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Maintenance Under Section 125 of CrPC

Introduction

Section 125 of CrPC is a means to provide a speedy, inexpensive and effective remedy against persons who refuse or neglect their duty to maintain persons dependent on them. The section discharges a social function in order to achieve and maintain societal balance. It also comes under Article 15 (3), which is further reinforced by Article 39. It is an important section that deals with women’s human rights and are a legal instrument of social relevance that is used to uphold the rights of the weaker section of society.[1] They are, in a way, aimed at preventing starvation and vagrancy relating to the commission of crimes.[2]

Scope of Section 125 of CrPC

Maintenance under the law is defined as an amount of money paid to a dependent person such as a wife, child or parent so that they can support themselves financially. It is also defined under Section 2(b) of the Maintenance and Welfare of Parents and Senior Citizen Act, 2007, as a term that “includes provision for food, clothing, residence and medical attendance and treatment.”

Generally, such matters of maintenance are dealt with the personal laws of the religion to which the parties belong. However, this section is applicable to all religions and the personal law under it holds no value in terms of authority[3], although, it is relevant to establish the validity of a marriage and cannot be excluded altogether.[4] There is no conflict between Section 125 and provisions of any personal law on maintenance. It may however be taken into consideration by the magistrate when fixing the allowance to be paid if some maintenance has already been awarded under personal law. Otherwise, it is distinct and separate from the personal laws of the parties and is truly secular in nature.[5]

The provision provides for interim maintenance, which means the court can order the husband to maintain his wife the matter is being decided, however, this amount can be altered or even cancelled by the magistrate if the situation of the parties in the matter changes.[6] Such applications can be filed in the concerned district. The purpose of the section is social in nature.[7]

Who Can Claim Maintenance Under Section 125 of CrPC

Wife

Any wife, whether of major or minor age, who is unable to maintain herself is entitled to maintenance under Section 125 (1) (a). According to Explanation (b), the term ‘wife’ under this section included an un-remarried divorced wife. Earlier, till the judgment in the Shah Bano Begum case, a divorced wife was not entitled to maintenance and this caused a lot of injustice to women, especially of the Muslim community. The marriage in any of these cases has to be valid according to law. A woman despite the unfortunate situation, is in a relationship with a married man is not entitled to maintenance, this may cause injustice but the Supreme Court stated such inadequacy can only be cured by the legislature.[8] Strict proof of marriage is not absolutely essential, since this section is meant to be a tool for social justice and therefore given to a broader interpretation, however, High Courts and the Supreme Court went back and forth on this issue till the Supreme Court decide that a man and a woman living together as husband and wife for a reasonably long period of time, maybe considered under this section as a valid proof for married life and shall be treated as such for matters of maintenance.[9] If a husband remarries, the first wife still comes under the definition, is entitled to maintenance even if the second marriage is valid under personal law, even if she has consented to the marriage. Proof of neglect in such a case is not necessary for the wife to make her case for maintenance.[10]

There are manners where this maintenance can be excepted. Under subsection (4) of Section 125 the court need to ensure that the husband has sufficient means to maintain his wife, if he doesn’t, then this section does not apply. Furthermore, the wife should not be living in adultery separately, unless according to the court her refusal to live with her husband is justified. This applies even if the separation is mutual. If a marriage is void or annulled under Section 12 of the Hindu Marriage Act, a wife is not entitled to maintenance.[11]

Child

A child who is still a minor according to the Indian Majority Act, 1875, i.e. a person who has not attained the age of 18 years, whether they are legitimate or illegitimate, or married or unmarried, are entitled to claim maintenance under Section 125 (1)(b). Furthermore, if a minor girl’s husband is unable to support her, then the father of such a girl is required to maintain her according to the Proviso in this section. The child has to have been born for such a claim to exist, maintenance of a fetus when the woman is still pregnant does not come under this section. Even in a case where the child is under someone else’s custody, the father of such a child still has the obligation to maintain them.

