Section 125 is regarded as the means of establishing social justice and to provide protection to Women and Children which falls under the constitutional Mandate of Article 15 (3) of Indian Constitution further reinforced by Article 39 of Indian constitution. So with Changing times more and more people are fighting for their Rights and filing cases under section 125 crpc for their right to Maintenance, hence many difficulties which they face during their fight to acquire maintenance are answered below to make their journey of acquiring maintenance from the one having the liability of maintaining them.

QUESTIONS

WHO CAN ALL CLAIM MAINTENANCE UNDER SECTION 125 OF CRPC?

The following persons can claim maintenance under 125 of CRPC

1. Wife of a person who is unable to maintain herself.
2. The legitimate or Illegitimate Minor Child of the person who is unable to maintain itself.
3. The Legitimate or illegitimate child of a person who has attained majority but due to the reason of any physical or mental abnormality or injury is unable to maintain itself. The Married daughters are excluded under this Clause.
4. The Father or Mother of the person who are unable to maintain themselves.

HOW MAINTENANCE U/S 125 OF CRPC IS DIFFERENT FROM SECTION 24 OF HINDU MARRIAGE ACT?

The proceeding under 125 crpc and section 24 of HMA are distinct and different and they are worked for different purposes, they do not overlap over the other.

• Under section 24 of the HMA either of the spouses can file for the maintenance in the matrimonial court while under section 125 only wife or concerned destitute parents or legitimate or illegitimate minor child whether married or not and unable to maintain itself, through his or her guardian can apply for maintenance.
• Under section 24 of HMA the spouse has only need to prove that he or she has no independent source of income for her/himself, once this is established, interim alimony amount has to follow, keeping in mind the economic condition of the respective spouses. While in U/S 125 the wife alleges that she has no independent source of income, her application cannot be automatically granted. She has to further prove that her husband having sufficient means has neglected or refuses to maintain her.
• This order of maintenance under section 24 of HMA is applicable till the pendency of the litigation that is why word maintenance pendente lite. While the order of maintenance in 125 of CRPC is the final order.
• And the most important difference is the provision of section 125 can be invoked by the aggrieved person irrespective of their religion and caste while in section 24 of HMA only a Hindu male and female can invoke the provision.

CAN WIFE CLAIM MAINTENANCE UNDER HINDU MARRIAGE ACT AS WELL AS IN 125 CRPC?

Yes, it is legally allowed for a wife to seek maintenance from husband under two different sections. There is no stopping her from doing so. Please note that grant of interim maintenance under Section 24 of the Hindu Marriage Act is in itself not a ground for rejecting a petition filed under Section 125 of the Code of Criminal Procedure. As per maintenance laws in India, if a woman has already claimed maintenance under section 24 of the Hindu Marriage Act, 1955, she can legally claim maintenance under section 125 of Cr.P.C simultaneously. Courts have, in several judgments, ruled that remedy under section 125 and Sec. 24 of Hindu Marriage Act, 1955 are independent and not relevant to each other. There is no conflict between the two provisions. A person may sue for maintenance under section 125 of Cr.P.C. If a person has already obtained maintenance order under his or her personal law, the magistrate while fixing the amount of maintenance may take that into consideration while fixing the quantum of maintenance under the Code.

WHETHER THE ORDER OF MAINTENANCE PASSED IN THE PROCEEDINGS FILED UNDER SECTION 125 OF CRPC IS TO BE FOLLOWED, OR, WHETHER THE ORDER OF MAINTENANCE PASSED IN THE PROCEEDINGS FILED UNDER DOMESTIC VIOLENCE ACT, IS TO BE FOLLOWED?

Section 20 (1) (d) of the Domestic Violence Act states- 'In proceedings under the D.V. Act, the Magistrate may direct the Respondent to pay the maintenance to the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under Section 125 of Cr.P.C. or any other law for the time being in force.

Section 36 of the said Act states- 'The provisions of the D.V. Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force”

The same has been confirmed by the Hon'ble Supreme court in 'Prakash Babulal Dangi vs The State Of Maharashtra on 10 January, 2018” by saying that 'as both the orders are passed by two different Forums in two different proceedings, both the orders are binding on the Petitioner-husband and Respondent-wife and they have to comply with both the orders, unless they are varied or set aside.”

WHAT SHOULD BE THE POINTS OF DETERMINATION, THE COURT SHOULD CONSIDER WHILE DECIDING THE MAINTENANCE AMOUNT?

In Raj Bari Behera v. Mangaraj Behera, the maintenance has to determine in the light of the standard of living of the person concerned, the earnings of the husband and his other financial commitments.

Financial commitments like EMI's should also be taken into consideration while deciding maintenance amount (Bhushan Kumar Meen vs Mansi Meen @ Harpreet Kaur on 28 April 2009, Supreme Court of India)

CAN A WOMEN NOT BEING ACTUALLY MARRIED TO A MAN OR WE CAN SAY IN A LIVE IN RELATIONSHIP CAN CLAIM MAINTENANCE UNDER SECTION 125 CR.P.C.

