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help@vakilkaro.co.inWho can claim and get maintenance under section 125 of the Criminal Procedure Code 1973
Index
Introduction
Who can claim and get maintenance?
Scope and purpose of the maintenance
When can the Wife claim and get maintenance?
Are Muslim wives can claim for maintenance?
Legitimate or illegitimate minor Son and daughter
Can an abnormal child (legitimate or illegitimate) who has attained a majority claim for maintenance?
When can Father or mother ask for maintenance from their child?
Special provision for minor married girl
Exceptional circumstances where the Wife can’t claim for maintenance
The wife can't be denied Maintenance because she is well-educated
What is the procedure for maintenance?
Punishment for non-payment of maintenance
Application format for Maintenance
Application format for interim maintenance
Conclusion
Introduction:
'Maintenance' has not been defined in the Code of Criminal Procedure, 1973. Chapter IX of the Code of Criminal Procedure deals with the provisions for maintaining wives, children, and parents. 'Maintenance' in the legal sense is money (alimony) that one must regularly pay to one's ex-wife, husband, or partner, especially when they have children together. 'Maintenance' in the general sense is to keep something in good condition. Every man must take care of his wife, children, and aged parents, who cannot live independently.
The object of section 125 is not to punish but to provide social justice. Chapter IX of the Code of Criminal Procedure is necessary to protect the rights of a divorced wife, children, and aged parents. It is designed to protect against abnormal liveliness. Maintenance is the duty of every person who has sufficient means for this. In this chapter of CrPC, various provisions related to maintenance are given, such as who is entitled to maintenance, conditions required for grant of maintenance, the procedure for maintenance, change of previous Order, Enforcement of an order of maintenance, etc.
Who can claim and get maintenance?
Section 125 of the CrPC deals with "orders to retain wives, children, and parents." As per section 125(1), the following persons can claim and receive maintenance:
- husband's Wife,
- legal or illegal minor child from his father,
- a legitimate or illegitimate minor child (physical or mental abnormality) can get maintenance from his father, and
- Father or mother can get maintenance from his son or daughter.
Scope and purpose of the maintenance:
The following are the scope and objectives of the maintenance proceedings for wives, children, and parents:
- Proceedings not punishable: The main object of Chapter IX of the CrPC is not to punish a person who is not bound to maintain it.
- Its main objective is to save people suffering from homelessness by providing prompt treatment.
- It does not differentiate between persons belonging to different religions or castes.
- It has nothing to do with the personal laws of the parties.
When can the Wife claim and get maintenance?
A wife can claim and receive maintenance from her husband subject to the following conditions:
- Her husband divorces her, or
- She obtained a divorce from her husband, and
- She has not remarried, and
- She is not able to maintain herself.
Are Muslim wives can claim for maintenance?
Muslim wives can also claim maintenance under the CrPC, although they have a separate Act (Protection of Muslim Women's Rights on Marriage Act). A wife cannot claim or receive maintenance from her husband subject to the following conditions:
- Wife living in adultery, or
- Refuses to live with their husband without any valid reasons, or
- They are living separately by mutual consent.
Legitimate or illegitimate minor Son and daughter
- 'minor' means a person who has not attained the age of 18 years. Minor son is entitled to maintenance under section 125 of CrPC.
- In the case of an unmarried Minor Daughter (Legitimate or Illegitimate), she is entitled to get maintenance from her father.
- If she is married, she is also entitled to maintenance from his father. Nevertheless, the Magistrate must be satisfied that her husband has no necessary and sufficient means to maintain his minor Wife.
Can an abnormal child (legitimate or illegitimate) who has attained a majority claim for maintenance?
Yes, an abnormal child who has attained a majority can claim for maintenance. Suppose any significant child (Legitimate or Illegitimate) is abnormal (mentally or physically unfit). In that case, the child's father has to maintain him, and he can claim maintenance on this ground of abnormality.
When can Father or mother ask for maintenance from their child?
A Father or mother can receive maintenance from the child subject to the following conditions:
- Natural father and mother can claim maintenance.
- The mother includes the adoptive mother; she can claim maintenance from the adoptive son.
- Parents can claim maintenance from their children. This claim cannot be defeated because the father failed to fulfill his parental responsibility. It is a statutory obligation.
- A childless stepmother can claim maintenance.
In the case of Pandurang Bhaurao Dabhade vs. Baburao Bhaurao Dabhade, the Bombay High Court has held that the father or the mother can claim maintenance under section 125(1)(d) if he is unable to sustain himself. But it is also necessary that if the parents claim maintenance for their children, the children should have sufficient means to support their parents and maintain the father or mother.
Special provision for minor married girl
If the husband of the minor daughter does not have sufficient means to maintain her, her father will have to provide the maintenance. In these circumstances, a married minor daughter is entitled to maintenance from the father.
Exceptional circumstances where the Wife can’t claim for maintenance:
1. The Wife should not live apart by mutual consent:
If a husband and wife live separately by mutual consent, then the wife is not entitled to get maintenance from her husband (section 125(4)).
