This article is written by Ayni Saad of Faculty of Law, University of Delhi, an intern under Legal Vidhiya
ABSTRACT
The term “maintenance” describes the monetary assistance one party gives to a third party who is unable to care for themselves, such as a spouse, child, or parent. The amount of maintenance may differ depending on a variety of variables, including the income and financial status of the party paying the maintenance, the recipient’s needs, and the parties’ respective standards of life.
Generally speaking, maintenance is a contractual need that results from the connection between the parties. For instance, a divorced spouse could be legally obligated to support his ex-wife, just as a father would be compelled to support his minor children. The Hindu Adoption and Maintenance Act of 1956, the Hindu Marriage Act of 1955, the Muslim Women (Protection of Rights on Divorce) Act of 1986, and the Code of Criminal Procedure of 1973 are the key statutes that control maintenance laws in India.
In addition to these regulations, the Indian Criminal Code also has provisions that make failing to pay maintenance illegal in certain circumstances. For instance, failure to pay maintenance to a husband or minor children may result in criminal charges and punishments. Essentially, India’s maintenance rules are designed to make sure that those who are vulnerable receive the financial assistance they require to maintain a fair quality of living.
BACKGROUNG OF THE LAW OF MAINTENANCE IN INDIA
The Criminal Process Code of 1898, a colonial-era legislation, is where the Code of Criminal Procedure (CRPC) provision for maintenance originated. This rule allowed for the payment of maintenance to specific groups of persons, such as spouses and kids who couldn’t support themselves.
The maintenance clause was kept when the CRPC was updated in 1955 after independence. Several adjustments were made as a result of the revision, such adding parents to the list of those who may make a maintenance claim.
As the CRPC underwent a thorough revision in 1973, the present maintenance provision under Section 125 was implemented. The clause was widened to embrace a larger variety of people, including wives, parents, and kids (both biological and adopted). The goal of this modification was to provide a more thorough and functional legal framework for the defence and assistance of helpless and vulnerable individuals.
The Supreme Court of India has rendered a number of significant rulings throughout the years that have broadened the application of the maintenance provision under Section 125 of the CRPC. For instance, the court has decided that a divorced wife who is unable to support herself is qualified to ask her ex-husband for maintenance. A father is required to support his illegitimate children, the court has declared.
Today, the maintenance clause in Section 125 of the CRPC remains a crucial legal tool for the support and protection of vulnerable people in India, and a variety of individuals continue to utilise it to request financial assistance from those who are required by law to do so.
INTRODUCTION TO THE LAW OF MAINTENANCE UNDER CRPC,1973
A person may assert a claim for maintenance under Section 125 of the Code of Criminal Procedure (CRPC) 1973.[1] Some types of people who are unable to support themselves may receive maintenance payments under this clause.
According to Section 125 of the CRPC, anybody who has enough money to support their wife, children (including underage or unmarried daughters), and parents but neglects or refuses to do so may be required to pay a monthly allowance for their maintenance by a magistrate. The magistrate will base the amount of the allowance to be paid on the necessities of the party requesting maintenance and the ability of the party being ordered to pay.
Regardless of their faith, a person may request maintenance under Section 125 of the CRPC. The one requesting maintenance does not have to be divorced or legally separated from the one who is compelled to pay. An illegitimate kid or a significant child who is unable of supporting oneself owing to a physical or mental condition can also make a maintenance claim.
In order to request maintenance under Section 125 of the CRPC, an application must be made to the proper magistrate. After that, the magistrate will serve a notice on the individual who must pay maintenance and hold a hearing to ascertain the amount that must be paid.
In general, Section 125 of the CRPC is a crucial provision for the defence and assistance of weak people who are unable to sustain themselves.
SCOPE AND OBJECTIVE
The purpose of maintenance legislation under the Code of Criminal Procedure (CRPC) is to guarantee that specific groups of persons who are unable to sustain themselves financially are supported as well as to establish an efficient legal framework for the enforcement of this assistance.
Some of the specific objectives of maintenance law under the CRPC include:
- To make sure that those who are vulnerable, such as wives, kids, and parents who are unable to support themselves, are protected and supported.
- To establish a legislative framework for the enforcement of the right to maintenance by enabling those who are eligible to do so to do so through the criminal justice system.
- To make sure that the amount of maintenance paid is acceptable and based on both the requirements of the party who is entitled to maintenance and the financial ability of the party who is compelled to pay.
- To make sure that maintenance is paid on time and on a regular basis so that the person who is entitled to it may continue to live within a fair standard of living.
- To deter neglect or failure to maintain by making it a crime that is sanctioned by the law.
