Right To Maintenance Under Criminal Law: Provisions, Principles, And Cases

Right To Maintenance Under Criminal Law: Provisions, Principles, And Cases

Author: Vinishalakshmi, SMT. K.G. Shah Law School Affiliated to SNDT University

INTRODUCTION

Maintenance means giving necessary supplies to a person for survival. It includes Shelter, food, clothing and every aspect of human life. It is an Economic Umbrella to the Weaker having no sufficient means to maintain themselves.

Section 3(b) of the Hindu Adoption and Maintenance Act 1956 defines the term ‘Maintenance as it includes(i) In all cases provisions for food, clothing, residence, education and medical attendance and treatment and (ii) In case, of an Unmarried daughter it includes reasonable expenses of her marriage). It is the duty of every [person to maintain his wife, children and parents who are unable to live on their own.

Chapter IX containing sections 125 to 128 of the Code of Criminal Procedure 1973 lays downs the provisions relating to the maintenance of dependent wife, children and parents.

Keywords: Section 125 of Crpc, Chapter IX, Section 3(b) of Hindu Adoptions and Maintenance Act, Alimony, Maintenance.

MEANING, DEFINITION & EXPLANATION

  • Meaning: In Simple WordsMaintenance means giving necessary supplies to a person for survival. It includes shelter, food, clothing and every aspect of human life.It is an economic Umbrella to the weaker having no sufficient means to maintain themselves.
  • Definition: Section 125 of the Code of Criminal Procedure 1973 empowers the magistrate of First class to Order

1.  If any person having sufficient means neglects or refuses to maintain:

  1. His legally wedded wife, unable to maintain herself.
    1. His minor son, legitimate or illegitimate.
      1. His unmarried daughter,legitimate or illegitimateof any age (whether a minor or major).
      1. His son or daughter, legitimate or illegitimateof any age who is physically or mentally disabled.
      1. His parents (both father and mother) who are unable to maintain himself or herself, upon proof of such neglect or refusal,

order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate as magistrate thinks fit, and no pay the same to such person as the Magistrate may from time to time direct:

Provided that the Magistrate may order the father of a minor female child referred to in Clause (b) to make such allowance, until she attains her majority, if the magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.

Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and expenses of such proceedings which the which the magistrate considers reasonable, and to pay the same to such persons as the magistrate may from time to time direct:

Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceedings under the Second Proviso shall, as far as possible, be disposed of within Sixty days (60 days) from the date of service of the notice of application to such person. (Inserted by Amendment Act 2001(50 of 2001) S.2 (w.e.f. 24-09-2001).

  • Explanation– For the purpose of this Chapter-
  • “minor” means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is deemed not to have attained his majority.
  • “Wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
  • Any such allowance for the maintenance or interim maintenance and expenses for proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.
  • If any person so ordered fails without sufficient cause to comply with the order, any such magistrate may, for every breach order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month’s ( allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,) remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until the payment if sooner made:

Provided that no warrant shall be issued for the recovery of any amount due to under this section unless application be made to the court to levy such amount within aa period of one year from the date on which it became due:

Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.

Explanation: If a husband has contracted married with another woman or keeps a mistress, is shall be considered to be just ground for his wife’s refusal to live with him.

  • No wife shall be entitled to receive an (allowance for the maintenance or the interim maintenance and expenses of proceedings, as the case may be), from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.
  • On Proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living Separately by mutual consent, the Magistrate shall cancel the order.

This section provides speedy relief and protects the deserted/ neglected wife, children or parents from starvation and has nothing to do with conjugal rights.

WHO CAN CLAIM MAINTENANCE UNDER SECTION 125?

As Stated above, the following person are entitled to claim maintenance under section 125 (1) are:

  1. Wife
  2. Child/ Minor Child
  3. Parents (Father and Mother or Both)

MAINTENANCE TO WIFE

For the Purpose of section 125 of Crpc ‘Wife’ means a legitimate or legally wedded wife. It also included divorced wife till she gets remarried. Section 125 of Crpc is a special provision and it is applicable to the married women of all religions. For the purpose of claiming maintenance under Section 125 of Crpc the wife must be an ‘abandoned wife’ (i.e., husband left her without reasonable cause), but not an ‘abandoning wife’ (i.e., the wife, who left her husband without reasonable cause).

  • Provisions/Conditions: –

To invoke relief (Claim Maintenance) under Section 125 of Crpc by the married women (wife) the following conditions are to be satisfied:

  1. The marriage must be legally wedded marriage as per their religion.
  2. She must not refuse to live with her husband without reasonable cause.
  3. She must not be Unchaste/live in adultery or remarried and
  4. She must not live separately by mutual consent.

Exceptions: –

  1. No Allowances if the wife is living in “Adultery”.
  2. If the wife without sufficient reason refuse to live with her husband.
  3. If wife is living separately by mutual consent.

If the above-mentioned exceptions are proved the interim maintenance order stands Cancelled.

MAINTENANCE TO MUSLIM WOMAN

The Code of Criminal Procedure is a territorial law and is applicable to all irrespective of their religion. Section 125 of Crpc is a special provision applicable to the married women of all religions including the Muslim Woman. The Supreme Court Upheld the Maintenance under Section 125 Crpc to Muslims Woman in a landmark case of Mohammed Ahmed Khan Vs. Shah Bano Begum, AIR 1985 SC 945.

