Maintainance tenure

Incomplete discripttion.

Till her remarriage or if she gets a good job by which she gets a salary which is sufficient to maintain herself, you can approach the court for cancellation of maintainance. If none of these happens then you will have to pay maintainance till her lifetime.

If none of these happens then you will have to pay maintainance till her lifetime.

Or, pointing out the obvioud,  till you get tired of working like an ox to pay off the ex-wife and die yourself ;-)

My brother a mentally retarded boy from kolkata got married to a girl in Bihar. The girl's parrent/brother/sisters (except the bride herself) met my brother and aquainted with him for more than a week. They agreed to accept my brother for their daughter who has not met the boy. We wentto Bihar & personally asked the bride if she is aware of the mental condition of our brother? she said she will marry any body whom her parents approves. They were married in Sept'2006 after the marriage the girl from first day did not allow my brother to touch her, made him sleep on floor and they never had any conjugal life at all. She expressed her anger to my brother because of his retarded mental condition and accuse him that she was cheated. She visited her parents house once or twice but never told anything to anybody. After one or two months her father suddenly arrived late at night and convinced the boy's mother that she has to attend her friend's marriage and shall be back after one week and left Kolkata silently next day early in the morning. After one months inspite of several phone calls she didnt returned, my brother sent atleast three register letters but no reply. We became suspicious, when checked lockers and found that she has carried all the ornaments( value around five lakhs)/clothes & valueable things with her. We filed a written complaint about this with the local police. After three months we about six people went to her parents house and tried to bring her back but she refused and said that she was cheated as her husband is insane, we told her that before the marriage we had asked her about the boy's mental state and she had confirmed she knew about it so why she is denying this? she said she will not live with the boy, we returned. After six an half years she has sent notice asking for maintenance also stated that she was not tortured by any body, her in-laws are good people etc. only she had asked for maintenance. Now my brother is not having any income nor any property in his name and is fully dependant upon his mother. We had appeared in the case. Can she force my brother for maintenance inspite of his no income. What should we do?

Lead evidence of the fact that the brother is mentally retarded and is incapable of earning and himself is fully dependant upon others for livelihood.

Dear Mr. RK

according to section 125:

125. Order for maintenance of wives, children and parents.

(1) If any person leaving 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, 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 rate¹[***] 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[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. For the purposes of this Chapter.

(a) minor means a person who, under the provisions of the Indian Majority Act, 1975 (9 of 1875) is deemed not to have attained his majority;

(b) "Wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

³[(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's⁴[ allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case 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 dare 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.

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 ⁴allowance from her husband under this section she is living in adultery, or if, without any sufficient reason, if 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.

1. The words "not exceeding five hundred rupees in the whole" omitted by Act 50 of 2001, sec.2 (w.e.f. 24-9-2001).

2. Ins. by Act 50 of 2001, sec.2 (w.e.f. 24-9-2001).

3. Subs. By Act 50 of 2001, sec 2, for sub-section (2) (w.e.f. 24-9-200).

4. Subs. By Act 50 of 2001, sec 2, for "allowance" (w.e.f. 24-9-200).

STATE AMENDMENTS

Madhya Pradesh:

In section 125, in sub-section (1), for the words "five hundred rupees" the words m' "three thousand rupees" shall be substituted.

[Vide M.P. (Act 10 of 1998), sec. 3 (w.e.f. 29-54998)] [Ed. This amendment has been I made prior to the enactment of the Code of Criminal Procedure (Amendment) Act, 2001 W (Central Act 50 of 2001) whereby the words "not exceeding five hundred rupees in the I whole" have been omitted by sec. 2 (w.e.f. 24-9-2001)].

