There are some essential conditions which should be fulfilled for claiming and granting maintenance
Sufficient means to maintain the person
If any person has sufficient means for maintenance, then it is his duty to maintain his wives, children and parents. If sufficient means are not available, then it will be a perfect and valid defence for people who are legally bound for maintenance of wife, children and parents.
Neglect or refusal to maintain
Any person neglects or refuses to maintain his wives, children and parents in malafide intention or in any type of egoistic behaviour on the demand for maintenance by them.
The person who claims maintenance must be unable to maintain himself/herself
It is a very important condition for granting maintenance that a person who is claiming maintenance must be unable to maintain himself/herself. For example- If a wife is earning well, then she can not claim maintenance under this Section. In the case of Abdulmunaf v Salima, it was held that the wife who is hale and healthy and is sufficiently educated to earn for herself but refuses to earn from own and claim maintenance from her husband will be entitled to claim maintenance but that her refusal to earn under the circumstances would disentitle her to get complete amount of maintenance.
Special provision for maintenance of minor married girl
If the husband of a minor daughter does not have sufficient means to maintain her, then it is the duty of her father to give maintenance. In these circumstances, married minor daughter is entitled to get maintenance from the father. In the case of Alok Banerjee v Atoshi Banerjee, a person who is unable to maintain themselves.
Quantum of maintenance
Quantum of maintenance means the amount of maintenance. Quantum of maintenance depends on the standard of living. For example- If any issues raised in a rich family, then demand for maintenance will be more as compared to poor family according to their standard of living in a prior life.
In simple words, the Court should also make sure that whether maintenance granted is justified according to the status of a family or not
Procedure for maintenance
Section 126 of Cr.PC deals with “Procedure for maintenance”. This Section says the following:
- Proceeding under Section 125 may be taken in the following district:
- Where he is, or
- Where he or his wife resides, or
- Where he last resided with his wife or mother of an illegitimate child.
- Evidence to be taken in the presence of a person against whom maintenance is to be ordered.
- If a person is wilfully avoiding summons, then ex-parte evidence is taken in that case.
Alteration in allowance
Alteration in allowance means an order to increase, decrease or remove/cancel the allowance which was ordered by the Magistrate under Section 125.
According to Section 127(1), if a magistrate ordered to give allowance for maintenance under Section 125 according to the conditions of parties at that time, but if the present conditions of parties have changed, then he can also order to alter the allowance. For example-
- Husband had a well-settled job and means for maintenance, on this basis the Court has ordered him to maintain his wife and to allowance under Section 125. But in the present condition, the husband has no job and means for maintenance. Then, the Court can alter the allowance and can reduce the amount of allowance.
- If a wife was not having any job or she was unable to maintain herself and she got the order of allowance under Section 125. But after some months, she is well settled and she has the means to maintain herself. In this case, the Court can order to remove or cancel allowance
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