Ultimately, the CRPC’s maintenance legislation aims to advance social fairness and safeguard the rights of weaker individuals who are unable to support themselves.
PROVISIONS REGARDING THE GRANT OF MAINTENANCE UNDER CRPC,1973
SECTION 125:
The support of spouses, children, and parents is addressed under Section 125 of the Code of Criminal Procedure (CrPC), which was enacted in 1973.[2] It stipulates that a person has a duty to support his wife, children (whether biological or adopted), and parents who are unable to support themselves.
A wife who is unable to support herself may request maintenance from her husband under Section 125 of the Criminal Procedure Code. Similar to adults, children who are unable to support themselves can ask their parents for maintenance. Parents who are unable to support themselves and have no other sources of income are likewise covered by this clause.
The amount of maintenance that may be sought under Section 125 CrPC is not predetermined; rather, the court will make this decision based on the parties’ quality of living, the maintainer’s income, and the claimant’s financial need.
The Section 125 CrPC establishes a quick process for requesting maintenance. A Magistrate who has the authority to order the person in charge of maintenance to pay the claimant a monthly sum as maintenance may hear the claimant’s application. Moreover, the Magistrate has the authority to require the person in charge of maintenance to pay arrears.
The Section 125 CrPC provision is a social welfare law designed to help the weaker members of society who are unable to sustain themselves. It is an effective instrument for making sure that parents, kids, and women don’t go without the needs of life.
PERSONS ENTITLED TO CLAIM MAINTENANCE UNDER SECTION 125:
WIFE: According to Section 125 (1) of the CRPC, 1973, a lawfully married woman who is unable to support herself and has insufficient means of subsistence is eligible to receive maintenance from her husband.[3] The husband and wife should be lawfully married, and just because the parties have cohabited to the best of the public’s knowledge does not grant the wife’s status under the Code. Also, in order to demonstrate the status of the lawfully wedded woman, the legality of the marriage should solely be based on the requirements of personal law.
Also, a divorced woman who has been divorced by her husband or has obtained a divorce from him and has not yet remarried is likewise eligible to make a maintenance claim under the Code. As a result, women who have divorced or after the new rule went into effect have the right to maintenance.
LEGITIMATE OR ILLEGITIMATE CHILD:
A legitimate or illegitimate kid, male or female, who is unable to support themselves, is considered a “child” under Section 125 of the Code and is therefore entitled to support from their father.[4] Whether or not the child is married is irrelevant if it is a “minor.” As a result, the definition of “minor” under this legislation is the one from The Indian Majority Act of 1875. The father of a female child will be required to support the female child until she reaches the age of majority if the husband of the female child is unable to provide for the maintenance of the female child. However, a minor married girl is entitled to claim maintenance from her legally married husband.
LEGTIMATE OR ILLEGITIMATE ABNORMAL CHILD:
According to this provision, an “abnormal child,” whether legitimate or illegitimate, is a child who has not reached adulthood due to any physical or mental abnormality or damage and is consequently unable to support itself.[5] Nevertheless, a married daughter who has not reached the age of majority is not eligible to request maintenance under this clause, and her husband is the only one who must pay for her upkeep.
FATHER OR MOTHER:
According to Section 3 (20) of The General Clauses Act, 1897, the terms “father” and “mother” under Section 125 include the phrase “adoptive father,” but adoptive mother is not included since it is not similarly defined under the General Clauses Act, 1897.[6] The court has, however, ruled that the term “mother” also covers “adoptive mother.” In addition to being required by Indian Law, this provision provides for the maintenance of the mother and father who are unable to support themselves. As a result, both the son and the daughter are required to support their parents.[7] Also, the court has ruled in a number of legal precedents that the daughter is equally liable for the support of her parents, whether they are married or not. But, the court must be convinced that the daughter has the resources to support herself.
CONDITONS FOR GRANTING MAINTENANCE UNDER SECTION 125
There are a few necessary requirements that must be met in order for the parties to request maintenance, and they are as follows:
- Neglect or unwillingness to maintain: The person requesting maintenance must demonstrate that the party who is required to maintain them has ignored or refused to do so.
- Relationship: The individual requesting maintenance must be the husband’s wife, the father or mother of the husband’s or wife’s minor child, or both.
- Inability to maintain: The individual requesting maintenance must demonstrate that he or she lacks an independent source of income and is unable to support themselves.
- Adequate means: The person in charge of paying maintenance must have enough money on hand to cover the claimant’s upkeep.
