- In the case of Sudeep Chaudhary vs Radha Chaudhary – AIR 1999 SC 536, wife had filed an application under Section 125 of Code of Criminal Procedure and was awarded the maintenance @ of Rs.350/- per month and was subsequently enhanced to Rs.500/- per month. In the proceeding under the Hindu Marriage Act, 1955 also interim alimony was sought by the wife under Section 24 of the 14 Cri.Revn.203/2017 Hindu Marriage Act, 1955. It was granted @ of Rs.600/- per month and was subsequently enhanced to Rs.800/- per month. Since, the husband failed to pay the amount of maintenance as aforesaid, the wife started recovery proceedings, whereupon the husband contended that the maintenance amount under Section 125 of Cr.P.C. should be adjusted against the interim alimony and the Magistrate, before whom the recovery proceedings were pending, upheld the contention. The High Court, however, held that the Magistrate was in error in directing the adjustment of the maintenance amount awarded under Section 125 of Cr.P.C. against the amount awarded under Section 24 of the Hindu Marriage Act. The Hon’ble Apex Court set aside the order passed by the Hon’ble High Court by observing that the amount awarded under Section 125 of Cr.P.C. for maintenance was adjustable against the amount awarded in the matrimonial proceedings and no maintenance was liable to be given over and above the same.
- Trial Court has however failed in appreciating the ratio laid down in the said Judgment and has wrongly held that the Judgment of the Civil Court is binding on the Criminal Court so far as the amount of maintenance is concern and not vice- versa. From the Judgment of the Hon’ble Apex Court it is clear that the Hon’ble Apex Court allowed the adjustment of the lower amount (Rs.500/-) awarded by the Magistrate against the higher amount of Rs.800/-, which was subsequently enhanced to Rs.1000/-, awarded by the Matrimonial Court.
- In the case of Shailendra Nath Gosh vs. State of West Bangal – 1997 CRI.L.J. 4591, the Hon’ble Calcutta High Court allowed the adjustment of maintenance awarded by the Matrimonial Court under Section 24 of the Hindu Marriage Act against the maintenance awarded under Section 125 of Cr.P.C. since the amount of 16 Cri.Revn.203/2017 maintenance awarded by the Matrimonial Court was lower than the amount awarded by the Magistrate’s Court under Section 125 of Cr.P.C.
- In Sanjay vs. Swati – 2006 DMC 731 Bombay, the maintenance was awarded to the wife in the proceeding under Hindu Marriage Act under Section 24 of the said Act and also in an application filed by her under Section 125 of Cr.P.C. The maintenance @ of Rs.1500/- was awarded under Section 125 of Cr.P.C.; whereas, maintenance was awarded @ 2000/- per month under Section 24 of the Hindu Marriage Act. The wife had filed an application before the Family Court for recovery of the arrears of maintenance ordered under Section 125 of Cr.P.C. In the said application the husband claimed that he was not bound to pay the amount of maintenance under Section 125 of Cr.P.C. since he was already paying higher amount of maintenance in compliance with the order passed under Section 24 of the Hindu Marriage Act. The Family Court rejected his request and hence the husband approached the High Court. The learned Single Judge of BHC Court set aside the order passed by the Family Court and clarified that the respondent wife shall not be entitled to claim execution of the order under Section 125 of the Cr.P.C. until she receives or continue to receive the amount of maintenance under section 24 of the Hindu Marriage Act.
- The wife and children can claim maintenance under Section 125 of the Code of 18 Criminal Procedure, under Section 18 and 20 of the Hindu Adoption and Maintenance Act, 1956 and also under Section 20 read with 23 of the D.V. Act. The wife additionally can claim interim alimony under Section 24 of the Hindu Marriage Act. Even if all these remedies are simultaneously pursued by the wife and some or the other order is passed in each of the said proceedings, it would not be permissible for the wife to claim the amount of maintenance awarded in each of the said proceedings independently. Firstly, the propriety demands that if any similar relief is granted in the earlier proceedings, the person in whose favour such relief is granted has to disclose the said fact in the subsequent proceedings. For a moment even if it is presumed that no such discloser was made or in a hypothetical situation, all the proceedings are simultaneously decided, the husband will definitely have a right to claim adjustment of the amount awarded in the said proceeding and can not be subjected to 19 Cri.Revn.203/2017 independently pay the amount of maintenance awarded under each of the said proceedings.
Section 125 of the Cr.P.C., relevant for deciding the controversy in the present matter, reads as under, –
125. Order for maintenance of wives, children and parents – (1) If any person having sufficient means neglects or refuses to maintain –
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, 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 such Magistrate thinks fit, and to pay the same to 7 Cri.Revn.203/2017 such person as the magistrate may from time to time direct”
Sections 20, 26, and 36 of the DV Act, which read thus, –
“20. Monetary reliefs. – (1) While disposing of an application under sub-section (1) of Section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but not limited to, –
(a) the loss of earnings;
(b) the medical expenses;
(c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and
(d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force.
(2) The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed.
(3) The Magistrate shall have the power to order an appropriate lump 8 Cri.Revn.203/2017 sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require.
