DECODING THE PROVISIONS FOR MAINTENANCE UNDER CrPC (SECTION 125-128)



Authors:

Devesh Kumar Singh, Army Institute of Law, Mohali

Parul Agarwal, GNLU


Introduction

‘Maintenance’ in a general sense indicates the act of providing for someone. The aspect of maintenance is laid down in chapter 9 of the Code of Criminal Procedure (1973) (CrPC), from sections 125 - 128. The main purpose of these provisions is to provide a remedy for the dependent people. The word Maintenance is, however, not defined anywhere in this code. Section 3(b) of Hindu Adoptions and Maintenance Act 1956, provides the definition of Maintenance, where it includes -

1. In all cases provisions for food, residence, clothing, education, medical attendance and medical treatment.

2. In the case of an unmarried daughter, also the reasonable expenses of and incidental to her marriage.[1]

Maintenance is provided so that the woman or any other person whom one is responsible for, can live in the same means, more or less, to which they were habituated. Ideally, maintenance must, consist of the provision for food, clothing and the like and shall also take into consideration the very minimal need of a roof over the head.[2]

There are many personal laws which include provisions about maintenance. For example, the Hindu Marriage Act, 1955, Muslim women (protection of rights on divorce) Act, 1986, Parsi Marriage and Divorce Act, 1936, and Indian Divorce Act, 1869 individually include these provisions. As there was a lack of common statute which could deal with all of the religions, Sections 125 to 128 of CrPC provides a more secular approach to maintenance

Order for maintenance of wives, children and parents (Section -: 125)

This section deals with the persons who are entitled to receive maintenance and the conditions under which they are entitled. It must be understood that maintenance is not just limited to spouses under section 125(1) of CrPC. The scope of maintenance is expanded and can be granted to wife from her husband, minor child (Legitimate or illegitimate) from his father, Legitimate or illegitimate major child (physically or mentally abnormal) from his father, and father or mother from his son or daughter. However, there are certain conditions under which they are granted.

These conditions have been elucidated below:

a) Wife- A wife can receive maintenance from her husband if she is divorced by her husband or has obtained a divorce from her husband and has not remarried and is unable to maintain herself. However, a wife is not allowed maintenance if she is living in adultery or refuses to live with the husband without any valid reasons or lives separately without shared consent.

It must also be noted that a woman is not entitled to maintenance under secTION 125 of CrPC when she knowingly marries a man with Hindu rites who have a living spouse as it is completely invalid in the eye of law.[3]

b) Legitimate or Illegitimate minor child- In case of a son, he is entitled to get maintenance until he attains the age of, 18 according to Section 3 of The Indian Majority Act 1875[4]. In cases of the daughter, she is entitled to get maintenance until she is minor and unmarried. , If she is married, then she can receive maintenance by proving that her husband does not have the means or the essentials to maintain her. .[5]

c) Legitimate or Illegitimate abnormal child- If the child is dealing with an abnormality, whether physical or mental, and is not able to maintain himself or herself, then, the father has to provide maintenance. This maintenance will also continue after the child has obtained the age of majority on the ground of abnormality.

d) Father and Mother- The father and mother can also seek the remedy of maintenance under section 125(1)(d) of CrPC. Apart from the natural father and mother, an adoptive mother can also claim maintenance from her adoptive son. Also, a stepmother can claim maintenance under this section and these claims cannot be ignored by pleading that the father or the mother has failed to fulfil his or her parental duties or obligations. However, these claims can only be granted if the father or the mother is unable to maintain himself or herself and their son or daughter have sufficient means to maintain their parents but refuses or neglects to.[6]

It must also be kept in mind that there are certain conditions which must be looked upon while dealing with the cases of maintenance as to whether the party which is providing the maintenance has sufficient means to provide it, but neglects or refuses and the person who is claiming the maintenance must also be unable to maintain himself or herself.

