Maintenance under Cr.P.C. - Lexera Publication

Written by- Afwan Sayyed

ABSTRACT

This article delves into the provisions of maintenance for spouses, children, and parents under the Code of Criminal Procedure, 1973 (CrPC). It explores the essence of Section 125 within the CrPC, which addresses the responsibility of financially supporting individuals who are unable to provide for themselves. The article explains that when marriages dissolve, issues of maintenance often emerge, necessitating legal intervention. Section 125 empowers a Magistrate to order monthly allowances for spouses, children (both minor and major with special needs), and parents who cannot support themselves. The article clarifies the circumstances under which such orders can be issued, including the execution of interim allowances. It highlights the implications of non-compliance, including potential imprisonment.

The piece emphasizes the importance of timely application and the role of the court in assessing reasons for refusals or offers related to maintenance. Additionally, it outlines situations in which maintenance claims can be denied based on specific conditions. The article concludes by touching on the broader constitutional objective of safeguarding the interests of vulnerable individuals through these provisions and providing a legal framework to ensure their dignified sustenance.

Introduction

A marriage is a social institution, primarily bound by 2 individuals who decide to cohabit and live their lives together. By doing so, they enter into a legal agreement to take up the responsibilities of their individual roles.

Unfortunately, sometimes these social institutions tend to break apart from each other resulting in never ending disputes and litigations. One of the substantive question that arises after the dissolution of such social institutions is of the maintenance that the spouses will want to acquire form their ex-partners in order to maintain themselves.

This article deals with the various provisions specifically available for maintenance for the wives, children and parents under The Code of Criminal Procedure, 1973.

Section 125 of CrPC

Section 125 states that

➢ If any person having sufficient means neglects or refuses to maintain-

a. His wife who is unable to maintain herself.

b. His legitimate/illegitimate minor child regardless of whether they are married or not and are unable to maintain themselves.

c. His legitimate/illegitimate major child (excluding married daughter) who has any sort of physical or mental abnormality or injury and due to these reasons are unable to maintain themselves.

d. His father/mother who are unable to maintain themselves.

If the above instances exists, then-

➢ A Magistrate of the first class upon confirming the neglect of such above mentioned persons order the person to pay monthly allowance for the maintenance of his wife, minor child, major child with special needs, father or mother, at such monthly rate as the Magistrate thinks fit

➢ The Magistrate may also if he thinks fir order such father to pay the maintenance of the female minor child until she attains majority, or if the husband of such minor female child has insufficient means to maintain her. (the female minor child mentioned under clause ‘b’ of this section)

➢ The Magistrate may also order such a person to pay some interim allowances to the abovementioned individuals during the pendency of the trial, i.e. when the trial is actively being contested in a court of law and also the cost of the proceedings that have taken place, so as to ensure that no arbitrary burden is placed on these individuals.

➢ The execution of any order provided for the interim allowance or the cost of the proceeding of the cost are to be done within 60 days from the date of the service of the notice of application to such an individual.

• Moreover if the husband fails to comply with the order of the Court without any reasonable excuse, the Magistrate may if he seems fit issue a warrant for collecting the amount due and may sentence him for imprisonment for a term which may extend to a period on one month or until the payments are made at the earliest.

• It is imperative that the abovementioned individual should note with the utmost priority that the Court will not entertain to issue any warrant if the application for collecting the allowance is made after 1 year of the actual date on which the amount became due.

➢ The husband may propose the offer to the wife that he would support her financially contingent on the fact she lives with him.

However, the wife may refuse on reasonable ground to comply with the offer, which the Magistrate may look into and further decide on it if he seems fit.

The parable this section provides to explain this proviso is that supposedly the husband is keeping a mistress in the same house; will be held as a valid reason onbehalf of the wife to deny such mutual offer.

➢ The wife will lose her rights to receive maintenance if the-

i. Is leading a life with adultery.

ii. Is refusing to live with the husband without any reasonable grounds.

iii. Is living separately with mutual consent.

The Magistrate may cancel the Order for allowance if any of these abovementioned instances are found on record on behalf of the wife.

The term ‘wife’ under this context is to be understood as to a woman has been divorced, has obtained divorce until she has remarried.