(4) The Magistrate shall send a copy of the order for monetary relief made under sub-section (1) to the parties to the application and to the in charge of the police station within the local limits of whose jurisdiction the respondent resides.
(5) The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub- section (1).
(6) Upon the failure on the part of the respondent to make payment in terms of the order under sub-section (1), the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the Court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent.
26. Relief in other suits and legal proceedings.- (1) Any relief available under sections 18,19,20,21 and 22 may also be sought in any legal proceedings, before a civil Court, family Court or a criminal Court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act.
(2) Any relief referred to in sub- section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal Court.
(3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief.
36. Act not in derogation of any other law, – The provisions of the Act shall be in addition to, and not in derogation of the provisions of any other law for the time being in force.”
18. Maintenance of wife.(1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime.
(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance,
(a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or of wilfully neglecting her;
(b) if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband;
(c) if he is suffering from a virulent form of leprosy;
(d) if he has any other wife living;
(e) if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere;
(f) if he has ceased to be a Hindu by conversion to another religion;
(g) if there is any other cause justifying her living separately.
(3) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion.
Section 125 CrPC is to stop vagrancy only
There can be no shadow of doubt that an order under Section 125 CrPC can be passed if a person despite having sufficient means neglects or refused to maintain the wife. Sometimes, a plea is advanced by the husband that he does not have the means to pay, for he does not have a job or his business is not doing well. These are only bald excuses and, in fact, they have no acceptability in law. If the husband is healthy, able bodied and is in a position to support himself, he is under the legal obligation to support his wife, for wife’s right to receive maintenance under Section 125 CrPC, unless disqualified, is an absolute right. While determining the quantum of maintenance, Supreme Court in Jabsir Kaur Sehgal v. District Judge Dehradun & Ors., (1997) 7 SCC 7 has held as follows:-
“The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate.”
Grant of maintenance to wife has been perceived as a measure of social justice by this Court. In Chaturbhuj v. Sita Bai, (2008) 2 SCC 316, it has been ruled that:-
“Section 125 CRPC is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in Captain Ramesh Chander kaushal v. Veena Kaushal, (1978) 4 SCC 70 falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India. It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of good, clothing and shelter to the deserved wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are enable to maintain themselves. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya v. State of Gujarat, (2005) 3 SCC 636.”
This being the position in law, it is obligation of the husband to maintain his wife. He cannot be permitted to plead that he is unable to maintain the wife due to financial constraints as long as he is capable of earning.
In this context, we may profitably quote a passage from the judgment rendered by the High Court of Delhi in Chander Prakash Bodhraj v. Shila Rani Chander Prakash, AIR 1968 Delhi 174 wherein it has been opined thus:-
“An able-bodied young man has to be presumed to be capable of earning sufficient money so as to be able reasonably to maintain his wife and child and he cannot be heard to say that he is not in a position to earn enough to be able to maintain them according to the family standard. It is for such able-bodies person to show to the Court cogent grounds for holding that he is unable to reasons beyond his control, to earn enough to discharge his legal obligation of maintaining his wife and child. When the husband does not disclose to the Court the exact amount of his income, the presumption will be easily permissible against him.”
From the aforesaid enunciation of law it is limpid that the obligation of the husband is on a higher pedestal when the question of maintenance of wife and children arises. When the woman leaves the matrimonial home, the situation is quite different. She is deprived of many a comfort. Sometimes the faith in life reduces. Sometimes, she feels she has lost the tenderest friend. There may be feeling that her fearless courage has brought her the misfortune. At this stage, the only comfort that the law can impose is that the husband is bound to give monetary comfort. That is the only soothing legal balm, for she cannot be allowed to resign to destiny. Therefore, the lawful imposition for grant of maintenance allowance.
The Apex Court in the case of Manish Jain vs. Akanksha Jain reported in AIR 2017 SC 1640 held as under:-
Section 24 of the HM Act empowers the Court in any proceeding under the Act, if it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, if may, on the application of any one of them order the other party to pay to the petitioner the expenses of the proceeding and monthly maintenance as may seem to be reasonable during the proceeding, having regard to also the income of both the applicant and the respondent. Heading of Section 24 of the Act is “Maintenance pendente lite and expenses of proceedings.” The Section, however, does not use the word “maintenance”, but the word”support” can be interpreted to mean as Section 24 is intended to provide for maintenance pendente lite.
An order for maintenance pendente lite or for costs of the proceedings is conditional on the circumstance that the wife or husband who makes a claim for the same has no independent income sufficient for her or his support or to meet the necessary expenses of the proceeding. It is no answer to a claim of maintenance that the wife is educated and could support herself. Likewise, the financial position of the wife’s parents is also immaterial. The Court must take into consideration the status of the parties and the capacity of the spouse to pay maintenance and whether the applicant has any independent income sufficient for her or his support. Maintenance is always dependent upon factual situation; the Court should, therefore, mould the claim for maintenance determining the quantum based on various factors brought before the Court.
Section 125 is a secular Law, on the other hand, Hindu or Muslim laws pertain to maintenance are special law and personal law having religious implication.