In the case of Abdulmunaf Vs Salima[7], it was observed that the wife who was seeking maintenance was in a good state of health and was educated enough to maintain herself, but refuses to earn herself, in this scenario she was denied from the full amount of maintenance.

The quantum of maintenance is yet another question face by many jurists, it cannot be a fixed amount because the earning capability varies from person to person. The magistrate must use its discretion to fix an allowance depending upon the status and earning capability of the person providing maintenance.

Jurisdiction and Powers of the Magistrate-

According to section 125(1)(d), if a person refuses or neglects to maintain his wife, parents or children, then a magistrate of the first class can issue an order for the maintenance of the same, the amount of maintenance is left to the discretion of the magistrate. If a proceeding concerning the monthly allowance of maintenance is pending, then the magistrate can demand the person to discharge his/her duty of paying a monthly allowance in the form of interim maintenance. Such applications must be dealt with and disposed within sixty days from the date of notice of the application.

The magistrate also has the authority to issue a warrant and levy the amount with fines if a person fails to comply with his/her order of maintenance under section 125 of CrPC. Further, if the person again fails to fulfil the amount, then the magistrate can punish the person with imprisonment for a term which may extend to one month.

Procedure for Maintenance (Section -:126)

This section deals with the procedural aspect of how the proceeding under section 125 may take place and where the proceeding should take place. It states that the proceeding may take place against any person in any district-

a) Where he is, or

b) He or his wife resides, or

c) He last resided with his wife, or, as the case may be, with the mother of the Illegitimate child.[8]

It also states that all the evidence must be taken in the attendance of the person against whom maintenance is to be ordered, but if that person knowingly avoids summons then the evidence can be taken without that person.

Alteration in Allowance under Section: - 127

Alteration means an instruction to increase, decrease or remove the allowance ordered previously. . This is usually done keeping in mind the law of equity. If the position of the person giving the maintenance changes, then the magistrate can order to increase, decrease or revoke the order of maintenance depending upon the circumstances.

Further, section 127(2) states that the magistrate shall cancel or revoke any order given under section 125 by him, in consequence of any decision of a competent civil court. Furthermore, according to section 127 (3), If the woman has taken the allowance under any personal law after divorce or if a woman voluntarily waives her right to maintenance, or if she has remarried, then, the magistrate can cancel the order of maintenance.

Enforcement of Order of Maintenance (Section: - 128)

Section 128 lays down the conditions for enforcement of an order of Maintenance. It says that a copy of maintenance order is given free of cost to the person in whose favor it is made. In the case of children, the copy is given to the guardian of the children. Ifany magistrate has given an order of maintenance under section 125 of CrPC then it can be enforced by any other magistrate of India where that person who has to give the maintenance is residing.

Conclusion

The main objective of chapter 9 of the Code of Criminal procedure, 1973, is not to punish a person, but to provide a remedy for those who need maintenance. Its objective is to avoid the suffering of the people in need who are dependent on the other person and give them a speedy solution. The fact that these provisions do not distinguish between people of different religion and have no relation to any personal laws makes it a unique law. It also has provision to provide maintenance during the proceedings which helps the wives in need.

[1] Hindu Adoptions and Maintenance Act, 1956, No. 78, Acts of Parliament, 1956 (India). [2] Mangat Mal v. Punni Devi, (1995) 6 SCC 88. [3] Smt Yamunabai Anantrao Adhav v. Ranantrao Shivram Adhav, 1988 AIR 644. [4] The Indian Majority Act, 1875, No. 9, Acts of Parliament, 1875 (India). [5] Shahbuddin s/o Sharfuddin v. State of UP and Smt Shakeela, I (2006) DMC 626. [6] Pandurang Baburao Dabhade v. Baburao Baburao Dabhand And Anr (1980) 82 BOMLR 116. [7] Abdulmunaf v. Salima, 1979 Cri LJ 172. [8] Code of Criminal Procedure, 1973, §126, No. 2, Acts of Parliament, 1974 (India).

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