The maintenance of a child under this section is based on the Paternity. This is irrespective of the legitimacy or illegitimacy of the child, therefore a child whose parents are not legally wedded is still entitled to maintenance by law. If paternity cannot be established then the child has no claim.[12] The child may be adopted or natural-born.

After attaining majority, a child, whether legitimate or illegitimate as long as they are not a married daughter can claim maintenance under Section 125 (1)(c), by reason of physical or mental abnormality or injury and the child is unable to maintain themselves pertaining to such reason. A major unmarried daughter not suffering from any mental or physical ailment cannot claim maintenance under Section 125 CrPC.[13]

Parents

According to Section 125 (1) (d), a mother or a father who is unable to support themselves is entitled to claim maintenance under this section from their children. Although the word ‘his’ is used, it applies to both male and female children of the parents. Indian society casts a duty on the children to maintain the parents and this social obligation applies equally to a daughter.[14]

It is not clear whether the interpretation of the words ‘father’ and ‘mother’ include adoptive father and mother, and stepfather and mother, or not. Bombay High Court stated in a judgment that while the term father under Section 3 (20) of General Clauses Acts includes an adoptive father, the term ‘mother’, with regard to the section’s object and intention, would have to be given its natural meaning and will not include a stepmother.[15] Supreme Court later in a judgment liberally construed the section and stated that a stepmother with no child of her own and whose husband has expired, or if her husband is living, is unable to support her then she is too is unable to support herself, can claim maintenance from her stepson.[16]

The word ‘parent’ has not been used in subsection (4); this has been interpreted by the High Court of Andhra Pradesh in N. B. Bhikshu v. State of Andhra Pradesh[17], to mean that only a legitimate child has the obligation to maintain their parent and the parent may claim against the unfulfillment of such obligation against any child if there are more than one.

Features of Section 125 of CrPC

The maintenance claim is based on the following conditions, listed as follows:

1. Sufficient means to maintain

It is the most fundamental condition that order of maintenance against a person can be passed only if he or she themselves have “sufficient means to maintain” the person who has the claim, and neglect or refuses to do so. As stated by Delhi High Court, it means that as long as a man is healthy and able-bodied, he is held as being possessive of the means to support his family and he cannot be relieved of such obligation simply because he is unemployed, in debt or insolvent.[18] The burden of proof is on the person claiming that he has no sufficient means to maintain. The obligation is not removed simply because he is unemployed. The High Courts have been harsher in the interpretation as is also displayed in the case Hardev Singh v. State[19], where the court stated that if a person cannot pay such maintenance allowance because he is a monk, then it is his duty to throw off the yellow robe and work. The reason for such interpretation is attributed to the social justice factor and the protection of the weaker section of the society, which comprises women, children, and the elderly.

2. Neglect and Refusal to maintain

‘Neglect’ is used to mean a failure to maintain even when no such demand is made against the maintainer, the term basically means a disregard of duty which could be either willful or intentional.[20] The ‘refusal’ to maintain is when there is a clear intentioned refusal to perform his duty, this refusal may be expressed or even implied by the conduct of the husband. The burden of proof for this lies with the claimant. It is at the offset essential that the wife is living with the husband for her to claim maintenance, but such a condition can be removed from her claim if the magistrate finds that she has a justified reason for doing so, for example, if the husband has taken in a new wife and if it is ritually permitted by their personal law, the claimant wife may refuse to live with the husband still be able to claim maintenance. The husband may in such a case be considered neglectful and refusing to fulfill his obligation, even if his condition is that the claimant wife should reside with him and his other wife in order to claim maintenance.[21]

3. The claimant must be unable to maintain himself/herself

One of the essentials for a wife to claim maintenance is her inability to maintain herself. She does not have to specifically plead that she is unable to maintain herself. But in a Karnataka High Court case, the court held that if the wife is healthy and of quality education and still unable to maintain herself then she can still claim maintenance but these facts will affect the amount awarded to her.[22]

4. Quantum of maintenance

The magistrate was required to award maintenance not exceeding Rs. 500 till the Amendment Act No. 50 of 2001. No there is no limit set for a maximum amount, it’s left up to the Magistrate to fix a monthly rate as he or she may deem fit for the case. The rate has to be fixed and determinate and not progressively increasing, however, it can be altered from time to time according to Section 127. If the wife and child are both claimants against the same person then it is not within the section to award them a joint payment, each one has a separate claim which may be awarded as such.

