Maintenance means giving necessary supplies to a person for survival. It includes shelter, food, and clothing, and every aspect of human life, which is essential for survival and existence.
Section 125 of the Criminal Procedure Code, 1973, provides maintenance for the wife, children, and parents.
Section 125 of CrPC is secular in nature. It does not apply to any particular religion or sect but to all individuals equally irrespective of their religion.
1. Why There is the Provision of Maintenance in CrPC?
2. Order For Maintenance
3. Interim Maintenance
4. Non-Compliance of Maintenance Orders
5. Procedure for Maintenance Under Section 125 CrPC
6. Alteration in Maintenance Allowance
Why There Is The Provision Of Maintenance In CrPC?
It is a well-known fact that provisions relating to maintenance are provided in personal laws as well. The Hindu Adoption and Maintenance Act, 1956, the Hindu Marriage Act, 1955, and others provide provision for maintenance. Then what was the need to add it in CrPC? This question always remains a doubt in the mind of students.
The purpose of law relating to maintenance is given under the Criminal Procedure Code, and not the Civil Procedure Code. This is to make the proceedings more strict. The object was to remove destitution (poverty).
Order For Maintenance
A Magistrate of first-class may pass an order for maintenance to a person to give a monthly allowance to his wife or child or parents.
The amount for the allowance is not fixed. It may be any sum. The Magistrate, after considering the family status and conditions, orders for maintenance to such person.
The order for maintenance is given when the person refuses or denies to maintain his dependants like wife, children, or parents.
The dependants who are liable to be maintained by a person are:
- Minor Child
- Major Child
Maintenance to Wife
1. Wife of a person who is not able to maintain herself.
2. The term wife also includes a divorced wife who has not re-married.
3. If the wife is earning and earns sufficiently, then she can not claim maintenance.
4. A wife shall not be entitled to maintenance from her husband if she lives in adultery or refuses to reside (live) with her husband, or if she is living separately with the mutual consent of both of them.
5. If a relationship is in the nature of marriage and essential characteristics of marriage are found out, then a woman in a live-in relationship can also claim maintenance.
6. If in case the wife surrenders her right of maintenance, the Magistrate shall cancel the order of maintenance from the date of surrender.
Sanju vs. the State of Bihar
The court, in this case, said that even a judicially separated wife is entitled to maintenance.
Kalyan Dey Chaudhary vs. Rita Day, 2017 SC
The Supreme Court, in this case, said that the quantum of maintenance is not pre-fixed but shall be decided as per the status of the parties. It shall always be decided upon the basis of facts and circumstances around. It can never be too excessive nor too restricted. The order for maintenance must always be justifiable for both parties.
Shailja vs. Khobbanna, 2018 SC
In this case, the court said that a wife capable of earning and a wife actually earning are two different things. They can’t be put under the same frame. The earnings of women must be voluntarily earning and not be out of force.
If the survival of a wife is on begging or doing material work, it does not mean that she is capable to maintain herself. The job of a wife must be such, which in turn can satisfy the needs of the wife for sustenance.
But the court also needs to do the scrutiny of such circumstances where the wife deliberately stops working or leaves work in order to seek maintenance from the husband. In such a case, maintenance shall not be allowed by the court to a wife.
Maintenance to Minor
1. A person is a minor when he is under eighteen years of age.
2. A person is liable to maintain his minor children, whether legitimate or illegitimate.
3. The concurrent responsibility of the father still persists when the husband of a minor girl is also minor and does not have sufficient means to maintain her.
Maintenance to Major Child
1. A person is liable to maintain his major daughter not being married.
2. After marriage, the husband is the guardian of a wife. But till marriage, the father is the guardian and caretaker of a major girl.
3. The father is liable for the maintenance of his major son only when he is mentally or physically abnormal or in such a condition when he is unable to maintain himself. For example, if he is paralyzed, then he is deemed to be unable to maintain himself.
Maintenance to Parents
It is the liability and duty of a person to maintain his father or mother if they are unable to maintain themselves. Maintenance and Welfare of Parents and Senior Citizens Act, 2007 emphasizes upon the maintenance of old age parents who because of any reason, are not capable of maintaining themselves.
A party claiming maintenance may also file an application for the interim maintenance during the pendency of proceedings. If the Magistrate thinks fit that the party must be allowed with interim maintenance, then it shall give order to the party for the monthly allowance for the interim maintenance.
The application for interim maintenance shall be disposed within 60 days from the date of service of notice of the application to such a person.
The interim maintenance shall be payable from the date of order or if the Magistrate orders, be payable from the date of application.
Non-Compliance Of Maintenance Orders
If the person to whom an order for maintenance is issued fails to give maintenance, then the court may issue a warrant against such person for the imprisonment of one month. The provision for punishing a person does not waive off the liability of a person to maintain. It is a method to compel and levy the amount of maintenance from such a person.
Procedure For Maintenance Under Section 125 CrPC
The procedure for maintenance may be taken against any person:
1. Where such a person resides. or
2. Where he or his wife resides. or
3. Where he last resided (lived) with his wife or with the mother of the illegitimate child.
If a person tries to avoid appearing in court, the Magistrate may hear the case ex-parte. The order of ex-parte may be set aside if the person shows good cause for not appearing in court. It can be set aside within three months from the date of the ex-parte order.
Alteration In Maintenance Allowance
If the circumstances of parties change, then the amount for maintenance can’t be the same. It needs to get altered. The change that has taken place shall be proved in court, and the Magistrate on such proof can alter the amount. The Magistrate may increase the amount or decrease the amount. It depends upon what changes took place in the circumstances of parties.
For example, earlier, the wife was receiving a monthly allowance of Rs.15,000, but now their child who lives with the wife needs to be admitted to a school for studies. In such a situation, the amount of maintenance needs to be altered.