MAINTENANCE UNDER CRIMINAL PROCEDURE CODE: AN EXPLAINER

Authors:

Shreya Taneja, Amity Law School, Delhi

Nithya Sowmya, TNNLU

DEFINITION OF MAINTENANCE AND ITS APPLICABILITY:

The term Maintenance has not been defined in Code of Criminal Procedure, 1973. However, the concept of maintenance is provided for, under section 125 of Code of Criminal Procedure 1973 and it is also found under personal laws. The provision of maintenance is enacted primarily for social justice, more particularly to protect women, children and old and infirm parents who are unable to maintain themselves. It can be stated that these provisions are enacted by the Legislature, keeping in mind Article 15(3) and Article 39 of the Indian Constitution.

Though personal laws provide for temporary and permanent maintenance[1], these laws only aim at providing the protection to the spouse who is unable to independently sustain himself. There is a wider scope of Section 125 of CrPC as it induces protection not only to the spouse, but also to children whether legitimate or not and also to old and infirm parents.

WHO IS ENTITLED TO CLAIM MAINTENANCE UNDER SECTION 125 :

As per section 125, there exist four categories of persons who are entitled to file a claim for maintenance before the Magistrate. This section lays down the rights of a Wife, Legitimate/Illegitimate Minor Child, Old/Infirm Parents and Children with Abnormalities in claiming maintenance. The following paragraphs deal with the entitlement and conditions relating to each party in an elaborate manner.

A. Wife

In the case of Chanmuniya vs Virendra Kumar Singh Kushwaha [2], the Supreme Court was of the view that broad and expansive interpretation should be given to the term ‘wife’ to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time. The Apex Court opined that strict proof of marriage should not be a pre-condition for maintenance under Section 125 of CrPC.

This view of the Supreme Court has been accepted as a precedent, and has been followed in recent cases as well[3].

Where the wife is capable of earning, the Supreme Court observed that merely because the wife is capable of earning does not a qualify for a reason to reduce maintenance awarded to her[4],

In Chaturbhuj Vs. Sita Bai[5], the Supreme court has held that even wives who have a source of earning, are entitled to maintenance. Merely showing that the wife earns some income does not rule out application of Section 125 CrPC. Whether the amount earned is sufficient for her maintenance is to be established using material on record. The Supreme Court has also overturned the High Court’s order, and has held that there is no reason why a judicially separated wife is not entitled for maintenance when a divorced wife is entitled to maintenance[6].

The Supreme Court has similarly stated that maintenance can be claimed under the provisions of the Protection of Women from Domestic Violence Act, 2005 (Domestic Violence Act) even if the claimant is not a legally wedded wife[7]. Courts have also re-iterated that Maintenance cannot be claimed by a spouse who is living separately of their own accord.

Under the explanation clauses of the same provision, the Act states two circumstances where the wife is not eligible to claim maintenance. One, where the wife had engaged in adultery. Two, where the wife does not have a sufficient reason to live separately from her husband, or if they live separately by mutual consent.

B. Legitimate or illegitimate child

The provisions under Section 125, also provide for the claim for maintenance in the case of a legitimate/illegitimate child. Under Section 3 of the Indian Majority At, a “Minor” is a person who has not attained the age of 18 years.

In case the child in question is a minor son, he is entitled to receive maintenance under Section 125, regardless of the legitimacy. In case of a minor daughter, two situations are stipulated. If Minor Daughter (Legitimate or Illegitimate) is unmarried, then she is entitled to get maintenance from her father and if she is married, then also she is entitled to get maintenance from his father. In such cases, the magistrate has to be satisfied that her husband does not have sufficient means for the maintenance of his minor wife.

C. Legitimate or illegitimate abnormal child who has attained majority

In cases where a child has attained majority, but has an injury or suffers from a physically/mentally disability, then the father of that child has to maintain the child. The child/ can claim maintenance on this ground.

D. Father or mother due to old age or infirmity

In the same manner, section 125(d) holds that the natural parents are entitled to claim maintenance from children. Here, the term mother has also been interpreted to include one’s adoptive mother.

