Who can seek maintenance under section 125 of the CrPC?

    Introduction

    The term ‘maintenance’, has not been defined anywhere in the Code of Criminal Procedure, 1973. However, chapter IX, sections 125-128 of the code deals with the provisions for maintenance and provides for a speedy and effective remedy against a person who neglects or refuses to maintain their dependent wives, children, and parents. The main provision is contained u/s 125 which provides for who is liable for providing maintenance and who are entitled to claim it, while section 126 deals with the procedure and sections 127 and 128 deal with the alteration in the allowance u/s 125 and enforcement of the order of maintenance, respectively.

    As already mentioned, ‘maintenance’ is not defined in the code; in law, it generally means alimony (money) that a person is required to pay regularly to someone entitled for their maintenance. As per this chapter, it is the wife, children, and parents who are entitled.

    Talking about the applicability of this chapter, it is applicable to all persons of all religions and has no relationship with the parties’ personal laws held in Nanak Chandra v. Chandra Kishore.[1]

    NOTE- Only the Judicial magistrates of the first class are empowered to deal with such matters of maintenance.[2]

    Main provision

    The provision u/s 125 provides for the people who can seek maintenance which includes not only a wife but also children and parents.

    1.  Who is liable to provide maintenance? As per the said section, a person who has sufficient means, if neglects or refuses to maintain his wife or child/children or parents, then the judicial magistrate of the first class may order him to provide maintenance to such person at such monthly rate as such Magistrate thinks fit.
    2. Persons entitled– Section 125 provides as to who can seek maintenance.  Following are the persons who are entitled and may seek maintenance under this section:-
      • Wife, if she is unable to maintain herself;
      • His minor child, whether legitimate or illegitimate and whether married or not, and is unable to maintain itself;
      • His major child( daughter being not married) whether legitimate or illegitimate, is unable to maintain itself because of any abnormality (physical or mental) or any injury;
      • His parents who are unable to maintain themselves.

    Let’s deal with these in detail-

    • Wife– Under this section, the term ‘wife’ refers only to a legally wedded wife as held in Savitaben Bhatiya v. State of Gujarat [3]. The Supreme Court held that the legality of a marriage would be determined by the personal laws applicable to the parties[4]. The mere fact that the parties had lived together as husband and wife in the absence of legal and valid marriage would not confer the status of a wife. It may just be relevant to raise only a presumption in law of their being husband and wife, held in Anupama Pradhan v. Sultan[5], which is rebuttable on the proof of the marriage’s invalidity. While in some cases it has been held that it is not necessary to provide a strict test of legal marriage and it would be sufficient for the woman to claim maintenance on the ground of the parties been living together as husband and wife.[6] This provision can be supported from a decision of the Supreme Court in Rameshchandra Daga v. Rameshwari Daga[7], to grant maintenance for the prevention of destitution. However, a woman in a live-in relationship has a remedy to seek maintenance under the Protection of Women from Domestic Violence Act, 2005. 

    President: Powers and Duties

    A divorced woman is also included within the meaning of ‘wife’, for this section, as given in explanation (b) of section 125(1). Whether she has been divorced by, or has obtained a divorce from her husband and has not remarried, is entitled to maintenance to secure social justice for women in the society. A Muslim woman even if had obtained divorce decree can claim maintenance under this section held by the court in the case of Zohara Khatoon v. Mohd. Ibrahim[8].  However, as a consequence of the decision in the case of Mohd. Ahmed Khan v. Shah Bano Begum[9], the Muslim Women (Protection of Rights and Divorce) Act, 1986 was enacted applicable to divorced Muslim women. However, still, some High Courts are of the view that sections 125-128 are applied to Muslim women. 

    In the case of Ravindran Nair v. Sakunthala Amma[10], the Kerala High Court held that a woman could not surrender her right to get maintenance.