2. The Wife indulges in adultery:
The wife shall not be entitled to receive maintenance from her husband or interim maintenance and the cost of proceedings, as the case may be if she lives in adultery. The term living in adultery refers to outright adultery, where the Wife lives in a semi-permanent union with the person she is committing adultery (section 125(4)).
3. The Wife refuses to live with her husband without sufficient reasons:
If a wife refuses to live with her husband, she shall not be entitled to receive a maintenance allowance from her husband. The Wife must not refuse to live with her husband without sufficient reason to get maintenance. What could be considered an adequate basis for the Wife's refusal to live with her husband would depend on each case's facts and circumstances (section 125(4)). According to section 125(3) of the Code, if the husband has entered into a marriage contract with any other woman or has a concubine, it shall be deemed a reasonable ground for his Wife's refusal to live with her.
Essential conditions for granting maintenance
Some necessary conditions must be fulfilled to claim and provide maintenance:
1. Adequate means are available for maintenance
- As per section 125(1) of the CrPC, the person from whom maintenance is claimed must have sufficient means to maintain the person or persons claiming maintenance.
- If a person is healthy and capable, he should possess means like immovable property or fixed employment. The term 'sufficient resources' should not be confined to essential economic resources but should refer to earning capacity.
- Earning potential or the ability to earn requires more than a fit state of mind or body. It requires earning, education, or experience and the opportunity to finance, push and accomplish. If a man is healthy and non-disabled, he should have the means to support his wife, children, and parents. An individual's ability to pay has to be proved to decide the quantum of maintenance.
2. Neglecting or refusing to maintain sought-after maintenance
- The person from whom the maintenance is claimed must have refused or neglected to maintain the person or persons who are eligible to claim the maintenance (Section 125(1) of Crpc)
- Neglect means omission or omission in the absence of demand, whereas 'refusal' implies failure to maintain after request or denial of obligation. Neglect or denial of support may result from words or conduct. It can be expressed or implied. Neglect or denial can mean more than just failure or omission. The burden of proving negligence is on the claimant.
- The wilful expression of negligence is a question of law though it has to be decided on given facts. 'Wilful' means designedly, deliberately of set purpose: the mind and the overt action moving together.
- Failure or omission may amount to neglect or refusal when duty is to maintain. Maintenance means proper food, clothing, and housing.
3. The person claiming maintenance should be unable to maintain himself:
- It is a critical condition for granting maintenance that a person claiming maintenance must be unable to maintain themself.
- For example, if a wife is earning well, she can not claim maintenance under this Section.
The wife can't be denied Maintenance because she is well-educated:
Case: Lovedeep Singh v. Gurpreet Kaur 2022
The Punjab and Haryana High Court have observed that a wife cannot be denied Maintenance on being well-educated and having done her MA in Hindi. A husband is legally and morally responsible for looking after his wife and children.
What is the procedure for maintenance?
Section 126 of Crpc deals with "Procedure for maintenance." This Section says the following:
- The amount is modestly consistent with the status of the family.
- Through the Amendment Act, 2001, the maximum limit of Rs 500/- per month was removed and fixed the time limit.
- A warrant is issued on every breach of the Order for levying the amount.
- The imprisonment of one month is the last resort when recourse to attachment and sale fail.
- The imprisonment is to pressure Enforcement and not a mode to satisfy the liability.
- If a person is deliberately evading a summons, then one-sided evidence is taken in that case.
Punishment for non-payment of maintenance:
- A warrant under section 125(3) of the Code for maintenance payment must be issued when an application is made by a person entitled to maintenance under section 125 of the Code.
- When such a warrant is issued to pay maintenance, it must be
imposed as a sum payable in the prescribed manner to levy a fine. If this warrant is not answered by payment, the Magistrate may order imprisonment, and in any case, the imprisonment may not exceed one month. Therefore, it is unimportant whether there were arrears of twelve months or any other period.
Application format for Maintenance
Petition by the wife under section 125, Crpc for maintenance:
In the Court of the Chief Metropolitan Magistrate, _______
Maintenance petition number
In the matter of:
Xyz, age: ____, W/o Abc, D/o _____,
Resident __________
………………………. Petitioner
Vs
Abc, age: ______, S/o ____________,
Resident ____________
……………………Respondent
Application for monthly maintenance allowance for Wife under section 125 of the Code of Criminal Procedure, 1973
The above name refers to the Petitioner respectfully as follows:
- The Applicant is a legally married wife observed as per Hindu customs and rituals on _______. Both of whom lived and lived together as husband and wife for 5 years in _____________. Attached here under Annexures 1 and 2 is a certified copy of the quotation from the relevant register and a copy of the marriage card.
- After the initial few months of marriage, the Respondent led a life of drunkenness and habitual lewdness. A Respondent is a man of unusual temperament and constantly loses all sense of decorum and uses abusive language.
