When Should Maintenance Order be Altered?

Introduction:

In India, besides the Personal law, Part IX of the Code of Criminal Procedure, 1973 (Cr.P.C.) also consists of provisions w.r.t the concept of Maintenance. Section 125 to 128 comprehensively talks about a remedy (that is of maintenance) in a setup wherein one is dependent on another. A question that arises very often is why a subject-matter of civil nature is included in the Cr.P.C.? The primary reason/justification for the same is based on the idea of delivering social justice without any delay. That is to say, it is a remedy which is more speedy and economical in comparison to that available in the civil courts, especially to the needy persons which these provisions talk about. Although our focus would be to understand S. 127 of Cr.P.C. which primarily deals with alteration of maintenance order/allowance, we shall also briefly touch upon S.125 for our better understanding.

It is pertinent to note two essential points:

1. Power to grant maintenance and to deal with such matters is of a judicial character. Only the Judicial Magistrate of the First Class has such powers u/s 125 of Cr.P.C. (Also refer to S.461(g))
2. The provisions contained in S. 125 to 128 of Cr.P.C. are applicable to people belonging to all religions and have no relationship with personal laws.[1]

What is Maintenance under Indian Law?

The term ‘maintenance’ is not anywhere defined in the Cr.P.C. but the Apex Court has adjudged[2] to import the meaning given u/s 3(b) of the Hindu Adoption and Maintenance Act, 1956. The section says that maintenance includes, “provision for food, clothing, residence, education and medical attendance and treatment.”

The maintenance law in India under this code confers a duty upon a man to pay an amount to those who are dependent on him. It may be the child, wife or parents to which it is provided in order to maintain themselves. Considering the societal setup, the concept is based on the principle of social justice and the natural duty of a man.[3] Thus, it aims at keeping a check on the socio-economic position of women, children and elderly persons through the legal means.

It is to be noted that as per the Amendment Act, for the purpose of this article as well, the term maintenance/maintenance allowance would also include “Interim Maintenance”.

What are the essential conditions for granting maintenance?

We shall briefly look into a few provisions of S.125 of the Code in order to know the persons entitled to claim maintenance and further the essential conditions required for granting maintenance. Precisely, S. 125 (1) outlines those who are to be paid with the maintenance allowance by the man due to the fact that they are unable to maintain themselves. It includes legally wedded wife (including the divorced wife)[4], his legitimate or illegitimate children, his legitimate or illegitimate abnormal child who has attained majority and his father or mother.

Essential elements for granting allowance u/s 125 includes:

1. The person from whom the maintenance is claimed must have sufficient means to provide. That is to say, the person must have the physical, mental and financial capability to support the person/s claiming the allowances.
2. The person from whom the maintenance is claimed must have neglected or refused to maintain the person claiming it. Note: The onus of proof lies on the claimant.
3. The claimant must be unable to maintain himself/herself.
4. Special Conditions when maintenance is claimed by the wife. (to be discussed in the next paragraph)

Alteration in maintenance allowance:

In this section, we shall look into exception/alterations/cancellation of the order for maintenance once the procedure u/s 126 is followed by the magistrate to pass it.  For this S. 125 and S.127 is of utmost importance.

S.125 brings us to the last point we discussed in the previous section regarding the special condition wherein maintenance is claimed by the wife from her husband. Clause 4 and 5 of S. 125 lays down important exceptions/grounds for cancellation of maintenance allowance. The magistrate is empowered u/s 125 (5) to cancel the order of maintenance in the following cases:

1. The wife is living in adultery, or Here, the word “living in adultery” is to be emphasised. This rules out a single act of adultery committed by the wife. The words used are indicative of an adulterous course of life[5] and outright adulterous conduct where she lives in quasi-permanent union with another man.[6] Though, in this case, the burden of proof shits on to the husband if he challenges the claim on this ground.

2. W/o sufficient reasoning, she simply refuses to live with her husband, or

Here, what constitutes sufficient reasoning depends on the facts and circumstances.[7]

3. The couple is living separated by mutual consent.

Here, a divorced couple has to be differentiated from a separated couple.

S.127 specifically deals with the alteration in allowance. Analysis of S.127 will bring out the following pointers:

1. 127(1) talks about alteration which can be made by the Magistrate on the proof change in circumstances.

Here, this provision mentions a change in the circumstances of any person. The word ‘any person’ would include the claimant and the person from whom the maintenance is to be claimed. That is to say, there has to be changed in the circumstances of the person receiving or providing allowance. An application for alteration (increase or decrease in allowances) can be made upon a change in circumstances of either party.[8] The change can be pecuniary or other circumstantial changes. For instance, If a person paying maintenance loses his job and the new job pay is considerably lower in comparison, wherein the person does not have sufficient means to provide the amount fixed of allowance, he may apply for alteration.

Another important aspect in this provision is the phrase that a magistrate may make such alteration ‘as he thinks fit’. Here, the magistrate is empowered with discretion to make the alteration, it is not mandatory.

2. After a decision by a competent civil court, if the Magistrate believes that his orders u/s 125 needs to be cancelled or altered, he shall do it accordingly.

In this scenario, it is important to focus on the word “shall” which obligates the magistrate to follow the judgment of the competent civil code.[9] For instance, if an order of maintenance of a particular amount is passed by the Magistrate and post that any competent civil court orders the couple to live together. In this case, the magistrate has to necessarily cancel or vary his order accordingly.

3. If an order is passed u/s 125 in favour of a divorced woman and she remarries after the date of divorce, the magistrate shall (mandatorily) cancel the order of allowance from the date of remarriage. (Refer S. 127(3)(a))
4. If an order is passed u/s 125 in favour of the woman who has been divorced by her husband and she has received allowances under personal or customary laws, the magistrate shall (mandatorily) cancel such order. (Refer S. 127(3)(b))
5. If an order is passed u/s 125 in favour of the woman who divorced her husband and voluntarily surrenders/relinquishes her rights of maintenance, the magistrate shall (mandatorily) cancel the order from the said date. (Refer S. 127(3)(c))

Conclusion:

The Magistrate of First Class is being empowered to deal with granting, altering/cancelling the maintenance allowances. It is safe to say that the power given to the magistrate is well balanced. While in some case, the magistrate has the liberty to grant and make alteration as he deems fit, at the same time in other cases there happens to be a compulsion to follow the court orders.

References:

[1]Nanak Chandra v Chandra Kishore Agarwal, AIR 1970 SC 446.

[2]Mangat Mal v. Punni Devi, (1995) 6 SCC 88.

[3]SavitabenSomabhaiBhatiya v State of Gujarat and Ors., AIR 2005 SC 1809.

[4] Criminal Procedure Code, 1973, S.125, No.2, Acts of Parliament, 1974.

[5]Thanikchalam v Dakshayani, 1966 Cri LJ 221.

[6]Kasthuri v Ramasamy, 1979 Cri LJ 741.

[7]6 RV Kelkar, Criminal Procedure 852 (EBC, 2014).

[8]MeenakshiAmmal v J Balakrishnan, 1980 Cri LJ 1201 (Mad).

[9]Bhagwat Singh v. Surjit Kaur, 1981 Cri LJ 151, 154 (P&H).

This Article is Written by Aashvi Shah, 3rd Year, B.A.LL.B (Hons.) Student at Institute of Law, Nirma University.

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