- Special provisions for a minor married woman’s maintenance: A minor married woman who is unable to support herself may initially seek maintenance from her husband, but if he lacks the resources to do so, the law stipulates that the father, if he is financially able to do so, is responsible for maintaining the minor married woman. This is stated in S. [125(1)(a)].
- When the woman seeks maintenance: She must not be an adulteress, refuse to remain with her husband without justification, or be living separately with her husband’s approval.[8]
- Reasonable maintenance: The Magistrate must assess a fair amount of maintenance based on a number of variables, including the parties’ way of living, the primary supporter’s income, and the claimant’s financial need.
If these requirements are satisfied, the Magistrate may order the person supplying support to pay a monthly allowance for the claimant’s maintenance. Based on alterations in the parties’ circumstances, the amount of maintenance may occasionally be altered. The purpose of Section 125 of the CrPC is to protect the rights of weaker groups in society who are unable to care for themselves. It is a social welfare law.
JURISDICTIONS OF THE MAGSITRATES TO DEAL WITH MAINTENANCE PROCEEDINGS
The following describes the Magistrate’s authority to handle maintenance cases under Section 125 of the Code of Criminal Procedure (CrPC), 1973:
- Residence: The Magistrate with jurisdiction over the location of the claimant’s or respondent’s residence, place of business, or place of employment has the authority to hear and consider the maintenance application.
- Marriage location: The Magistrate with jurisdiction over the location of the marriage ceremony has the authority to hear the maintenance application and provide a decision.
- Location of custody: If the applicant is a juvenile, the Magistrate who has jurisdiction over the applicant’s residence or place of custody has the authority to hear the maintenance application and provide a decision.
The respondent may object on the grounds of lack of jurisdiction to the Magistrate’s authority to hear and consider the maintenance application. The application may be rejected or forwarded to the proper magistrate who has authority to hear the matter if the magistrate determines that he or she lacks jurisdiction to hear the case.
PROCEDURE FOR CARRYING OUT PROCEEDINGS UNDER SECTION 125 CRPC, 1973
SECTION 126: Section 126 of the Code of Criminal Procedure (CRPC) addresses how evidence is collected and recorded during hearings before a magistrate. The sub-sections (2) and (3) of Section 126 outline the steps the magistrate must take while conducting proceedings under Section 125.[9]
This clause states that each witness’ testimony must be recorded in writing in the court language by the magistrate himself or by the magistrate dictating in open court when the magistrate is conducting an investigation or trial. The witness and the magistrate must both sign the evidence before it may be included in the case file.
The clause further states that the magistrate may record a summary of the key points of the witness’ testimony in the court’s official language if the magistrate is unable to create a written notation of the testimony delivered by a witness. The magistrate must sign the summary as well.
Section 126’s goal is to make sure that witness testimony in criminal cases is correctly documented so that it may be used as evidence at a later stage if required. It is a crucial protection to guarantee a fair trial and avoid any potential injustices.
ALTERATION IN ALLOWANCE
SECTION 127: According to Section 127, the Magistrate may modify monthly allowances or interim maintenance as he sees fit, depending on the particulars of each case or other factors.[10] A request for an increase or decrease in the allowance can be made by either party depending on their changing circumstances and living arrangements.
Changes in the parties’ circumstances justify adjustments to the financial or other conditions of the party receiving and paying allowances or interim maintenance, which would permit an increase or decrease in the initially specified amount of maintenance.
ENFORCEMENT OF ORDER OF MAINTENANCE
SECTION 128: Such maintenance order may be executed by any Magistrate at any location where the person against it is made, in accordance with section 128 of the CRPC, 1973.[11] If the person against whom the order of maintenance under section 125(1) is imposed does not abide by its terms, the Magistrate has the authority to levy charges and issue a warrant levying the amount due in the manner of levying penalties, according to the order of enforcement made by the Magistrate.[12]
Moreover, the Magistrate had the authority to detain the offender for a duration that might last up to one month or until the debt was paid. According to the Supreme Court, fulfilling the obligation by incarceration rather than other means is how this clause is to be implemented.[13]
LAW COMMISION REPORTS ON THE LAW OF MAINTENANCE UNDER CRPC,1973: IMPORTANCE
- The Law Commission of India has published a number of studies on maintenance under the Code of Criminal Procedure (CRPC), which have resulted in substantial amendments to Indian legislation governing maintenance. Here are some of the most important reports:
- The “Family Maintenance Bill” was proposed for adoption in the 71st Law Commission Report (1977), which also recommended that the legislation governing maintenance be codified.[14]
- The 125th Law Commission Report (1988) recommended several amendments to the CRPC to make it more effective in enforcing orders of maintenance. The report suggested that the imprisonment of a person for failure to pay maintenance should be a last resort, and recommended alternative methods of enforcement, such as attachment of property and deduction from salary or wages.[15]
- According to the 217th Law Commission Report (2008), a woman who has been in a relationship that has the characteristics of marriage with a male should be included in the term of “wife” under the CRPC. This was done to make sure that women in these partnerships would have legal access to maintenance as well.[16]
Overall, the Law Commission findings have played a significant role in influencing Indian legislation regarding maintenance under the CRPC. The suggestions presented in these studies have resulted in substantial legal reforms that have made it possible for individuals who are entitled to maintenance to get it efficiently and on schedule.
