Family lawyers on Order for Maintenance of Wives and Children

Opinion of Chandigarh Family lawyers on Order for Maintenance of Wives and Children (Section 125 of CrPC)

Legal provisions pertaining to order for maintenance of wives and children, under section 125 of the Code of Criminal Procedure, 1973. Maintenance proceedings are not something directed at punishing people for their behavior or neglect in the past. Maintenance is ordered to cap a state of vagrancy that may make people resort to crime when they are unable to support themselves. Maintenance is sought by such people when they are supported by a moral claim. The provisions stated under maintenance of the Code of Criminal Procedure are applicable to all, irrespective of their religions and have no link with the personal laws of the concerned parties.

People who are entitled to claim maintenance

Under Section 125(1) of the Code, the people enlisted below are eligible to claim maintenance under particular circumstances:

(i) Wife: According to Section 125(l) (a) of the Code, in the case that a man has sufficient means and yet declines to maintain his wife (who cannot maintain herself) or neglects her, a Magistrate of the first class, when presented with proof of the refusal has the power to order such a man to pay a monthly allowance to the wife at a monthly rate that is deemed fit by the Magistrate. In this situation, a “wife” would include any woman who has been divorced by the husband or has sought divorce herself but has not married again. The age of the wife is not relevant in this case. She may be a minor or a major, depending on how the law views her. A “wife”, to suit what Section 125 mandates, would mean a woman who is legally married. The legality of the marriage is governed by the personal laws that are applicable to both the parties. In case the legal validity of the marriage is contested, the applicant would be required to prove the validity of his/her marriage. As such, a marriage that was solemnized by the mere exchange of garlands stands invalid. Section 125(l)(a) of the Code states that not every wife who claims that she been neglected by her husband or whose spouse refuses to maintain her can be granted adequate maintenance allowance. Maintenance can only be granted to wives who are completely incapable of fending for themselves, not even those who are maintaining themselves but with some difficulty. To be specific, the phrase ‘unable to maintain herself’ does not intend to mean that the wife should be deep in a state of destitution, living on the street, begging and wearing tattered clothes to be entitled to file an application under the concerned Section of the law. If a husband voluntarily agrees to maintain his wife, according to what civil obligations dictate, it cannot be counted as either refusal or neglect on part of the husband. However, if the husband is paying some amount to his wife but the amount is insufficient to meet even the basic necessities of life, the circumstances clearly fall under ‘neglect’ and refusal to maintain the wife, as per Section 125 of the Code. It was held that Section 125 of the Code has been enacted in the interest of the wife and one who wants to avail the benefit under sub-section (l)(a) of Section 125 must establish that she is the wife of the person concerned. The issue can be decided upon only by referring to the respective law applicable to the parties. Only in cases where such a relationship with reference to personal law is established can the application for maintenance be maintained. In this case, the issue whether Section 125 is attracted or not, cannot be answered except by a reference to the appropriate law that the parties are governed by.

Even when a woman’s marriage to a man is solemnized according to Hindu rites, having a spouse who is living at the time of this marriage renders the second marriage null and void in the eyes of the law. Naturally, the woman will be exempted from getting the status of a legally wedded wife and will not be eligible to claim the benefits that fall under Section 125 of the Code of Criminal Procedure. The wife is ineligible to claim and receive an allowance from her husband under three circumstances.
(i) if the wife is living in adultery, or
(ii) if she declines living with her husband and without any reasonable cause, or
(iii) if they have been living separately by the consent of both the spouses.

As per Section 125 of the Code, it is the fundamental as well as natural duty of a man to maintain his wife. Section 125 affords a statutory right and this cannot be affected by any personal law. The right accorded the wife by the provisions under Section 125 is independent of personal law. Claiming protection of Mohammedan Law in derogation of the statutory provisions of the Code is not permissible at all. A wife is always entitled to maintenance under Section 125, regardless of the fact that she may not be entitled to maintenance under the personal law. Where an application under Section 125 of Cr.P.C. that claimed maintenance from the appellant had been filed by the respondent. It was learnt that the appellant and the respondent had entered into marriage some four decades ago but had been living separately for more than two decades now. It was stated by the wife that she was unable to maintain herself as she was unemployed.