- The Applicant had to face cruelty at the hands of the Respondent without any provocation, making the life of the Petitioner miserable by continuous abuse and extreme torture mentally and physically.
- Additionally, the Respondent stopped maintaining and fulfilling the basic demands of the Applicant, including household expenses. Ultimately, the acts of the Respondent here left no other option and compelled _________ to leave his matrimonial home as stated above for his ancestral home.
- The Petitioner is in a severe financial crisis and has become insolvent, unable to maintain himself and his parents. As the Applicant does not have any source of income, neither do they have any technical qualifications to be employed.
- The Applicant, along with his elderly parents, is subsistence on a meager pension amount of Rs.5,000 from his father, who is chronically ill due to recurring drug expenses, the Applicant is in the midst of a severe financial crisis and has become insolvent, is unable to provide herself or her parents, and their survival is at stake. Further details of the Applicant's assets and liabilities are listed in the Affidavit of Disclosure attached below, marked as Annexure A.
- The Respondent is financially sound and has multiple sources of income, earning a good amount of 1,00,000, mainly from his telecom business and other sources. Having enough resources, the Respondent has overlooked his responsibility to provide for his lawfully wedded wife.
- The above relationship between the parties has deteriorated to the extent that there is no possibility of compromise.
- Therefore, it is prayed that the Hon'ble Court may kindly grant:
- To direct the said Respondent to pay to the said Petitioner several ___________ per month as monthly maintenance or Order to pay lump sum amount, or at such rate as this Hon'ble Court may deem fit;
- 10,000/- for the maintenance of the said Petitioner from the date of application, as immediate interim relief to the Respondent, till the hearing and final disposal of this petition;
- Directing the Respondent to pay the said amount of _________ in lump sum towards the costs of this proceeding to pay the professional fees of the lawyer.
- To pass such other and additional reliefs as the Hon'ble Court may deem fit and proper.
VERIFICATION
I, permissible, Wife of Abc, aged __ years, Indian Inhabitant, Occupation – Unemployed, residing at ______________, solemnly confirm and declare that to the best of my knowledge and belief, everything stated in the initial petition is valid.
Petitioner
Solemnly confirmed at _______
______________ on this date
________ identified by.
Advocate on behalf of the petitioner
Application format for interim maintenance
Application for interim maintenance under section 125(3) Crpc
In the Court of Metropolitan Magistrate, ___________
N the matter of:
Xyz, age: ____, W/o Abc, D/o _____,
Resident __________
………………………. Petitioner
Vs.
Abc, age: ______, Son of ____________,
Resident____________
……………………Respondent
Subject: Application with prayer for grant of interim maintenance during the pendency of the main petition under section 125(3) of the Crpc
The above name refers to the Petitioner respectfully as follows:
- That the Petitioner has filed a petition under section 125 of the Code of Criminal Procedure for grant of maintenance in addition to the present application before this learned Court.
- The grounds listed in the main petition may kindly be read as part of the present application, as they have not been reproduced to avoid duplication.
- There is a prima facie case in favor of the petitioners and against the Respondent based on the grounds outlined in the main petition. And, if interim maintenance is not provided, the Applicant will face great difficulty in meeting his day-to-day expenses, as already mentioned that the Applicant is dependent on his father's pension.
- That the Applicant does not have any independent source of income nor does he have any qualification which can help in employing. In contrast, the Respondent has a good source of income, yet he must pay a pie to the Applicant for his maintenance, And he didn't care either. Thus the Respondent has breached the mandatory marital duties and obligations to maintain the petitioners.
- Therefore, it is most respectfully prayed that the application is allowed and the Respondent is ordered to pay an amount of _______/- to the Applicant as interim maintenance from the date of filing of the application on merit. Till his decision and to make the payment.
- The Respondent is also directed to pay the litigation expenses of the present petition to the petitioners.
Applicant.
Through Counsel.
(_____________)
Advocate.
VERIFICATION
I, Xyz, Wife of Abc, aged __ years, resident of India, Occupation - Unemployed, residing in _________, solemnly confirm and declare that everything stated in the preliminary petition is to the best of my knowledge and belief.
Petitioner
Solemnly affirmed at _______
On this date ______________
Identified by ________.
Advocate for the Applicant.
Conclusion
Maintenance is the duty of every person who has sufficient means for this. Nowadays, the scope of an amendment against an order passed under Section 125 has increased, and High Courts are increasingly accepting amendment applications under Section 397 to provide reasonable relief to the opposing party. There is no set rule that the courts have to follow in allowing or denying the revision application, and it depends upon the facts and circumstances of a particular case. Sometimes, even after separation, the Wife has enough means to support herself. Chapter IX of Crpc, it is necessary to protect the rights of a divorced wife, children, and aged parents, conditions required for grant of maintenance, the procedure for maintenance, change of previous Order, Enforcement of an order of maintenance, etc.
To Read This Article In Hindi - Maintenance under section 125 of the Code of Criminal Procedure, 1973
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