    • His legitimate and illegitimate child– Minor child is entitled to claim maintenance from father, whether it is married or not. In the case of a married daughter who is a minor, she is entitled to claim maintenance from her husband or father or both. If the magistrate is satisfied that her husband is not possessed of sufficient means, then may order her father to make such allowance until she attains her majority (proviso 1). A Muslim father’s such obligation is not affected by the Muslim Women (Protection of Rights on Divorce) Act, 1986.[11]
    • His legitimate or illegitimate abnormal child who has attained majority- If a child, who has attained majority is unable to maintain itself due to any physical or mental abnormality or injury then it is entitled to maintenance. This does not apply to a married daughter who has attained majority. It is her husband who has her responsibility.
    • His parents– The father or/and mother is also entitled to claim maintenance. But the section has not made it clear as to whether it also includes ‘adoptive father’ and ‘stepfather’ and ‘adoptive mother’ and ‘stepmother’. ‘Father’ shall also include an ‘adoptive father’ as per section 3(20) of the General Clauses Act, 1897, and similarly, ‘mother’ includes ‘adoptive mother’ though, the term ‘mother’ is not similarly defined as ‘father’ in the Act. However, ‘mother’ would not include a ‘stepmother’ as it has been held that according to the object and intention of section 125, it should be given its natural meaning[12]. But, a widowed stepmother who is childless or a stepmother whose husband is incapable of maintaining her, then she may claim maintenance from her stepson but cannot do so if she has no born son(s) and daughter(s) and husband alive[13]. In the case of two or more children, parents may claim maintenance from any one or more of them[14]. So, the Bombay High Court held that a mother could claim maintenance from any one or all of her sons even if her husband is alive[15]. Similarly, it applies to fathers. The Kerala High Court held that not only a son but even a daughter is liable to maintain her parents if they do not have essential means of livelihood, because the expressions like ‘any person’, ‘such person’, etc. used in this section if is not defined in this Code then as per section 2(y) defined in the Penal Code and thus, as per section 8, IPC, 1860, the pronoun ‘he’ and its derivatives are used for both males and females. Therefore the expression ‘his father or mother’ in this section shall also mean ‘her father and mother’. However, the Punjab and Haryana High Court was of a different view and held only sons liable.[16]

    Essential Conditions for granting maintenance

    On analysis of section 125, the following points come out-

    1. The person must have sufficient means from whom maintenance is claimed– The expression ‘sufficient means’ is not confined to just the visible means like employment, property, etc. It was held in Kandasamy Chetty, re[17]. A healthy and able-bodied man can be said to have sufficient means to support his wife, children, and parents. Even if a husband is insolvent or a beggar or a monk, but if he is able-bodied he must support his wife.[18]
    2. Neglect or refusal to maintain- The person must have neglected or refused to maintain the person entitled to claim maintenance. The court observed in Bhikaji v. Maneckji[19] that refusal or neglect could be by words or by conduct, express, or implied.
    3. The claimant must be unable to maintain himself/herself– The main object of this section is to prevent vagrancy, so it is not needed to compel a person to maintain another who has means to support himself/herself[20]. Thus, as per section 125(1)(a), maintenance to the wife can be granted only if she is unable to maintain herself. This was decided in Malan v. Baburao Jadhav[21]. But she is entitled to claim maintenance even if she is healthy and educated enough to earn but refuses to do so. However, the court in Abdulmunaf v. Salima[22], held this will disentitle her to get the full amount of maintenance.
    4. Special provision for minor married girls- A minor married girl can claim maintenance from her husband if she is unable to maintain herself. And if her husband does not have sufficient means then she can claim maintenance from her father but only till attaining her majority.
    5. When the maintenance is claimed by the wife from her husband, the following three conditions must be fulfilled-
      • She must not be living in adultery- If the wife is living in adultery, this will disentitle her to claim maintenance. Though, a single act of adultery would not disentitle her. In Mehbubabi v. Nasir Farid[23], it was held considering mere friendship as amounting to adultery would be wrong within the meaning of subsection (4).[24]

    In case of a challenge by husband against the maintenance claimed by the wife alleging her to be living in adultery, in S. S. Manickam v. Arputha Bhavani., the court held that the burden of proof is on the husband and the wife be allowed to rebut such allegations.[25]