Yes, In Chanmuniya v. Virendra Kumar Singh Kushwaha & Anr, the question to be considered by the Supreme Court was whether, where a Man and Woman are living together for a long time even without a valid marriage, the personal law raises a presumption of a valid marriage entitling such woman to maintenance. The court considering the provisions of protection of women from Domestic violence Act, 2005 and the change in social attitudes and values, however, expressed a view that a broad interpretation should be given to the wife which should also include women and man who are living together for a long period of time and strict proof of marriage should not be preconditioned for maintenance under section 125 Cr.P.C so as to fulfill the true spirit of the benefits of this section.

MERE FAILURE TO STATE IN THE APPLICATION BY THE WIFE THAT IS SHE IS UNABLE TO MAINTAIN HERSELF WILL TAKE HER RIGHT AWAY OF MAINTENANCE? 

No, this will not take her right away which was clearly stated by Bombay High Court in Rewati Bai v. Jogeshwar .

WHAT CAN ALL MEASURES MAGISTRATE TAKE FOR THE ENFORCEMENT OF THE ORDER FOR PAYMENT OF MAINTENANCE?

The following measures can be taken:-

1.  A warrant for attachment can be issued for levying the amount.
2.  A magistrate can sentence the husband (or the father) to imprisonment for whole or part of each month's allowance or the interim maintenance and expenses of the proceeding.

WHAT IS INTERIM MAINTENANCE AND THE PURPOSE BEHIND IT?

Interim maintenance is a kind of interim relief which should be paid during proceedings or till the final order and is intended to provide financial support to a wife until a final financial resolution is reached. The purpose behind this provision of interim maintenance which is given under Proviso (2) to section 125(1) is to prevent the claimant from unnecessary financial sufferings till the final disposal of the proceedings.

IN HOW MUCH TIME THE APPLICATION FOR 'INTERIM MAINTENANCE” SHOULD BE DISPOSED OFF?

According to the third proviso of section 125(1), it says that whenever an application for interim maintenance or expenses for the proceeding is made, the same shall be disposed of within 60 days from the date of the service of the notice of the application to such person.

WHAT IS THE TIME LIMIT FOR FILING REVISION AGAINST THE INTERIM ORDER?

According to article 131 of Limitation Act, it is 90 days from the date of the pronouncement of order.

WHEN WILL THE WIFE NOT BE ALLOWED FOR MAINTENANCE OR INTERIM MAINTENANCE?

In the following circumstances the women will not be entitled to maintenance or interim maintenance or if the order of maintenance is already made by the magistrate the same could be canceled:

1. If she has sufficient means to maintain herself,
2. when the women is living in Adultery,
3. When the women without any sufficient reason refuse to live with her husband,
4. When the woman is living separately by mutual consent.

DOES WIFE BE STILL ENTITLED TO MAINTENANCE IF SHE SHOWS REASONABLE REASONS TO LIVE SEPARATELY WITH HER HUSBAND?

Yes, she will be entitled to maintenance if she shows just and reasonable reasons to the court for living separately with her husband.

WHILE DECIDING THE MAINTENANCE FOR WIFE CAN THE MAGISTRATE CONSIDER HER INCOME AND OTHER MEANS?

Yes, In 'Bhagwan Dutt v. Kamala Devi” it was held that while deciding the maintenance is competent to take into consideration the separate income and means of Wife.

If she has sufficient means to maintain herself then the court will consider the same and will decide the maintenance amount according to the status of the parties.

HOW THE JURISDICTION OF THE PROPER COURT TO TAKE COGNIZANCE WILL BE DECIDED?

The proper Court to take cognizance of the complaint of the wife is the court:

1. Within whose jurisdiction the husband is or resides.
2. where the wife resides
3. where they last resided together

WHEN CAN THE MAGISTRATE PASS EX- PARTE ORDER?

When the magistrate is satisfied that every effort has been made to secure the attendance of the person proceeded against and that he is willfully avoiding service or willfully neglecting to attend the court.

CAN THE MAGISTRATE MAKE DUE CHANGES IN THE MAINTENANCE ORDERED AFTER SOMETIME?

Yes, U/S 127 of Cr.P.C the magistrate is empowered to make alterations in the amount of the maintenance ordered due to change in the circumstances of the person receiving the maintenance or paying the amount.

WHAT POINTS DOES COURT CONSIDER WHILE MAKING THE DUE CHANGES IN THE AMOUNT OF MAINTENANCE?

Change in the circumstances includes a change in pecuniary as well as other circumstances of the party paying or the party receives. Changes here include a change in the cost of living upward or downward, Change in the status or income, change due to death or birth of a child or the fact of the child grows older or a valid divorce.

SHOULD THE MAINTENANCE UNDER SECTION 125 BE PAYABLE FROM THE DATE OF ORDER OR FROM THE DATE OF APPLICATION?

Ideally, it should be from the date of the order, until and unless it is specifically mentioned in the order that the maintenance amount should be paid from the date of the application.

If nothing specific is in the order then it can be interpreted that it should be from the date of the order.

WHAT AMOUNT SHOULD BE AWARDED TO WIFE AS MAINTENACE?

So, there is no set rule for calculating the amount of maintenance, it differs from case to case and fact to fact, but ideally 1/3 of the income of the husband may be awarded as maintenance.

I have tried to cover as many questions as I can, if anyone has still any query then you can mail me your query at Amanchawla.p4@gmail.com