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Sec 125 To 148 CRPC
Sec 125 To 148 CRPC
SYNOPSIS:
A. Introduction
B. Persons to whom maintenance is payable (Sec. 125)
C. Wife's right to maintenance
D. Child's right to maintenance
E. Parents' right to maintenance
F. Procedure for the proceedings (Sec. 126)
G
A l t e r a t i o n i n m a i n t e n a n c e a l l o w a n c e (Sec, 1 2 7 )
.
H. Persons entitled to maintenance
I. Persons not entitled to maintenance
A. INTRODUCTION:
This provision was added under the amended Code of Criminal Procedure 1973. If
a wife or child or father or mother is neglected or not maintained, then there are two
remedies open to them.
1. Suit under the Civil Law.
2. Proceedings under Criminal Procedure Code. (Sec. 125 to 128). The Criminal
Procedure Code tries to give quick relief with the least Court expenses to the
persons who claim maintenance.
This provision is made with an assumption that it is the natural and
fundamental duty of every person to maintain his wife, children and parents, if
they are not able to maintain themselves.
Relief can be sought under this Section by deserted wives and children
and destitute parents.
A First-Class Magistrate upon proof of such neglect or refusal of the above person
can order a monthly allowance for maintenance on such monthly rates as he thinks
fit.
The Magistrate may order the father of a minor female child whether married or not
to make such allowance till she attains majority and gets married and if the minor
female child is married, then the Magistrate, if he is satisfied that the husband of
such minor female child is not possessed of sufficient means, then he may make
such monthly allowance for maintenance of such minor female child.
Interim maintenance:
During the pendency of the proceeding for monthly allowance for maintenance, the
Magistrate may order the husband to make a monthly allowance for the interim
maintenance of his wife or child or father or mother and the reasonable expenses
of such proceeding to such person as the Magistrate may direct.
Such application for interim maintenance and expenses tor proceeding should be
disposed of within sixty days from the date of service of notice of the application to
such person.
In the absence of strict proof of marriage, if a husband and wife are living
together, and if the Magistrate is convinced of the marriage and the paternity of
the child born out of such wedlock is proved, then the Court presumes in favour
of such marriage unless the party denying the marriage rebuts such
presumption.
Thus, the object of this provision is to safeguard the interests of the destitute
women, children or parents who have been abandoned.
iii. Rajathi Vs. C. Ganesan, AIR 1999 SC 2374:
There should be neglect or refusal by husband to maintain the wife. If the husband
is living with another woman and the wife refuses to live with him, it is considered to
be a willful neglect to maintain the wife.
The Supreme Court had held that after decree of divorce is passed, the wife
is under no obligation to live with her husband. But though marital relations
come to an end by the decree of divorce, she continues to be wife within the
meaning of Sec. 125 CrPC.
Sec. 125 takes into account all the above three modes by which a wife is
divorced, and allows maintenance.
3. The wife shall not be entitled to maintenance if she refuses to live with
her husband without a reasonable ground.
But in case of physical and mental cruelty, impotency of the husband, and
remarriage of husband, keeping a mistress etc, the wife may refuse to live
with her husband, and maintenance can be claimed.
4. 4. It must be proved that the husband has sufficient means for paying
the allowance. If there is no proof of refusal or neglect of maintenance
of wife, then there can be no allowance of maintenance.
The term 'women' under the provision includes both divorced and
judicially separated females not yet remarried.
5. If a person falls to pay the maintenance amount as ordered by the
Magistrate without sufficient cause, then the Magistrate can issue a
warrant for levying the amount due from him as in the manner
provided for levying fines and may also sentence him for his failure to
pay whole or part of each month's allowance for maintenance, interim
maintenance and expenses of proceedings for a term extending upto
one month.
The application for the recovery of maintenance amount, etc., must have
been filed by the claimant within a period of one year from the date on which
the amount became due.
6. If such person invites his wife to live with him and if there are
reasonable grounds for her refusal, even then order for payment of
separate maintenance amount may be given to the wife by the
Magistrate.