Maintenance proceedings are not something directed at punishing people for their behaviour or neglect in the past. Maintenance is ordered to cap a state of vagrancy that may make people resort to crime when they are unable to support themselves. Maintenance is sought by such people when they are supported by a moral claim. The phrase “unable to maintain herself” is taken to mean that the wife is unable to meet the same standard of living on her own, as she did before when she lived with her husband. It would not take within itself the efforts that were made by the wife to survive somehow after being deserted by the husband. Under what the law mandates the burden is first placed upon the wife as she is required to show that the means of her husband are comfortable and sufficient. There is no dispute as to the appellant having the required means. Yet there is an important and inseparable condition that also needs to be satisfied. It states that the wife must show that she was unable to maintain herself. These are two conditions that are added to the requirement that the husband must have neglected or declined to maintain his wife. The appellant places material to prove that the respondent/wife has been earning some sort of money. But this is insufficient to rule out application of Section 125 as it then has to be established that with the amount she is earning the respondent-wife is able to maintain herself. Whether or not the deserted wife was not able to maintain herself is something that needs to be decided based on the material that was placed on record. In cases where the wife’s personal income is deemed insufficient, she can claim maintenance under the provisions of Section 125. The objective here is to assess whether or not wife is in a position to maintain herself in the same way as she had been used to when her husband was present.

It is declared in Mohd. Ahmed Khan v. Shah Bano Begum that a Muslim husband who has sufficient means must provide maintenance to his divorced wife who is unable to maintain herself. Under such circumstances, a wife is entitled to the maintenance even in the event she declines to live with the Muslim husband because he has entered into another marriage that falls within the limits of four wives that the Quran allows him to have. It has been declared by The Bench of the Supreme Court that a Muslim divorced woman who is unable to maintain herself is entitled to maintenance from her ex-husband until the time she gets married again. The Bench of the Supreme Court rejected the plea that stated that maintenance is payable for only for period of the iddat. The judges referred to the aiyats of the Quran and subsequently declared that in the Quran an obligation is imposed on the husband to provide maintenance to his divorced wife.

The argument that deferred Mahr (dower) counts as a form of payment on the divorce of a wife and thus such payment under the personal law excludes the payment of any maintenance by the husband to the wife was rejected by the judges. It was clarified by the judges that Mahr is the amount from the husband which the wife is entitled to, in consideration of the marriage. They also stated that as per the Quran, the dower is a mark of respect as well as consideration for the Muslim woman. So it should not be understood as a consideration for divorce.

It was also sated by the experienced judges that the religion professed by a spouse has no relevance under Section 125 of the Code of Criminal Procedure since it is a measure of social justice that has been founded on the basis of a person’s obligation to the society in order to prevent destitution an vagrancy. In case there is any point of dispute between what is mandated by the personal law and Section 125, the Supreme Court has directed that the language of Section 125 makes it clear that it will overrule personal law. This particular judgement drew flak from Muslim clergy and the Muslim Women (Protection of Rights on Divorce) Act, 1986 was subsequently introduced by the government. This act governs the claims of Muslim wife who is divorced. A provision under this act deems it possible for Muslim spouses to choose to be governed by the Code of Criminal Procedure.

Based on this act, if the relatives of a divorced Muslim wife are not capable of maintaining her, as is required by personal law, they can apply to the State Wakf Board for providing her maintenance. Because the Muslim Women (Protection of Rights on Divorce) Act, 1986 does not include any provision that excludes application of the Family Courts Act, a claim for maintenance made by a divorced Muslim woman under Chapter IX (Sections 125 to 128) of the Code of Criminal Procedure shall be only directed at the Family Court.

