The term maintenance has not been defined by the Code of Criminal Procedure, 1973. Section 125 to Section 128 of the Code has made provisions for maintenance of wives, children and parents.
Section 125 is a substantive provision conferring a right of maintenance on certain persons eventhough the Code is a procedural law.
II. Nature and Scope
i. According to Section 125 if any person having sufficient means neglects or refuses to maintain his wife, children or parents who are unable to maintain themselves, a Judicial Magistrate First Class may order such person to pay maintenance to them.
ii. Section 125 serves a social purpose preventing starvation, destitution and vagrancy of dependants.
iii. The word maintenance has liberal interpretation and includes appropriate food clothing and shelter and other basic necessities.
iv. Under section 125, the Magistrate is conferred with preventive Jurisdiction and not punitive or penal.
III. Constitutional validity
i. Article 15(3) of the Constitution states that nothing shall prevent state from making laws for women and children and therefore section 125 is enacted.
ii. According to Article 39 of the Constitution, men and women equally have the right to an adequate livelihood.
iii. Section 125 safeguards the rights of women and children and parents which are weaker sections of the society and therefore cannot be said to be arbitrary to Article 14.
IV. Who may claim maintenance?
Under Section 125 following persons can claim maintenance :
i. Any persons wife who is unable to maintain herself can claim maintenance from such person even if she is a minor.
ii. Only a legally married wife can get maintenance and second wife or mistress cannot get maintenance. A woman is not entitled to maintenance merely because she had stayed together with a person.
iii. A wife who has been divorced and has not remarried is entitled to maintenance.
i. Legitimate or illegitimate minor child, whether married or not, unable to maintain itself can claim maintenance under Section 125. A minor is a person who has not attained the age of majority under the Indian Majority Act.
ii. The liability of a father will continue to maintain his married minor daughter till she attains the age of majority, if her husband is a minor too.
iv. A child is not entitled to claim maintenance after attaining majority unless it is unable to maintain itself by reason of any physical or mental disability. If the child is a married daughter, it is her husbands responsibilty to maintain her.
v. Right of the child to claim maintenance from the father is independent from the right of the mother. Therefore, a child is entitled to claim maintenance even if the mother is not entitled.
i. A person has to maintain his father or mother, unable to maintain himself or herself.
ii. Such parents include step-father and step-mother or adoptive mother.
iii. A married daughter may also be held responsible for maintaining her parents. Married daughter can also be liable to maintain her parents.
V. Against whom maintenance can be claimed?
As per the SC decision in Vijaya Manohar Arbat v. Kashirao Rajaram, maintenance can be claimed against father, husband, son, and married daughter.
i. For being entitled for maintenance under section 125, the applicant must be unable to maintain himself/herself.
ii. The respondent against whom maintenance is claimed must have sufficient means to maintain the applicant.
iii. A wife claiming maintenance :
a. must not be living in adultery
b. must not have refused to live with her husband without sufficient reasons.
c. must not be living separately by mutual consent.
Following are the grounds on which the application can be contested :
i. If conditions above mentioned are not satisfied.
ii. Where application is made by wife, husband can contest that :
a. she is living in adultery with another person
b. she refuses to stay with him without sufficient reasons
c. or they are living separately by mutual consent
d. if civil court passes order in above cases
e. is such woman remarries
iii. A father can take the ground that there is no physical or mental disability if the application is made by a major son.
iv. A father can take the ground that husband of the minor daughter has sufficient means to maintain her if the application is made by a minor married daughter.
VIII. Procedure : S.126
1. Proceedings may be initiated against a person in any district based on :
i. his residence
ii. his or his wifes residence
iii. where he last resided with mother of illegitimate child
2. Evidence has to be recorded by the Magistrate in the presence of bot the parties or in the presence of their pleaders.
3. According to proviso of section 126,if a person is willingly avoiding service or willingly neglecting to attend the court then the Magistrate can pass an ex-parte order.
4. Such an exparte order can be challenged within 3 months by showing good cause for not appearing.
IX. Amount of Maintenance
1. Prior to the Amendment Act of 2001, amount of maintenance was fixed at Rs. 500 but such limit was subsequently removed.
2. Considering the facts and circumstances of the case the Magistrate may grant any amount of Maintenance.
3. The amount of maintenance may be calculated from wither the date of the order or from the date of maintenance.
4. The Magistrate may pass an order for granting interim maintenance.
X. Alteration and Cancellation S.127
i. Maintenance once granted may be altered or canceled according to the facts and circumstances of the each case.
ii. Maintenance may be altered or canceled on the following grounds:
a. wife is living a adulterous life.
b. wife refuses to live with husband without sufficient cause
c. mutual consent
e. remarriage, etc.
XI. Enforcement S.128
Order of maintenance, against whom it is granted, may be supplied with a copy thereof free of cost. Such an order may be enforced by a Magistrate anywhere in India where the person against whom such an order is made resides.
XII. Mode of enforcement
1. Warrant for levying amount :
A Magistrate may issue warrant for levying such dues of maintenance as if it were a fine and can sentence such a person to imprisonment which may be upto one month. Property of a person may be attached by a Magistrate in case of non payment.
An application to issue warrant must be made within one year from the date on which maintenance became due.
XIII. Civil Court v. Criminal Court
If the petitioner has chosen alternative remedy under civil law, he cannot be permitted to continue proceedings under section 125. It is well settled principle that the Judgment of the Civil Court prevails over the Judgment of the Criminal Courts.XIV. Statutory liability and personal law.
Provisions of Section 125 cannot be suspended by personal, customary, special laws of parties as it is a statutory right.
Mohd. Ahmad Khan v. Shah Bano Begum
The question before court was whether s.125 applies to divorced Muslim wives, because Muslim law states that amount of maintenance is to be paid to the wife during the period of Iddat.
The SC held that irrespective of Muslim law, liability of Muslim husband to provide for maintenance of divorced wife u/s 125 does not come to an end with the expiry of period of Iddat if she is unable to maintain herself.
XV. Muslim Women (Protection of Rights on Divorce) Act, 1986
This act was enacted by the Parliament with a view to reverse the decision in Shah Bano Case and restoring the Muslim personal Law by limiting the husbands liability up to the period of Iddat. Therefore the right of a Muslim women to claim maintenance after Iddat period was taken away and section 125 was suppressed. However parties may agree if they want their case to be governed by Section 125 to Section 128. of the Code. In absence of such arrangement, the Magistrate may order the Relatives or the Wakf Board to maintain such divorced Muslim woman.
XVI. Revision :
Revision can be applied for to the High Court or Sessions Court against the order of Maintenance. No appeal lies against such order.