MAINTENANCE TO CHILD/ MINOR CHILD

According to Section 125 of Crpc Children are entitled to maintenance. The “Word” child is not defined in the code. It means a child below 18 years of age unable to maintain himself/herself by virtue or reason of physical or mental abnormality and need not necessarily be a minor.

  • A Minor child whether legitimate or illegitimate.
  • An unmarried daughter of any age.
  • A son or daughter of any age, who suffers from physical or mental disability.

According to Section 3 of the Indian Majority Act, 1875 a minor is a person who has not completed eighteen years (18) of Age. The Minority extends to 21 years if a guardian is appointed to look after the minor’s person or property.

In simple words Minor means a person under the Provisions of the Indian Majority Act 1875 is deemed not have attained his majority. i.e., Who has not completed the age of 18 years. The Minority extends to 21 years if a guardian is appointed to look after the minor person. Section 125 Of Crpc is applicable to the Children of Muslim parents also.[1]

MAINTENANCE TO PARENTS (FATHER AND MOTHER OR BOTH)

 It is a Social and Pious Obligation to maintain parents. A Father or Mother unable to Maintain himself/herself is entitled to claim maintenance from his/her son.

There is a Conflict of Opinion among various High Courts with regard to the question whether daughter has an obligation to maintain her parents? This question has been resolved by the court in:[2]

The Expression father or mother includes adoptive father or Mother and it does not include step father or step mother. If there are two or more children the parents may claim maintenance from one of them or all of them.

A petition against any person in any district-

  • Where he reside.
  • Where he or his wife reside.
  • Where they both last resided.

In the Case of Pandurang Bhaurao Dabhade Vs. Baburao Bhaurao Dabhade, the Bombay High Court ruled that if a parent is unable to support himself, they may seek maintenance under Section 125(1) (d). However, its also crucial to remember that if t parents ask for maintenance from their children (son/ daughter) the children (son/ daughter) must have the money to support them even if they ignore or refuse to support their parents.

IMPORTANT CASE LAWS / PRECEDENTS

  1. Mohammed Ahmed Khan Vs. Shah Bano Begum AIR 1985 SC 945.
  2. Facts of the Case:

Mohammed Ahmed Khan got married to Shah Bano Begum. After 45 years of their marriage Ahmed Khan divorced Shah Bano begum by Pronouncing ‘Triple Talaq’ (i.e., Talak Talak Talak). Shah Bano Begum filed a petition against her husband for maintenance under section 125 of Crpc.

  • Held:

In this Case The Trial Court and Madhya Pradesh High Court upheld the Petition by a Muslim Woman Shah Bano for maintenance on the ground that Section 125 of Crpc is applicable to all including the Muslim Women.

Ahmed Khan Preferred an appeal before the Supreme Court contending that he had no obligations to pay maintenance beyond the Iddat Period. But the Supreme Court did not admit his contention and upheld the Maintence to Shah Bano.

  • Noor Saba Khatoon Vs. Mohd Quasim (1997) CrLJ 3972 (SC)

In this Case, it was held that the children of Muslim parents are entitled to claim maintenance under section 125 of Crpc for the period till they attain majority or are able to maintain themselves whichever is earlier, and in case of a female, till they get married.

  • Vijaya Manohar Arbat Vs. Kashirao Rajaram Sawai,1987 CrLJ 977 (SC)

In this Case, it was held that, the daughter whether married or not is liable to maintain her parents. Before passing the order of maintenance in favour of parents against their daughter, the court must be satisfied that the daughter has sufficient means of her own irrespective of her husband’s income. (If a married woman/ wife has separated from her husband in order to feed/ maintain her parents, it may be regarded as a “reasonable cause” and she may be entitled to claim maintenance from her husband.

CONCLUSION & COMMENTS

The protection of the rights of the divorced wife, children, and elderly parents depends on Chapter IX of the Code of Criminal Procedure. It is designed to safeguard them against strange means of living. Everyone with the necessary resources has a responsibility to maintain their property. There are serval provisions connected to maintenance included in this Chapter of the Cr.P.C.  such as who is entitled to maintenance, necessary requirements for awarding maintenance, procedure for maintenance, modification of the prior order, enforcement of order of maintenance etc.

REFERENCES

  1. Books / Commentaries / Journals Referred
    1. Ratanlal and Dhirajlal The Code of Criminal Procedure 1973.
  2. Cases Referred
    1. Mohammed Ahmed Khan Vs. Shah Bano Begum AIR 1985 SC 945 (Popularly Known as ‘Shah Bano Case’).
    1. Noor Saba Khatoon Vs. Quasim (1997) Cr.L.J.3972 (SC).
    1. Vijaya Manohar Arbat Vs. Kashirao Rajaram Sawai 1987 Cr.L.J. 977 (SC).
  3. Statutes Referred
    1. The Code of Criminal Procedure 1973 (Bare Act).

[1]  Noor Saba Khatoon Vs. Mohd Quasim (1997) CrLJ 3972 (SC).

[2] Vijaya Manohar Arbat Vs. Kashirao Rajaram Sawai, 1987 CrLJ 977 (SC).

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