The term ‘minor’ under this context is to be interpreted as per the provisions provided by the Indian Majority Act, 1857.

Object if this provision:-

This provision is backed by the Article 15(3) and Article 39 of the Indian Constitution. Article 15(3) provides that-

“Nothing in in this Article shall prevent the State from making any provision for women and children.”

Whereas article 39 talks about certain principles that the state must follow for the interest ofthe weaker individuals like women and children.

The application of this provision is to prevent these weaker individuals live without security and to make sure that the man is not leaving them as a burden on the society to live on someone’s remnants.

Thus the object of the provision is prima facie to prevent the wife, children and parents from starvation and to ensure that they live their lives with dignity.

One can thus say that this provision under The Code of Criminal Procedure is primarily preventive and not remedial in nature.

Application of this provision:-

The application of this provision is prima facie to help the needy individuals’ i.e.

i. Wife, until she remarries.

ii. Minor children (legitimate/illegitimate), the case of minor female child arising only if the husband of such minor female child is unable to maintain her.

iii. Major child (legitimate/illegitimate) who are unable to maintain themselves d

iv. Parents who are unable to maintain themselves

So that they are not left to live on someone’s remnants.

Section 125 of The Code of Criminal Procedure, 1973 is more of a summary procedure, i.e. the order of this court under this provision is not final and hence the concerning parties can always contest the matter in a Civil Courts which will have appropriate authority.

Since the substantial dispute concerning this provision lies under the ambit of civil issues, the remedy can only be sought through the Civil Court and hence the decree of the Civil Court will be final.

Even though the substantial dispute is of civil nature, the proceedings are of criminal nature i.e. quasi-civil and quasi-criminal. Hence this provision is said to be only a ‘Summary Procedure’.

Effects of application for maintenance under S.125 of CrPC before/after divorce:-

In a case where the wife lives separately without divorce and claims for maintenance from her husband under S. 125, the husband may then ask her to provide reasons for her separation.

Furthermore, if the wife fails to provide reasons for her separation the husband may then apply for Restitution of Conjugal Rights.

However, if the wife after this incidence, obtains a divorce from her husband and then again applies for a fresh petition for maintenance under S. 125, her previous application will be no bar to this new application.

Interim Maintenance:-

There is no stipulated provision as such for the allowance of interim maintenance, however the Courts have the implied authority to order a decree for interim maintenance.

The courts will have the authority to grant interim relief if and only if a written application is presented.

Burden of paying Maintenance:-

In order to make the husband pay the allowances, it is essential that he is having the necessary sources for providing for them. Necessary sources does not only include properties or a job but also includes his well health and him being able bodied so much that he can earn.

Hence a husband is not exempted from his liability on the grounds that he has no sources of income to provide for these individuals, if he has a good health and is capable of doing a job i.e. able bodied.

A husband who has tried providing for his family and had not neglected in providing for them in an exceptional case.

However, mere absence of job or property will be of no avail to him unless he establishes that he has tried his level best or is incapable or is a patient of a disease which is preventing him from earning or incapacitates him from doing a job.

The husband therefore having sufficient means is not to be interpreted only as visible means; he being healthy and able bodied is enough to establish that he has enough sources to provide for his family.

Imprisonment:-

Sub clause 3 to this section provides the court with 2 independent powers, namely:-

i. To issue a warrant.

ii. To sentence the person.

Sub clause 3 of this section hence implies that failure to pay the monthly allowances to the family members, gives the court the authority to imprison the person for a term not exceeding 1 month for failing to pay some or whole amount of each month’s allowances and a term of 2 months for failing to pay the allowances of 4 months.

Section 126- Procedure for S.125

1. Proceedings under S125 may be taken against any person in any district-

i. Where he is

ii. Where he or his wife resides

iii. Where he is last resided with his wife, or as the case may be, with the mother of the illegitimate child.

2. All such evidences that are to be presented in the court are to be made in presence of the person against whom the maintenance is ordered to be made, or, if he is not present, in presence of his pleader.

The magistrate if he thinks that the person is deliberately delaying the hearings, he may proceed with the case ex-parte and all such orders/judgements passed will be binding and enforceable.