      • She must not refuse, without just ground, to live with her husband- Proviso to subsection (3) provides that if a man has contracted a second marriage or keeps a mistress then this would be a just ground for the wife’s refusal to live with him.
      • She must not be living separately by mutual consent– The conditions in clauses (4) and (5) may apply to a wife whose marriage is still subsisting and do not apply to a divorced wife[26]. If a wife had relinquished her maintenance right in case it is a divorce by mutual consent then she cannot claim maintenance.[27]

    Conclusion

    Though there are provisions for maintenance in the personal laws and also, though, the matter is civil, this chapter has been introduced with the aim to provide a more speedy and economical remedy. In Bhagwan Dutt v. Kamla Devi[28], one of the main objectives that are, to prevent starvation and vagrancy leading to the commission of a crime, to ensure that the neglected wife, children, and parents are not left beggared and destitute on the scrap heap of society and thereby driven to a life of vagrancy, immorality, and crime for their subsistence, was observed. The provisions have been made in such a way that it works parallel to all the personal laws, thus, no conflict can arise between the provisions of the Code and the personal laws. The provision under section 125 is not punishing in nature instead treated as a means to ensure support to the dependants who are unable to maintain themselves. 

     

    References

    [1]  Nanak Chandra v. Chandra Kishore, (1969)3 SCC 802.

    [2]  The Code of Criminal Procedure, 1973,s. 125(1).

    [3]  Savitaben Bhatiya v. the State of Gujarat, (2005)3 SCC 636.

    [4]  Yamunabai Adhav v. Anantrao Adhav, (1988)1 SCC 530.

    [5]  Anupama Pradhan v. Sultan Pradhan,1991 Cri LJ 3216(Ori).

    [6]  Saudamini Devi v. Bhagirathi Raj, 1982 Cri LJ 539(Ori).

    [7]  Rameshchandra Daga v. Rameshwari Daga, Air 2005 SC 422.

    [8]  Zohara Khatoon v. Mohd. Ibrahim, (1981)2 SCC 509.

    [9]  Mohd. Ahmed Khan v. Shah Bano Begum, (1985)2 SCC 556.

    [10]  Ravindran Nair v. Sakunthala Amma, 1978 Cri LJ 1049(KER).

    [11]  Noor Saba Khatoon v. Mohd. Quasim, (1997)6 SCC 233.

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

    [13]  Kirtikant Vadodaria v. State of Gujarat, (1996)4 SCC 479.

    [14]  R. V. Kelkar, Criminal Procedure 843

    (Eastern Book Company, Lucknow,6th edn., 2019).

    [15]  Mahendrakumar v. Gulabbai, 2001 Cri LJ 2111(Bom).

    [16]  Raj Kumari v. Yashoda Devi, 1978 Cri LJ 600-01(P&H).

    [17]  Kandasamy Chetty, re, AIR 1926 Mad 346.

    [18]  Basanta Kumari v. Sarat Kumar, 1982 Cri LJ 485,486 (Ori).

    [19]  Bhikaji v. Maneckji,  (1907)5 Cri LJ 334,336 (Bom).

    [20]  R.V. Kelkar, Criminal Procedure 848(Eastern Book Company, Lucknow, 6th edn., 2019).

    [21]  Malan v. Baburao Jadhav, 1981 Cri LJ 184 (Kant).

    [22]  Abdulmunaf v. Salima, 1979 Cri LJ 172(Kant).

    [23]  Mehbubabi v. Nasir Farid, 1977 Cri LJ 391,393 (Bom).

    [24]  The Code of Criminal Procedure, 1973,s. 125(4).

    [25]  S.S Manickam v. Arputha Bhavani, 1980 Cr LJ 354,361(Mad).

    [26]  Mariyumma v. Mohd. Ibrahim, AIR 1978 Ker 231(FB).

    [27]  Shrawan Sakharam v. Sau Durga, 1989 Cri LJ 211(Bom).

    [28]  Bhagwan Dutt v. Kamla Devi, (1975)2 SCC 386.

    BY- Ku Richa Singh | Law College Dehradun, Uttaranchal University

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