PROCEDURE FOR MAINTENANCE PROCEEDINGS UNDER SECTION 126:

Section 126 provides that the proceedings under section 125 may be taken against any person in any district[8],

(a) where he is, or

(b) where he or his wife resides, or

(c) where he last resided with his wife, or as the case may be, with the mother of the illegitimate child.

The provision postulates that the evidence should be taken with the presence of the person against whom the order of maintenance is proposed. If one party is willfully avoiding the summons and not appearing in the court, the Magistrate can proceed with the hearing and pronounce the judgement ex-parte.

The Court in dealing with applications under section 125, has the power to make such order as to costs as may be just.[9]In Kumutham v Kannappan[10], the wife filed a petition for maintenance for herself and her daughter in the court of jurisdiction where she resides. The Supreme Court held that the petition is maintainable and also states that the word ‘in any district’ doesn’t mean any court in district which the husband lives, it means a court in the district where the jurisdiction of husband resides comes under.

ALTERATION OF MAINTENANCE UNDER SECTION 127:

According to Section 127, the Magistrate can make alterations in the maintenance given under Section 125 as maintenance or interim maintenance for wife, child, father or mother. Wherever the Magistrate finds it is necessary to change or update the amount, he has the power to make such alterations.

In cases where maintenance is given to the wife, an order which has been given under section 125, may be altered upon the Magistrate being satisfied of a few conditions.

In the first instance, if the wife has remarried to another person after her divorce, then the Magistrate has power to cancel such order. Secondly, in case the amount of maintenance has been given to her as the whole sum before or after marriage under any customary or personal law, the order of maintenance under section 125 of CrPC can be cancelled. Third, if a wife, for any reason waives her right to maintenance, the same cannot be claimed.

ENFORCEMENT OF ORDER OF MAINTENANCE UNDER SECTION 128 :

Under section 128, there are certain essential conditions to fulfil in order to enforce an order of maintenance. The provisions postulate that order passed under Section 125, a copy of the same is to be given free of cost to the concerned person. In case the order is passed relating to minor children, the same is to be handed over to their guardian. Prior to passing such an order, the Magistrate has to verify the identities of the parties and the proof of non-payment of the allowances. Any Magistrate in India, under which a person who is liable to pay maintenance resides, can enforce an order given under Section 125.

CONCLUSION :

Under the Criminal Procedure Code, 1973 the provisions relating to Maintenance provide both, a more comprehensive as well as a wider ambit for determining cases relating to Maintenance. These provisions enable the Court to determine the necessity, situation and liability of parties, who are not just spouses, but also in the case of parents and children, in varying instances.

In the same manner, the provisions also lay out the instances where the claim for maintenance can be disallowed or canceled, giving both parties the opportunity to establish their case. Thus, the provisions under the Criminal Procedure Code, 1973 have been enacted to ensure the protection of one’s rights where such individuals are unable to fend for themselves.

[1] Section 24 and 25 of Hindu Marriage Act 1955, Section 36 and 37 of Special Marriage Act 1954, Section 36 and 37 of Divorce Act 1869 applicable on Christians, Section 18 of Hindu Maintenance and Adoption Act 1956, Section 3 of Muslim Women(Protection of Rights on Divorce )Act 1986 [2] (2011) 1 SCC 141 [3] Kamal & ors v. M.R Mohan Kumar Crl.A. Nos. 2368-2369 of 2009, The Supreme Court reiterated that settled principle of law unlike other matrimonial proceedings, a strict proof of marriage not essential in claiming maintenance under Section125 [4] Shailja & Another v/s Khobbanna (2018) 12 SCC 199 [5] AIR 2008 SC 530 [6] Sanju Devi v. State of Bihar Crl.A. No. 4057 of 2015 [7] Lalita Toppo v. State of Jharkhand and anr. Crl.A 1656 of 2015 [8] Sec.126 of Criminal Procedure Code, 1973 [9] Sec.126(3) of Criminal Procedure Code, 1973 [10] Kumutham v. Kannappan, (1998) 5 SCC 693

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