7. If the wife lives in adultery or wrongfully refuses to live with her
husband or lives separately by mutual consent, then the maintenance
amount may not be granted.
Proof of a single act of adultery is not sufficient to disentitle the wife from
getting her maintenance amount. It means a continuous course of conduct,
and not a single act of immorality.
However, the marriage with the claimant must be legitimate and there must
be proof of relationship of husband and wife.
During the maintenance proceedings, if the husband contends that his wife was
of immoral character or he was prepared to live with her, then the Magistrate
should conduct an enquiry and cancel the order if the husband succeeds.
The maintenance of children is a statutory duty of the father. If the children are
illegitimate, even the refusal of the mother to handover the child to the father
does not release him from giving maintenance.
The Supreme Court did not accept this contention and held that Dower and
maintenance are different and payment of dower did not exclude the right of the
divorced wife from claiming maintenance. The Supreme Court came to this
conclusion based on the passages from Holy Koran. It thus held that the divorced
wife is entitled to be maintained by the husband till her marriage. It also held that
Section 125 of Cr.P.C overrides the personal law in the event of conflict between
the two.
Since the judgement of Supreme Court created furore from Muslim religious sects,
the Parliament overruled the Supreme Court judgement by passing Muslim Women
(Protection of Rights on Divorce) Act, 1986.
According to this Act. the husband’s liability to pay maintenance ceases once Uie
dower is paid in full and in the event that the divorced wife is unable to maintain
herself her relatives who are entitled to inherit her properties must maintain her and
if she has no properties then the State Wakf Board must maintain her.
Section 125 Cr. P.C is applicable only if both husband and wife agree for its
applicability.
In this case, it was held that the maintenance amount awarded under Sec. 125
Cr.P.C. is adjustable against amount awarded in matrimonial proceedings under
Sec. 24 of Hindu Marriage Act.
c. Hem Raj Vs. Urmila Devi (1997):
The Court held that the wife should obey the decree of Restitution of
Conjugal Rights and should not refuse to abide by it and make a complaint that the
husband has refused to maintain her.
Minor child, legitimate or illegitimate minor married daughter, major children with
mental or physical defect or injury even if the mother can maintain the children, the
father is liable to maintain and his liability is absolute till the child ean maintain
himself.
The children can claim maintenance even if the mother is living separately,
and refuses to come to her husband under a decree for restitution of conjugal
rights.
A child need not be a minor but should be unable to maintain itself due to
mental or physical abnormality or injury.
a. K. K. Nath Vs. Kanchan Bala Nath:
Here, it was held that though the mother of the child was not the wife
of the father who is in custody of the ehild, the child was entitled to
maintenance.
'Unable to maintain itself means that they are unable to earn their
livelihood.
b. Noor Saba Khatoon Vs. Mohd. Quasim, (1997 SC 3280):
In this case, it was held that the children of muslim parents are entitled to claim
maintenance under Sec. 125 Cr.P.C. for the period till they attain majority or
are till they are able to maintain themselves, whichever is earlier.
If the child is a female, the period of maintenance is till her marriage. This right
of the children is absolute even if they live with the divorced mother and not
restricted by the divorcee's right to claim maintenance.
In this case, it was held that granting of maintenance to minor unmarried daughter
till her marriage under Sec. 125 is not an interference with Sec. 20 (3) of the Hindu
Adoption and Maintenance Act, which also provides the right of minor girl for
maintenance from parents after attaining majority till marriage.
Parents may claim maintenance from any of their children. Maintenance shall be
payable from the date of the order or date of application of maintenance.
In this case, it was held that if the parents claim maintenance from a married
daughter, it must be verified whether she has independent income apart from her
husband's. The parents must be unable to maintain themselves.
iv. Application for taking action against non-payment of maintenance amount
should be made within one year from the date, when it becomes due. (if
such application is dismissed for default, a second application after lapse
of one year may also be considered).
There is no appeal from such order but revision may lie to the High Court and the
Sessions Court.