3. The court while deciding the case may also decide as to who may pay the costs of the proceedings in order to make it a fair trial.

Competent jurisdiction:-

The only court having the competent jurisdiction to decide on the matter of S.125 underCr.P.C is the district in which any these circumstances are present, namely:-

i. The husband is

ii. The husband resides

iii. The wife resides

iv. The husband last resided with his wife

v. The husband last resided with the mother of the legitimate child

The magistrate of such a district will having a competent jurisdiction to decide upon a case in which such a person is having his job in such territory, even though he may not be permanently be residing there.

The terms ‘resides’ is to be interpreted as some sort of residence, thus when a person has a permanent residence and is casually staying somewhere else will not imply his residence there. However for persons not having a permanent house, who are actively moving from one place to another will be deemed to have permanent residence at the place they are currently living for the time being.

Jurisdiction- at the instance of wife.

The wife can apply for an application for maintenance under S.125 under Cr.P.C, to the Magistrate in the district where she is actively residing and subsequently the court will have the competent jurisdiction to try the matter by virtue of the wife’s residence in that territory.

In a case of 1999 where the Magistrate dismissed the wife’s application for maintenance under S.125 of Cr.P.C. the Supreme Court overruled the decision and held that the lower court seemed to have not taken a note of the statutory provisions.

It must be noted that where there arises a dispute between the Civil and the Criminal courts, the order passed by the former, i.e. the Civil Courts will have the upper hand although generally, orders passed by Civil Courts are irrelevant in a criminal proceeding.

What if the husband is insolvent?

Insolvency on behalf of the husband is of no use to prevent paying the maintenance ordered under S. 125 of the Cr.P.C.

A court decree having declared the husband insolvent will not force the Magistrate from cancelling the order of imprisonment.

Hence the husband is not relieved of his liability of maintenance under section 125 of the Cr.P.C.

Section 127- Alteration in allowances

1. If proof is gathered to contest that there has been a change of circumstances on behalfof the persons receiving the maintenance or interim maintenance under section 125 of the Cr.P.C. the Magistrate if he thinks fit may make such alterations in the allowances of the maintenance or interim maintenance as the case may be.

2. If it appears to the Magistrate that the order passed in consequence of the Civil Court to cancel or vary the order passed under Section 125 of the Cr.P.C. should be cancelled or varied, he may cancel or vary the decree passed as the case may be.

3. If it appears to the Magistrate that the wife who had been divorce by or obtained divorce from her husband has, then the Magistrate may-

i. After the date of such divorce, remarried, cancel such order as from the date of her remarriages.

ii. The woman who had been divorced, before or after the date of the said order had received whole of the sum which was liable under any customary/personal laws on such divorce, cancel such order–

a. In case where the amount was paid prior to such order, from which such order was made.

b. In case where from the date of expiry of the period for which maintenance has been actually paid by the husband to the woman.

iii. That the woman had obtained a divorce from her husband and that she had voluntarily surrendered her rights for maintenance or interim maintenance as the case may be.

4. The Court will also keep in mind the monthly allowances for maintenance paid to the person while deciding about getting back the money.

Change in the Circumstances

The change in the circumstances refers to the change in the status of the litigant parties who are paying or receiving the sum amount of allowance which will result in increasing or decreasing of the payment of monthly fixed allowances.

For instance, the death of a child or the child being grown as an adult are examples of what a change in circumstance would be.

Remarriage:-

If it comes to notice of the Magistrate that the wife has remarried after the date of the divorce, the Magistrate may cancel the order passed for maintenance as the liability to maintain her was only up until she remarries as per clause 3(a) of this Section.

Summary:

This article elucidates the provisions of maintenance for various parties as outlined in Section 125 of the Code of Criminal Procedure, 1973. The discussion navigates through the practical applications of this section, which pertains to the financial support of spouses, minor and major children with special needs, and parents who cannot maintain themselves. Under Section 125, a Magistrate can order monthly allowances for these individuals when a person with sufficient means fails to fulfil their responsibilities. The article explains the process of applying for maintenance, the role of the court in assessing circumstances, and the implications of non-compliance. Furthermore, it underscores the constitutional intent to protect the interests of vulnerable individuals and ensure their dignified livelihood through these legal provisions.

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