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Under the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereafter referred to as the Act ) the provisions under Section 125 of the Code cannot be invoked and applied in case of a divorced Muslim woman and any order directing payment of maintenance to a Muslim woman who is divorced by her husband cannot be passed under Section 125 of the Code.
[See the full post at: All about getting maintenance u/s 125 of Cr.P.C]Magistrate to award sentence upto a maximum of one month for each month of default
Magistrate in exercise of powers under section 125 of the Criminal Procedure Code is empowered to sentence a defaulting person for a term upto one month (or until payment if sooner made) for each month of default subject of course to the limitation provided in proviso to sub-section (3) of section 125. In other words, it is open for the Magistrate to award sentence upto a maximum of one month for each month of default committed by the person ordered to pay maintenance and the maximum limit of sentence of one month referred to in sub- section (3) of section 125 will be applicable for each month of default. Magistrate can entertain separate applications from the person entitled to receive such maintenance or even entertain a common application for several months of default and pass appropriate order and, if found necessary, sentence a defaulting person upto a maximum one month fore each month of default. In all such cases, however, period of limitation provided in sub- section (3) of section 125 shall have to be borne in mind.
Recovery of Maintenance
Kuldip Kaur v. Surinder Singh, (1989) 1 SCC 405
“…sentencing a person to jail as per terms of Sections 125(3) of the Code is a ‘mode of enforcement’ and not ‘mode of satisfaction’ of the liability, which can be satisfied only by making actual payment of the arrears.”
Shahada Khatoon And Ors. vs Amjad Ali And Ors.
(1999) 5 SCC 672
ORDER
The short question that arises for consideration is whether the learned single Judge of the Patna High Court correctly interpreted Sub-section (3) of Section 125 of the Cr.P.C. by directing that the Magistrate can only sentence for a period of one month or until payment, if sooner made. The learned Counsel for the appellants contends that the liability of the husband arising out of an order passed under Section 125 to make payment of maintenance is a continuing one and on account of non-payment there has been a breach of the order and therefore the Magistrate would be entitled to impose sentence on such a person continuing him in custody until payment is made. We are unable to accept this contention of the learned Counsel for the appellants. The language of Sub-section (3) of Section 125 is quite clear and it circumscribes the power of the Magistrate to impose imprisonment for a term which may extend to one month or until the payment, if sooner made. This power of the Magistrate cannot be enlarged and therefore, the only remedy would be after expiry of one month, for breach of non-compliance of the order of the Magistrate the wife can approach again to the Magistrate for similar relief. By no stretch of imagination the Magistrate can be permitted to impose sentence for more than one month. In that view of the matter the High Court was fully justified in passing the impugned order and we see no infirmity in the said order to be interfered with by this Court. The appeal accordingly fails and is dismissed.
Liability to pay maintenance is a continuing liability and filing successive applications u/s 125(3) CrPC not required
Liability to pay maintenance is a continuing liability and filing successive applications u/s 125(3) CrPC cannot be insisted upon. See : Shantha Vs. B.G. Shivnanjappa, (2005) 4 SCC 468.
Attachment of salary for payment of arrear of maintenance when warranted ?
Where husband had not paid payment of arrear of maintenance to his wife awarded u/s 125 CrPC, the Supreme Court directed that the arrears of maintenance be paid in three installments within three months of reassessment of amount. Order of attachment of salary of husband could be reimposed in case of non-compliance with the directions for payment of maintenance. [Bhushan Kumar Meen v. Mansi Meen, (2010) 15 SCC 372]
<h2>Maintenance under Protection of Women from Domestic Violence Act, 2005 is different and in addition to an order of maintenance u/s 125 CrPC or any other law</h2>
<p style=”text-align: justify;”>Nature of relief available to a wife u/s 12 & 20 of the Protection of Women from Domestic Violence Act, 2005 is distinct from relief u/s 125 CrPC. Monetary relief as stipulated u/s 20 of the 2005 Act is different from maintenance which can be in addition to an order of maintenance u/s 125 CrPC or any other law. Such monetary relief can be granted to meet the expenses incurred and losses suffered by the aggrieved person and child of the aggrieved person as a result of the domestic violence which is not dependent on the question whether the aggrieved person, on the date of filing of the application u/s 12 of the 2005 Act is in a domestic relationship with the husband. [Juveria Abdul Majid Patni Vs. Atif Iqbal Mansoori, (2014) 10 SCC 736]</p>Proceeding u/s 125 CrPC summary in nature : Proceeding u/s 125 CrPC is summary in nature and intended to provide speedy remedy to wife.
(i) Nagendrappa Natikar Vs. Neelamma, AIR 2013 SC 1541<br role=”presentation” />(ii) Dwarika Prasad Satpathi Vs. Bidyut Prava Dixit, AIR 1999 SC 3348
Summary proceeding u/s 125 Cr PC
In the case of Dwarika Prasad Satpathy Vs. Bidyut Prava Dixit, AIR 1999 SC 3348, it has been held by the Hon’ble Supreme Court that the validity of the marriage for the purpose of summary proceeding u/s 125 Cr PC is to be determined on he basis of the evidence brought on record by the parties.
SECTION 125 IS SUMMARY IN NATURE
RAJNESH …APPELLANT<br role=”presentation” />Versus<br role=”presentation” />NEHA & Anr.
SUPREME COURT- 4/11/2020
Chapter IX of Code of Criminal Procedure, 1973 provides for<br role=”presentation” />maintenance of wife, children and parents in a summary proceeding.<br role=”presentation” />Maintenance under Section 125 of the Cr.P.C. may be claimed by a person<br role=”presentation” />irrespective of the religious community to which they belong. The purpose and<br role=”presentation” />object of Section 125 Cr.P.C. is to provide immediate relief to an applicant. An<br role=”presentation” />application under Section 125 Cr.P.C. is predicated on two conditions :
(i) the husband has sufficient means; and
(ii) “neglects” to maintain his wife, who is unable to maintain herself. In such a case, the husband may be directed by the<br role=”presentation” />Magistrate to pay such monthly sum to the wife, as deemed fit. Maintenance is<br role=”presentation” />awarded on the basis of the financial capacity of the husband and other relevant factors.<br role=”presentation” />
The remedy provided by Section 125 is summary in nature, and the<br role=”presentation” />substantive disputes with respect to dissolution of marriage can be determined<br role=”presentation” />by a civil court / family court in an appropriate proceeding, such as the Hindu<br role=”presentation” />Marriage Act, 1956.
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