Maintenance of Wives, Children, and, Parents - CRPC 125
Date : 23 Aug, 2021
Post By Bhupender Tanwar
Section 125 of the code of criminal procedure provides that any person having sufficient means to maintain himself cannot refuse the maintenance to the wife, children, and parents if they are unable to maintain themselves. After a party invoked Section 125 of the Code, the court may order the respondent, that is the husband, to provide monthly maintenance to his wife who is unable to support herself. For the purpose of giving maintenance to the wife, the husband has to be sufficient enough to maintain his wife after the separation and at the same time, the wife must not be doing adultery or living separately with her husband without any sufficient reasons. Even if they live separately with mutual consent, then also the wife will not be entitled to any type of maintenance. Whenever a judgment passes in favor of the wife, the court must ensure that the husband has sufficient means to provide maintenance. The court is also required to make sure that the wife after the separation does not have sufficient money to support herself.
The purpose of Section 125 CrPC was discussed in the case of K. Vimal v. K. Veeraswamy 1991 SCC (2) 375, where it was held that Section 125 of the Code had been introduced for achieving a social purpose. The purpose of this section is the welfare of the wife by providing her with the necessary shelter and food following her separation from the husband. It was held in this case that if the wife has lived like a wife and the husband had treated her like a wife for all the years prior to their separation then the wife cannot be denied maintenance by her husband.
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Persons entitled to claim maintenance: The following person is entitled to claim maintenance as per section 125(1) of CrPC, under some circumstances:
Wife: If any person as per Section 125(l) (a) of the Code have sufficient means but neglects or refuses to maintain his wife, who is not able to support herself, a Magistrate of the first class may, upon proof of such refusal or neglect, direct such person to give a monthly allowance for his wife’s maintenance at such monthly rate the Magistrate deems fit, and to pay the same to such person as the Magistrate may direct from time to time. Here ‘wife’ includes a woman who has been divorced or has obtained a divorce from her husband and has not remarried.
‘Wife’ for the meaning of Section 125 means a legally married woman. As per Section 125(l)(a) of CrPC, a maintenance allowance could not be given to every wife who is neglected by her husband or whose husband deny to maintain her, Instead, this can only be given to a wife who is unable to support herself but not to a wife who is maintaining herself with a certain difficulty. By the phrase ‘unable to maintain herself’, it is not meant that she must be completely destitute and should be first on the street, should beg and be in worn-out clothes, and then only she will be entitled to file an application under Section 125 of the Code.
Mohd. Ahmed Khan v. Shah Bano Begum, 1985 (2) SCC 556: In this case, it is declared that a Muslim husband with sufficient means must provide maintenance to his divorced wife who is not able to maintain herself. Such a wife is entitled to get the maintenance even if she refuses to live with the Muslim husband because he has contracted another marriage within the limits of four wives allowed to him by the Quran. The Supreme Court Bench held that a Muslim divorced woman who cannot maintain herself is entitled to maintenance from her former husband until she remarries. They dismissed the plea that maintenance is payable for the iddat period only. The judges also rejected the contention that deferred Mahr is a payment on the wife’s divorce and thus such payment under the personal law excludes the payment of any maintenance by the husband to the wife. The Supreme Court held that in case of any conflict between personal law and Section 125, then it is clear from the language of Section 125 that it overrules the personal law. Child: As per Section 125(1)(b) of the Code, if any person who have sufficient means but refuses to support his legitimate or illegitimate minor child, whether married or not, who is unable to maintain themselves or according to Section 125(1)(c) of the Code, his legitimate or illegitimate child (not a married daughter) who has reached majority, where such child due to any physical or mental abnormality or injury are not able to maintain themselves. A magistrate of the First class upon finding such neglect or refusal may order such person to grant a monthly allowance for the maintenance of such child, at such monthly rate as the magistrate deems fit, and to pay the same to such person as the Magistrate may direct from time to time. Here ‘minor’ means a person who does not attain the age of majority under the provisions of the Indian Majority Act, 1875. Father or Mother: According to Section 125(l)(d) of the Code, if any person who has sufficient means, but neglects or refuses to maintain his father or mother, not able to support himself or herself, a Magistrate of the first class may upon finding proof of such neglect or refusal may order such person to provide a monthly allowance for the maintenance of his parents, at such monthly rate the Magistrate deem fit, and to pay the same to such person as the Magistrate may direct from time to time. The daughter whether she is married or unmarried will also be liable to maintain the parents. Essential conditions for granting maintenance: Sufficient means to maintain: According to Section 125(1) of the CrPC, the person from whom maintenance is claimed must have sufficient means to maintain the person or persons claiming maintenance. Here, the expression ‘means’ does not signify only visible means such as real property or definite employment. The words ‘sufficient means’ should not be confined to the actual pecuniary resources but should have reference to the earning capacity. If a person is healthy and capable, he must be held to have the means to support his wife, children, and parents. The capability of a person to pay must be proved to fix the quantum of maintenance. Neglect or refusal to maintain: As per Section 125(1) of the Code, the person from whom maintenance is claimed must have neglected or refused to maintain the person or persons entitled to claim maintenance. Neglect means a default or omission in the absence of demand whereas ‘refuse’ means a failure to maintain or a denial of obligation to maintain after demand. Person claiming maintenance must be unable to maintain himself or herself: As the object of Section 125 of the Code is mainly to avoid vagrancy; the requirement to pay maintenance should be only in respect of persons who are unable to maintain themselves. The inability of the wife to maintain herself is a condition precedent to the maintainability of her application for maintenance. The maintenance has to be decided in light of the standard of living of the person concerned. The amount of maintenance should be such that the woman should be in a position to maintain herself and that it should not be much below the status which she was used to at the place of her husband. Special requirements where maintenance is claimed by wife: The wife must not be living in adultery: As per Section 125(4) of the Code of Criminal Procedure, no wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of the proceeding, as the case may be, from her husband under Section 125 if she is living in adultery. The term ‘living in adultery’ means outright adulterous conduct where the wife lives in a quasi-permanent union with the man with whom she is committing adultery. Get in touch with the best lawyer online Wife must not refuse without sufficient reasons to live with her husband: According to Section 125(4) of the Code of Criminal Procedure, no wife shall be entitled to receive an allowance for the maintenance from her husband, if she refuses to live with her husband. A wife must not refuse to live with her husband without sufficient reason to get maintenance. What could be considered as a sufficient reason for the wife’s refusal to live with her husband would depend upon the facts and circumstances in each case. As per explanation to Section 125(3) of the Code, if a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be a just ground for his wife’s refusal to live with him. The wife must not be living separately by mutual consent: As per Section 125(4) of the Code of Criminal Procedure, no wife shall be entitled to get an allowance for the maintenance from her husband if they are living separately by mutual consent. A divorced wife cannot be characterized as a wife living separately by mutual consent. A divorced wife is a person who lives separately from her former husband by virtue of a change in status consequent upon the dissolution of the marriage.