Personal law must be overridden by The Code of Criminal Procedure if the two stand in conflict at any time. A proceeding that falls under Sections 24 and 25 of the Hindu Marriage Act, 1955 cannot function as a bar to a proceeding under Section 125 of the Code. In the very same way Section 18 or 20 of the Hindu Adoption and Maintenance Act, 1956 does not annul the provisions of relief under Section 125 of the Code.

(ii) Child: As Section 125(1)(b) of the Code of Criminal Procedure states, in case any person with sufficient means neglects or refuses to maintain his legitimate or illegitimate minor child, whether the child is married or not, but unable to maintain himself/herself or as per Section 125(1)(c) of the Code, his legitimate or illegitimate child (but not a married daughter) who has attained adulthood, where such child is, due to some physical or mental abnormality or injury unable to maintain itself, a Magistrate of the first class may, upon being given proof of such neglect or refusal, order such a person to provide a monthly allowance for the maintenance of such child, at such monthly rate, as the Magistrate deems fit, and to pay the same to such person as the Magistrate may direct from time to time.

However, the magistrate has the power to order a minor female child’s father, as per Section 125(1)(b) to pay such an allowance till she turns into an adult, in case the Magistrate is shown and told that the minor female’s husband does not have the necessary means to support her. A “minor” in this case is a person who has not obtained adulthood/majority under the provisions of the Indian Majority Act, 1875.

Even post the Muslim Women (Protection of Rights on Divorce) Act, 1986 has been enforced, a Muslim girl qualifies to get maintenance from her father.

Although the word “child” has no definition in the Code, it refers to a male/female who has not attained majority, meaning the age of 18, as mandated by the Indian Majority Act, 1875 and someone who is not competent enough to enter any contract or enforce any claim that comes under the law.

(iii) Father or mother: As per Section 125(l)(d) of the Code of Criminal Procedure, in case any person with sufficient means neglects or refuses to maintain his father or mother who is unable to maintain himself/herself or as per Section 125 of the Code, a Magistrate of the first class may, upon being given proof of such neglect or refusal, order such a person to provide a monthly allowance for the maintenance of the father and mother, at such monthly rate, as the Magistrate deems fit, and to pay the same to such person as the Magistrate may direct from time to time.

The daughter, regardless of being married or unmarried is also liable to maintain her parents. The Indian society believes that it is the duty of the children to maintain their parents and this responsibility is applicable to the daughter too. Section 125 of the Code does not clarify whether the terms ‘father’ or ‘mother’ include ‘adoptive father’ or ‘adoptive mother’ or ‘stepfather’ or ‘stepmother’. As per Section 3(20) of the General Clauses Act, 1897, however, the word ‘father’ shall mean to include an ‘adoptive father’. Although the term ‘mother’ has not been defined similarly, it has been maintained (based on the word father) that the term ‘mother’ includes ‘adoptive mother’ as well. Alhough the ‘mother’ does not include ‘stepmother’, a stepmother who has no natural children of her own is eligible to claim maintenance, under Section 125 of the Code, from her stepson, in case she is a widow or if her husband who is alive, is also not capable to support and maintain her. But if she has natural born children and her husband is also alive and has the capability to earn, she is ineligible to claim maintenance from her stepson. In case the parents have two or more children, the parents are allowed to seek remedy against one or more of them, at the place or the places where they reside. Under Section 125(1) of the Code, only a husband or a father or a son or a daughter, as the case may specifically be, may pay maintenance to the respective people, namely, wife, child, father or mother, but only under certain circumstances. Section 125 does not dictate the mother to pay maintenance to father or son and daughter.

The Concept of interim maintenance:

According to the second proviso to Section 125(1) of the Code of Criminal Procedure, during the time that the proceedings regarding monthly allowance for the maintenance under Section 125(1) of the Code are pending, such people may be ordered to give a monthly allowance for the interim maintenance of his wife or such child, father or mother, the expenses of such proceedings which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may deem fit , from time to time.

In addition to this, an application for the monthly allowance for the expenses and interim maintenance for proceeding under the second proviso shall, to the extent possible, be discarded within a period of sixty days from the date when the notice of the application was served to such a person.


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