This article has been written by Varsha Thapa of 2nd year B.B.A. L.L.B. studying in Army Law College,Pune.
Maintenance
Section 125 of CrPC Provides maintenance to the wife, child and parents. The court after the party has appealed for Section 125 of the code, the court may order the respondent, that is the husband, to maintain the wife who is unable to maintain herself financially by providing monthly maintenance to her. However, there is an exception in the provision. For the purpose of providing maintenance to the wife, the husband has to be financially strong and sufficient enough to support his wife after divorce and at the same time, the wife must not be living in adultery or living separately with her husband without any sufficient reasons. Even if they are living separately in mutual consent, then also the wife will not be entitled to any sort of maintenance. Whenever the judgment is passed in favor of the wife, the court has to make sure that the husband has sufficient means to provide maintenance to the wife. The court also needs to make sure that the wife after the separation does not have enough money to maintain herself and who has not remarried after the divorce.
Purpose of Section 125 CrPC
1) The main reason behind Section 125 of the CrPC is to protect the one who are dependents and are unable to support themselves Financially. This legislation is passed specially to safeguard women, children, and elderly parents.
2) The main goal of Section 125 of the CrPC of 1973 is to support abandoned wives, neglected and abandoned children, and vulnerable, elderly, and disabled parents. As a result, this provision promotes social welfare and social service. The Magistrate’s authority is primarily preventative in character rather than penal or punitive.
Why Does CrPC Offer Maintenance Services?
It is common knowledge that personal laws often include measures for maintenance. A number of laws, including the Hindu Marriage Act of 1955 and the Hindu Adoption and Maintenance Act of 1956, make provisions for maintenance. So why was it necessary to include it in CrPC? Students’ minds are never clear on this question.
The Criminal Procedure Code, not the Civil Procedure Code, governs the legal requirements for maintenance. This is done to tighten up the process. To eradicate destitution (poor) was the goal.
Order for maintenance
A Magistrate of First Class may issue a maintenance order directing the subject to pay his wife, child, or parents a monthly stipend.
The allowance’s value is arbitrary. Any amount is possible. After taking into account the circumstances and family position, the Magistrate grants such a person maintenance.
When a person refuses or rejects to support his dependents, such as his wife, children, or parents, a maintenance order is issued.
The dependents who must be supported by a person include:
- Wife
- Parents
- Minor Children
- Major Children
Maintenance to Wife
A wife who is unable to support herself is referred to as maintenance to the wife.
- A divorced woman who hasn’t remarried is likewise included in the definition of “wife.”
- The woman cannot make a maintenance claim if she is working and making a substantial income.
- If a wife lives in adultery, refuses to live with her husband, or lives separately with both of their consent, she is not entitled to maintenance from her husband.
- A woman in a live-in relationship may also be entitled to maintenance if it is determined that the relationship has the features of marriage and those traits are established.
- If the woman gives up her right to support her husband, the Magistrate shall cancel the order of maintenance from the date of order.
Maintenance to minor
- When a person is under the age of 18, they are considered a minor.
- Whether their children are biological or adopted, a person is responsible for their maintenance.
- When the husband of a minor girl is also a minor and does not have the financial resources to support her, the father’s concurrent responsibility still applies.
Maintenance to major child
- A person is responsible for upholding his major daughter’s unwed status.
- The husband is a wife’s protector after marriage. However, a young girl’s guardian and caretaker up until marriage is the father.
- The father is only responsible for his significant son’s maintenance when he is mentally or physically abnormal or in a situation where he cannot care for himself. For instance, if he is paralysed, it is assumed that he cannot care for himself.
Maintenance to parents
If a parent cannot care for themselves, it is the responsibility and obligation of the child to do so. The 2007 Maintenance and Welfare of Parents and Senior Citizens Act places a strong emphasis on providing for elderly parents who, for whatever reason, are unable to provide for themselves.
Interim maintenance
During the course of the proceedings, the party seeking maintenance may also submit an application for interim maintenance. The Magistrate must issue an order directing the party to receive a monthly allowance for interim maintenance if they determine that the party must be permitted with it.
The application for interim maintenance must be decided upon within 60 days of the day the applicant was notified of the application.
The interim maintenance is due and payable as of the date of the order, or as of the date of application if the magistrate so directs.
Disobedience of Maintenance orders
A warrant for one month’s jail may be issued by the court against the individual against whom a maintenance order has been obtained if they fail to pay maintenance. The provision for punishment does not release a person from their obligation to uphold. It is a way to coerce and collect maintenance payments from such a person.
Procedure for Maintenance under section 125
Any person may be subject to the maintenance procedure:
- Where such a person resides
- Where he or his wife resides.
- Where he last resided (lived) with his wife or the mother of the illegitimate child.
The Magistrate may hear the case ex-parte if someone makes an attempt to avoid appearing in court. If the person demonstrates a valid reason for their absence from court, the ex-parte order might be annulled. Within three months of the ex-parte order’s date, it may be reversed.
Cases related to Maintenance
- Kalyan Dey Chaudhary vs Rita Dey, 2017
In this case, the Supreme Court ruled that the amount of maintenance should be determined according to the parties’ current circumstances rather than being pre-determined. It will always be decided based on the surrounding facts and circumstances. There is no such thing as being too much or too little. Every time, both parties must be able to justify the maintenance order.
- Shalija vs Khobbanna, 2018
The court ruled that a wife who is capable of earning and a wife who really does so are two different things in this situation. They cannot be placed within the same framework. Women’s wages must be voluntary and not the result of coercion.
A wife is not capable of supporting herself if her only means of subsistence is beggaring or doing menial labour. The role of a wife must be one where she may fulfil her nutritional demands.
However, the court must also carefully examine situations in which a wife purposefully quits her job or quits her job in order to obtain support from her husband. In this situation, maintenance is not permitted by the court.
References