Enforcement of Section 125 of CrPC

There are two modes of enforcement of the section listed under sub-section (3) which are

  1. Warrant for Fines
  2. Imprisonment may extend to one month until payment is made, if after the warrant if part or whole of the amount remains unpaid.

Warrants are only issued if an application for the same is made to the court within a period of one year from when this amount becomes due, according to the first proviso to Section 125 (3). The Supreme Court has made it clear that the imprisonment provided for under this section is not present as an alternative to the liability of the payment of the maintenance, rather it is a mode of enforcement so that the liability is discharged at the earliest.[23] The liability is only discharged when the payments are made.

Conclusion

The object of Section 125 of CrPC is to protect the rights of a dependent person, who find themselves in a harsher position than others and do not have the means and resources to maintain themselves. It has usually been the wives, children, and parents in such matters. However, since the societal aspect weighs heavy on the instrumentality of this section, it becomes important for the courts to consider the facts on a case-to-case basis, and ultimately remain vigilant that justice is done to all parties. It is important that the changing cultural facts and dynamics be taken into consideration while moving forward. So far, the interpretations made by Supreme Court have been fairly liberal and flexible, and the manner of the decision by High Courts have been slightly different but it only displays that the cultural and societal aspects play out differently in different regions and it should be left up to the wisdom of the courts in such matter unless otherwise required.

[1] Ramesh Chandra Kaushal v. Veena Kaushal AIR 1978 SC 1807

[2] 41st Law Report, Law Commission of India, 1969

[3] Nanak Chandra v. Chandra Kishore AIR 1970 SC 446

[4] Yamunabai v. Anantrao AIR 1988 SC 644

[5] Mohammed Ahmed Khan v. Shah Bano Begum (1986) 2 SCC 556

[6] Vikas Yadav v. State of U.P., (2016) 9 SCC 541

[7] Vimala (K.) v. Veeraswamy (K.) (1991) 2 SCC 375

[8] Savitaben Somabhat v. State of Gujarat AIR 2005 SC 1809

[9] Chanmuniya v. Virender Kumar Singh Kushwaha (2010) 10 SCALE 602

[10] Syamalamma, 1988 CrLJ 1891

[11] Krishna Gopal v. Usha Rani 1982 CrLJ 901

[12] Smt. Ahalya Bariha v. Chhellia Pedhan, 1992 CrLJ 493

[13] Abhilasha vs. Prakash [Crl. Appeal No. 615 of 2020

[14] Vijaya Manohar Arbat v. Kashirao AIR 1989 SC 1100

[15] Ramabai v. Dinesh, 1976 Mah LJ 565 (Bom)

[16] Kirtikant Vadodario v. State of Gujarat (1996) 4 SCC 479

[17] 1993 CrLJ 3280

[18] Chander Prakash v. Sheila Rani AIR 1968 Del 174

[19] 1995 CrLJ 1652 (All)

[20] Ishar v. Soma Devi AIR 1959 Punj 295

[21] Chand Begum v. Hyder Baig, 1972 CrLJ 1270 (A.P.)

[22] Adbulmuaf v. Salima 1979 Cr LJ 172

[23] Kuldip Singh v. Suriender Singh AIR 1989 SC 232

This Article has been Written Ishani Kumar Singh, LL.M Student at National Law Institute University, Bhopal.

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