CONFLICT BETWEEN MAINTENANCE UNDER PERSONAL LAW AND CRPC,1973:
MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT, 1968
An Indian law known as the Muslim Women (Protection of Rights on Divorce) Act of 1968 was passed to safeguard the rights of Muslim women who had experienced a divorce from their husbands. An Indian law from 1986 is called the Muslim Women (Protection of Rights on Divorce) Act.[17]
The Supreme Court’s ruling in the Mohd Ahmed Khan v. Shah Bano Begum case, which determined that divorced Muslim women are entitled to support beyond the iddat period under Section 125 of the Code of Criminal Procedure, prompted the passage of the Act (CRPC).
The following are some of the Act’s main clauses:
- The Act mandates that divorced Muslim women get “reasonable and equitable” maintenance payments from their ex-husbands during the iddat period (three months after divorce). The money is meant to take care of the woman’s necessities at this time.
- The Act also enables divorced Muslim women to get a lump-sum maintenance payment from their ex-husbands in order to cover their future requirements.
- According to the Act, the amount of maintenance that should be paid to the woman depends on her requirements as well as those of her children, her own income, and her husband’s financial resources.
- The Act stipulates that the wife has the right to ask the criminal courts to execute the support order, and that the husband may be imprisoned for disobeying the order.
The Act’s detractors claim that it is regressive in character and does not offer divorced Muslim women enough support. The Act has been utilised in numerous instances to guarantee that women are able to get the maintenance to which they are entitled, and it has been viewed as an important step towards preserving the rights of Muslim women in India.
APPLICABLE CASE LAWS
In a significant court case, Mohd Ahmed Khan v. Shah Bano Begum, Muslim women who had just divorced were the subjects. A Muslim lady named Shah Bano Begum wed Mohd Ahmed Khan in 1932. Mohd Ahmed Khan got a divorce from her in 1978 and ceased providing for her needs. Shah Bano Begum petitioned the court for support from her ex-husband in accordance with Section 125 of the Code of Criminal Procedure (CRPC). The High Court later supported the magistrate’s decision to give her maintenance.[18]
The Muslim Women (Protection of Rights on Divorce) Act, passed in 1986, which granted Muslim women the right to maintenance beyond the iddat period, was a result of the case, which ignited a national discussion about the rights of Muslim women. The Act was revised in 2001 to allow for more significant support after it was criticised for being regressive since it did not provide for enough maintenance for divorced women.
Nonetheless, thanks to a provision in the current Act, Muslim spouses may choose to be regulated by Sections 125 to 128 of the Code.
A significant case in Indian law on the topic of maintenance for divorced Muslim womenwas Danial Latifi v. Union of India.[19] According to Section 125 of the CRPC, the Supreme Court determined that Muslim women have a right to maintenance after the iddat period. The Court ruled that the CRPC’s provisions applied to all citizens, regardless of their faith, and that the Muslim Personal Law lacked the authority to supersede the CRPC’s rules.
The Court further determined that the Muslim Personal Law did not qualify as a “law” under Article 13 of the Constitution and, as a result, lacked the authority to supersede the CRPC’s rules.[20]
The Court advised the government to take action to guarantee gender justice by amending the personal laws of all religions.
The case was notable because it upheld Muslim women’s entitlement to support after the iddat period and highlighted the significance of gender justice in personal legislation.
A significant case in Indian law, Khatoon Nisa v. State of U.P. addressed the topic of Muslim women’s maintenance.[21]
The Court determined that the Muslim Personal Law lacked the authority to supersede the CRPC’s requirements and that the husband was obligated to support his wife in accordance with those provisions.
The Court further noted that the Muslim Personal Law required revision to bring it into compliance with the Constitution’s fundamental values of gender equity.
