Section 125 of the Criminal Procedure Code, 1973 has been legislated as a tool for dispensing social justice. Under this, an effective remedy is provided to neglected people for seeking maintenance. But who all are eligible for it?
Who Can Claim Maintenance?
Section 125 enables any of the following people to claim maintenance
A woman is considered as the “wife” only if her marriage to the man is legally valid. Only a legally valid marriage to a man can accord the status of a “wife” to a woman.
For a marriage to be legal under Hindu laws:
- Both the parties must be Hindu
- The marriage should have been performed according to the customary rites of the spouses
- Neither party should have a living spouse when the marriage is solemnized
- Neither spouse should be found to be of an unsound mind
- The groom should be 21 years old, at least
- The bride should be 18 years old, at least
- Also, the spouses should not be related by Sapinda (as cousins) or should fall under the ambit of prohibited relationships.
- Under Hindu law, the second wife has no claim on maintenance because the law forbids a second marriage and it is automatically considered an invalid marriage. However, in the case that the husband concealed his first marriage from her, the second wife is eligible for claiming maintenance.
For a marriage to be legal under Muslim laws:
- Both parties should be Muslims having sound minds
- both the parties should have attained puberty, usually considered the age of 15.
both the individuals should have consented to the marriage
- they ought not to be temporarily or permanently prohibited from entering into marriage
- the woman should not be married to another man or observe iddat for another man
an ijab or proposal should be made
- an acceptance of the proposal, termed as qubul should be made
- The proposal as well as acceptance should be made at the same occasion. This signifies the establishment of the marriage and it comes immediately into effect.
both the proposal and the acceptance should take the Shariat into consideration
The proposal and acceptance should be witnessed by two men or a man and two women who happen to be Muslim adults of sound minds, know the bride and groom well and comprehend the proposal and acceptance.
Under the law, live-in relationships are considered equivalent to a marriage. A wife who lives separately from her husband for unjustifiable reasons or because of an agreement that was mutual, is not eligible for claiming maintenance. The term “wife” also includes women who are divorced but they should not be remarried on the date they file an application for claiming maintenance. Even if the period of the iddat has gone by, a divorced Muslim woman can claim maintenance in case she has not remarried. The wife’s age is of no relevance in seeking maintenance. She could be a major or a minor but she must not be living in adultery.
Both male and female children, regardless of the fact that they were born inside or outside the legally valid marriage of their parents care eligible for claiming maintenance. However, they must be minors to claim maintenance.
It is possible for adult children to claim maintenance in case that have a physical or mental abnormality that renders them incapable to maintain themselves. An adult daughter who is unmarried can also claim maintenance from her parents.
Minor girls who are married can claim maintenance from their parents till they attain the age of 18, only if their husbands do not have sufficient funds and means for maintaining them. Married adult girls, however, are not eligible to claim maintenance from their parents.
Mother and Father
Mothers and fathers, whether they are natural or adoptive, are eligible to claim maintenance from one or more of their children. Not just sons but daughters are also liable to pay maintenance to the parents. A step-mother may also claim maintenance but only if she is a widow who does not have any natural-born children.
Conditions for Granting Maintenance:
The person from whom maintenance is sought should be capable of paying the maintenance amount. Factors that make one able and capable include being employed, having a source of income, owning land and having a healthy body that can enable him/her to work.
The person must have neglected the claimant or refused to pay maintenance.
People who claim maintenance must not be able to maintain themselves. No maintenance will be given in case the claimant is adequately educated, healthy and capable of securing employment. Generally, it is wives and elderly parents who are granted maintenance. A wife is not disentitled from claiming her maintenance even if she earns. What is taken into consideration is whether or not she can maintain the same standard of living as before (the neglect or divorce) with her income.
What is the Amount of Maintenance that can be given?
Maintenance orders that come under Section 125 can only be heard by the Judicial Magistrate of First Class. A monthly allowance of maintenance that is deemed just and fair may be ordered by him/her. The amount is decided usually after assessing the income of the person, the prior standard of living that is presented as the status of the claimant and the individual earnings of the claimant. The maintenance should, by all means, help in ensuring that the same standard of living is maintained for the claimant. The amount directed must neither be so generous that it makes the claimant complacent to depend only on maintenance, nor so meagre that it plunges the claimant into destitution or a lower standard of living.
Maintenance can be paid either from the date when the application for maintenance was made or from the date when payment was ordered. This depends on the court’s assessment of cooperation and civic behaviour shown by both the parties.
Section 125 allows for a second application of maintenance under which the amount of maintenance can be increased with the course of time, or change in material prices and circumstances.
Enforcement of Maintenance Order
Once the maintenance order is passed, the claimant should be provided with a copy of the order, free of charges. The person who has been ordered to pay maintenance must obey what the court has ordered. If the person fails to do without justifiable reasons, a court warrant will then be issued for collecting the directed amount. The court warrant also has the power to attach the salary of the person or even any immovable property. If the person fails to pay maintenance even after the warrant was executed, the person can face imprisonment up to one month or till the time the necessary amount is paid, whichever of the two happens earlier. Application for enforcement of maintenance should be filed within 1 year from the date on which it became due, failing which, the application stands to be dismissed.
For more information, contact