Maintenance Under Section 125 of CRPC and the Domestic Violence Act

Date : 01 May, 2021

Post By Bhupender Tanwar

Section 125 of the Code of Criminal Procedure, provides for the maintenance irrespective of religion and faith. Maintenance can be claimed by the wife, children, or elderly parents. The people who can claim maintenance under this category are:

The wife is not able to maintain herself.
The maintenance of the minor child who is not able to maintain, irrespective of the fact that the child is legitimate or illegitimate. Here the fact that whether the child is married or not doesn’t matter.
The maintenance of the illegitimate or the legitimate child who has attained the majority but is not able to maintain and the child suffers mental and physical abnormality, or is injured and not able to maintain itself. The married girl child is an exception under this section.
The father, mother, who is not able to maintain themselves can file a suit under this section. The magistrate first class can pass an order for the maintenance of the father, mother, wife, and the child at the monthly rate of not exceeding 500 rupees. Here the magistrate can direct time from time regarding the payment of the maintenance.
If the person against whom the order is passed doesn’t comply with the order then in that case a warrant can be issued. If the wife refuses to live with the husband where the maintenance was supposed to be given on the condition that she lives with him and she refuses then in that case this section won’t be applicable.
The wife who commits adultery won’t be coming under this section.
If the wife lives in adultery, refuses to live with her husband, or that they are living separately with mutual consent then in that case the magistrate might cancel the order.

In the Domestic Violence case, the condition of the woman is so vulnerable, and therefore the statutes ensure that the woman does get proper care and are being able to maintain themselves. Section 12 of the Domestic Violence Act also provides for the maintenance of the woman and Section 125 of the CrPC also provides for the maintenance. So the common question which is raised is whether the woman will be able to get the maintenance under the Domestic Violence Act and section 125 of the CrPC as well.

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Punishment: If the person against whom the order is passed doesn’t comply with the order then in that case a warrant can be issued. If the wife refuses to live with the husband where the maintenance was supposed to be given on the condition that she lives with him and she refuses then in that case this section won’t be applicable. Also, imprisonment for up to one month will be given. The court can also calculate the arrears and ask the husband to pay them. Under the Protection of Women from Domestic Violence Act, the court has stated that a husband who fails to provide the maintenance on the order of the court can be arrested on a non-bailable warrant.

Case laws: In the landmark case of the Shome Nikhil Danani v. Tanya Banon Danani, In this case, the married husband and wife were living separately. The wife was granted maintenance under section 125 of the CrPC. She filed a case in the trial court, seeking the maintenance under section 23 of the Domestic Violence Act. Her plea was rejected. But the appellate court ordered the filing of the fresh case. To which the Husband appealed that, Appellate court has made the mistake in passing the impugned order as the maintenance was already being granted to his wife. The High Court observed: “While Section 125 CrPC talks only, of maintenance, Section 20 DV Act stipulates payment of monetary relief to meet the expenses incurred and losses suffered as a result of the domestic violence including but not limited to loss of earnings, medical expenses, loss caused due to destruction, damage or removal of any property from the control of an aggrieved person.”And therefore the petition of the husband was dismissed. The court was of the view that both the sections Section 125 and the section 20 of the DV Act serves the different purpose whereas one serves for the maintenance of the wife and the DV Act serves the purpose of the expenses incurred because of the domestic violence such as the injury, mental harassment, etc.

In the case of Rajnesh v. Neha & Anr, the court stated that the wife will be entitled to the maintenance from the date the application was filed. As the court was of the notion that the reason for filing the case is that the wife is not able to maintain herself and that shall be from the date of the application being made in the court.

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Procedure for filing a case under Section 125 of the CrPC.

Application for the Interim maintenance under section 125 of the CrPC has to be filed.
Maintenance Affidavit needs to be filed under this section.
With the above requisite one must have proof of the marriage in case of the wife such as the marriage certificate, photos, etc. The personal information such as the photograph as well as the details of the applicant needs to be submitted as well.
After the admission of the case in the court, the applicant will state the facts along with the help of the above-stated documents.
After that, the legal notice will be sent to the husband.
And the legal proceedings will then be continued.

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