Special requirements where the wife claims maintenance
(i) The wife ought not to be living in adultery: According to Section 125(4) of the Code of Criminal Procedure, no wife living in adultery would be entitled to receive the maintenance allowance from her husband stated under Section 125 or even the interim maintenance and the expenses of the proceeding. The term “living in adultery” is understood to mean outright adulterous conduct on part of the wife even when she lives in a state of quasi-permanent union with a man she committing adultery with.
(ii) Wife must not refuse living with her husband without reasonable reasons: Section 125(4) of the Code of Criminal Procedure states that no wife who refuses to live with her husband for reasons that are unreasonable shall be entitled to receive an allowance of maintenance from her husband. The wife should have sufficient reasons for living away from her husband and will only then be eligible to claim maintenance allowance from her husband. The peculiar facts and circumstances of every case will decide what can be counted as “sufficient reasons” for a wife to live separately from her husband. The Civil court’s conclusions on the subject of desertion by the wife is binding on the Criminal Court’s hearing petition which is related to maintenance. Just in case the civil court, when directing divorce, comes to hold that the wife is ineligible for any sort of maintenance whatsoever, her right to claim maintenance in criminal court will not be deprived to her, even though criminal courts have to consider the civil court’s decision when deciding on cases. In the same vein, the civil Court’s findings on a fact based on which interim maintenance has been rejected by it is not final and binding in the criminal Court. According to the detailed explanations in Section 125(3) of the Code, in case a husband has entered into a union of marriage with another woman or even keeps a mistress, it would be taken as a fair and just ground for a wife refusing to live with her husband.
(iii) The wife should not be living separately, as decided mutually: Section 125(4) of the Code of Criminal Procedure makes it clear that if a couple has decided to mutually agree on living separately, the wife no longer is eligible to receive a maintenance allowance from her husband. However, a wife who is divorced will not be considered as a wife who remains separately from her husband as someone who lives by mutual consent. A divorced wife is the one who, once her marriage has been dissolved lives separately from her ex husband because of a change in her marital status. A divorce decree that has been granted by mutual consent cannot stand to disentitle a wife from her claims to monthly allowance of payments. Living separately by mutual consent only arises as long as the marriage continues to subsist and both the parties agree to live separately by consent that is mutual. In cases where the marriage stands terminated because of an agreement, the wife is eligible to claim maintenance from her former husband if only she does not remarry someone else and is not able enough to maintain herself. However, there may be times in cases of divorce by mutual consent where the wife had completely given up her right to seek maintenance. In such cases a wife cannot later try to claim the maintenance that she had once relinquished.
It must be noted here that a DNA Test for determining paternity cannot be directed in petitions under Section 125. Under Section 125 of Cr.P.C., the Magistrate in a proceeding was unjustified in directing a DNA test to be done to determine the child’s paternity.
In the case one fails to pay the directed maintenance allowance, imprisonment could not exceed more than one month.
A warrant must be issued under Section 125 (3) of the Code for payment of maintenance when an application seeking maintenance has been filed by a person who is eligible for claiming maintenance under Section 125 of the Code.
In the event that such a warrant has been issued for making the payment of maintenance, it is a must that it be levied as the amount which stands due, in the method given for imposing fines. If the person does not respond to this warrant by making the adequate payment, then the Magistrate has the power to order imprisonment. However, the period of being detained in prison cannot exceed a month. Hence, the fact whether there were arrears of twelve months or any period of time stands irrelevant.
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