In the case of Rameshchandra Pratapji Daga v. Rameshwari Rameshchandra Daga A wife who was living separately from her husband was the subject of maintenance in the landmark Rameshchandra Daga case in Indian family law.[22]
The Supreme Court ruled that under Section 125 of the CRPC, a woman who was living apart from her husband for reasonable reasons was entitled to maintenance payments from him. The woman did not have to demonstrate that she was unable to support herself, according to the court, as long as she could demonstrate that she was apart from her spouse for a legitimate cause.
The Court further ruled that a divorced woman who had not remarried and a wife who was living apart from her husband for legitimate reasons were both included in the definition of “wife” under Section 125 of the CRPC.
The Court additionally stated that the purpose of Section 125 of the CRPC was to prevent a wife from becoming destitute and vagrancy and that the provision should be liberally read to accomplish this goal.
The case was notable because it highlighted the significance of avoiding a woman’s poverty and vagrancy and broadened the application of Section 125 of the CRPC to cover a wife who was living away from her husband for reasonable reasons.
According to section 125(1)(d) of the CRPC, 1973, the court determined in Vijaya Manohar Arbat v. Kashirao Rajaram Sawai that the mother and father have a right to support payments from their married or unmarried daughter.[23] However, it was held that the court must be satisfied that the daughter either married or unmarried must have sufficient means to maintain her parents.
CONCLUSION
The notion of the Law of Maintenance in India has always been quite broad since it deals with so many different issues. The purpose of section 125 of the Code of Criminal Procedure, 1973 is to provide for the maintenance of parties who find themselves unable to provide for themselves and in harsh positions than others and, as a result, do not have the means and resources to survive, according to the aforementioned facts and judicial precedents. This clause exists to provide the courts the discretion to apply applicable sections and changes in a case-by-case basis and with a degree of latitude and flexibility.
REFERENCES
S. 125, 126, 127 & 128, The Code of Criminal Procedure, 1973
The General Clauses Act, 1897.
The Indian Majority Act, 1875.
The Muslim Women ( Protection of Rights on Divorce) Act, 1986.
R.V. Kelkar, Criminal Procedure, 827 (7th ed, 2022).
71st Law Commission of India Report, The Hindu Marriage Act, 1955- Irretrievable breakdown of marriage as a ground of divorce, 40 (1978), available at https://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbdf/uploads/2022/08/2022080518.pdf
125th Law Commission of India Report, The Supreme Court- A Fresh Look, 19 (1988), available at https://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbdf/uploads/2022/08/2022080855-2.pdf
217th Law Commission of India Report, Irretrievable Breakdown of Marriage – Another Ground for Divorce, 23 (2009), available at https://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbdf/uploads/2022/08/2022081084-2.pdf
[1] S. 125, The Code of Criminal Procedure, 1973.
[2] S. 125(1), The Code of Criminal Procedure, 1973.
[3] S. 125(1)(a), The Code of Criminal Procedure, 1973.
[4] S. 125(1)(b), The Code of Criminal Procedure, 1973.
[5] S. 125(1)(c), The Code of Criminal Procedure, 1973.
[6] S. 3(20), The General Clauses Act, 1897.
[7] S. 125(1)(d), The Code of Criminal Procedure, 1973.
[8] S. 125(4)&(5), The Code of Criminal Procedure, 1973.
[9] S. 126(2)&(3), The Code of Criminal Procedure, 1973.
[10] S. 127(1), The Code of Criminal Procedure, 1973.
[11] S. 128, The Code of Criminal Procedure, 1973.
[12] S. 125(3), The Code of Criminal Procedure, 1973.
[13] Kuldip Kaur v. Surinder Singh, (1989) 1 SCC 405.
[14] 71st Law Commission of India Report, The Hindu Marriage Act, 1955- Irretrievable breakdown of marriage as a ground of divorce, 40 (1978), available at https://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbdf/uploads/2022/08/2022080518.pdf
[15] 125th Law Commission of India Report, The Supreme Court- A Fresh Look, 19 (1988), available at https://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbdf/uploads/2022/08/2022080855-2.pdf
[16] 217th Law Commission of India Report, Irretrievable Breakdown of Marriage – Another Ground for Divorce, 23 (2009), available at https://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbdf/uploads/2022/08/2022081084-2.pdf
[17] The Muslim Women ( Protection of Rights on Divorce) Act, 1986.
[18] Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556.
[19] Danial Latifi v. Union of India, (2001) 7 SCC 740.
[20] Article 13, The Constitution of India.
[21] Khatoon Nisa v. State of UP, (2014) 12 SCC 646.
[22] Rameshchandra Pratapji Daga v. Rameshwari Rameshchandra Daga, (2005) 2 SCC 33.
[23] Vijaya Manohar Arbat v. Kashirao Rajaram Sawai, (1987) 2 SCC 274.
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