Maharashtra:

In Section 125,-

(a) in sub-section (1),-

(i) for the words "not exceeding five hundred rupees" the words "not I exceeding fifteen hundred rupees" shall be substituted;

(ii) before the existing proviso, the following proviso shall be inserted, namely:-

Provided that, the Magistrate on an application or submission being made, supported by an affidavit by the person who has applied for the maintenance under this sub-section, for payment of interim maintenance, on being satisfied that, there is a prima facie ground for making such order, may direct the person against whom the application for maintenance has been made, to pay a reasonable amount by way of interim maintenance to the applicant, pending the final disposal of the maintenance application:

Provided further that, such order for payment of interim maintenance may, in an appropriate case, also be made by the Magistrate ex parte, pending service of notice of the application, subject, however, to the condition that such an order shall be liable to be modified or even cancelled after the respondent is heard in the matter:

Provided also that, subject to the ceiling laid down under this sub-section, the amount of interim maintenance shall, as far as practicable, be not less than thirty per cent of the monthly income of the respondent.";

(iii) in the existing proviso, for the words "Provided that" the words

"Provided also that" shall be substituted;

(b) after sub-section (2), the following sub-section shall be inserted, namely:-

(2A) Notwithstanding anything otherwise contained in sub-sections (1) and (2), where an application is made by the wife under clause (a) of sub-section (1) for the maintenance allowance, the applicant may also seek relief that the order may be made for the payment of maintenance allowance in lump-sum in lieu of the payment of monthly maintenance allowance, and the Magistrate may, after taking into consideration all the circumstances obtaining in the case including the factors like the age, physical condition, economic conditions and other liabilities and commitments of both the parties, pass an order that the respondent shall pay the maintenance allowance in lump-sum in lieu of the monthly maintenance allowance, covering a specified period, not exceeding five years at a time, or for such period which may exceed five years, as may be mutually agreed to, by the parties.";

(c) in sub-section (3),-

(i) after the words "so ordered" the words, brackets, figures and letter "either under sub-section (1) or sub-section (2A), as the case may be," shall be inserted;

(ii) after the words "each month's allowance" the words "or, as the case may be, the lump-sum allowance to be paid in lieu of the monthly allowance" shall be inserted.

[Vide Maharashtra Act, 21 of 1999 sec. 2 (w.e.f. 20-4-1999)] [Ed. These amendments have been made prior to the enactment of the Code of Criminal Procedure (Amendment) Act, 2001 (Central Act 50 of 2001) sec. 2 (w.e.f. 24-9-2001)].

Tripura:

In section 125, for the words "five hundred rupees" the words "one thousand five hundred rupees" shall be substituted.

[Vide Tripura Act, 9 of 1999 sec. 2 (w.e.f. 9-4-1999}] [Ed. This Amendment has been made prior to the enactment of the Code of Criminal Procedure (Amendment) Act, 2001 (Central Act 50 of 2001) whereby the words" not exceed of five hundred rupees in the whole" have been omitted by sec. 2 (w.e.f. 24-9-2001)].

STATE AMENDMENTS

West Bengal:

In Sub-section (1) -

For the words "five hundred rupees" the words "one thousand and five hundred rupees" shall be submitted.

(2) After the existing proviso, following proviso shall be inserted, namely.

"Provided further that where in any proceeding under this section it appears to the Magistrate that the wife referred o in clause (a) or the minor child referred to in clause (b) or the child (not being a married daughter) referred o in clause (c) or the father or the mother referred o in clause (d) is in need of immediate relief for her or its or his support and the necessary expenses of the proceeding, the Magistrate may, on the application of the wife or the minor child or the child (not being a married daughter) or the father or the mother, as the case may be, order the person against whom the allowance for maintenance is claimed, to pay to the petitioner, pending the conclusion of the proceeding the expenses of the proceeding, and monthly during the proceeding such allowance as having regard to the income of such person, it may seem to the Magistrate to be reasonable.

[Vide West Bengal Act 25 of 1992 (w.e.f. 2-8-1993)] [Ed. This Amendment has been made prior to the enactment of the Code of Criminal Procedure (Amendment) Act, 2001 (Central Act 50 of 2001) whereby the words "not exceed of five hundred rupees in the whole" have been omitted by sec. 2 (w.e.f, 24-9-2001)].

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