Maintenance under Section 125 of Criminal Procedure Code

Law Library

JURISDICTION:   

Family Court UNDER FAMILY COURTS ACT

COURT OF A FIRST CLASS MAGISTRATE UNDER Cr.P.C

Power of the respective court shall be applied for service -summons-evidence-and recovery of Maintenance.

Chapter IX of the Code deals with order for maintenance of wives, children and parents. Section 125 is the substantive provision by virtue of which a Magistrate may pass an order for payment of maintenance against a person having sufficient means but who neglects or refuses to maintain his wife, unable to maintain herself, or his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or 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 his father or mother, unable to maintain himself or herself, upon proof of such neglect or refusal. Sub-sec. (3) of Section 125 deals with enforcement of an order. If a person so ordered fails without sufficient cause to comply with the order, a Magistrate may, for every breach of the 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 remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made. It is not relevant to refer to the two provisos to the sub-section. Section 126 deals with procedure to be followed in regard to proceedings under Section 125. Section 127 deals with alteration of allowance once ordered by a Magistrate. Section 128 provides, inter alia, that the order could be enforced by any Magistrate in any place where the person against whom it is made may be.

Read More 

For Law of Domestic Violence & Domestic Violence Act click here

The Muslim Women (Protection Of Rights On Divorce) Act, 1986 [CLICK HERE]

Hindu Adoptions and Maintenance Act, 1956 [CLICK HERE]

Maintenance Under – Christian law

The Indian Divorce Act, 1869 Provides maintenance for a Christian wife. It recognizes the right of only wife to maintenance-both alimony pendente lite  and permanent alimony. The husband doesn’t have the same rights Under the said Act like Hindu Marriage Act.

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 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 the 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 the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person 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 proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.”;

Explanation.-For the purposes of this Chapter.-
(a)”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;

(b)”wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

(2) Any such allowance for the maintenance or interim maintenance and expenses of 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;

(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the 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 port of each month’s allowance 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 payment if sooner made:

Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a 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 marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him.

(4) No wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding , 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.

(5) 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.

126. Procedure

(1) Proceedings under section 125 may be taken against any person in any district.—
(a)where he is, or
(b)where he or his wife resides, or
(c)where he last resided with his wife, or as the case may be, with the mother of the illegitimate child.

(2) All evidence to such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made, or, when his personal attendance is dispensed with in the presence of his pleader, and shall be recorded in the manner prescribed for summons-cases: 

Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper.

(3) The Court in dealing with applications under section 125 shall have power to make such order as to costs as may be just.

Comment

” Though an exparte order was passed on 26.06.2012, the petitioner could not get the order executed and only after warrant of attachment were issued, the respondent immediately appeared before the court below and moved an application for stay of further proceeding along with an application under Section 126(2) Cr.P.C. for setting aside of the exparte order dated 26.06.2012. The said proceeding under Section 126(2) Cr.P.C. was registered as MJC Case No.597 of 2015…….In addition, the fact that the Court below while deciding the Application under Section 126(2) of Cr.P.C. also imposed heavy cost of Rs. 25,000/- upon the Respondent can not be brushed aside lightly, which itself acknowledges that the Court too had taken note of the conduct of the Respondent in evading the proceeding before the Court below. In these circumstances after imposing a heavy cost the Court below had allowed the Application seeking setting aside of the ex-parte order hence the same can not be said to be improper, bad in law or unjustified particularly keeping in view the plea of notice having not been effectively served on the Respondent-husband at his Pune address.”

127. Alteration in allowance

(1) On proof of a change in the circumstances of any person, receiving, under section 125 a monthly allowance for the maintenance or interim maintenance, or ordered under the same section to pay a monthly allowance for the maintenance, or interim maintenance, to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration, as he thinks fit, in the allowance for the maintenance or the interim maintenance, as the case may be.;

(2) Where it appears to the Magistrate that, in consequence of any decision of a competent civil Court, any order made under section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly.

(3) Where any order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that.-

(a)the woman has, after the date of such divorce, remarried, cancel such order as from the date of her remarriage;

(b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order-
(i)in the case where such sum was paid before such order, from the date on which such order was made,
(ii)in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman;

(c)the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance as interim maintenance, as the case may be after her divorce, cancel the order from the date thereof.

(4) At the time of making any decree for the recovery of any maintenance or dowry by any person, to whom a monthly allowance for the maintenance and interim maintenance or any of them has been ordered to be paid under section 125, the civil Court shall take into account the sum which has been paid to, or recovered by, such person as as monthly allowance for the maintenance and interim maintenance or any of them, as the case may be, in pursuance of the said order.

128. Enforcement of order of maintenance

A copy of the order of maintenance or interim maintenance and expenses of proceeding, as the case may be shall be given without payment to the person in whose favour it is made, or to his guardian, if any, or to the person to whom the allowance for the maintenance or the allowance for the interim maintenance and expenses of proceeding, as the case may be is to be paid; and such order may be enforced by any Magistrate in any place where the person against whom it is made may be, on such Magistrate being satisfied as to the identity of the parties and the non-payment of the allowance or as the case may be expenses, due .

THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON  DIVORCE) ACT, 1986

An Act to protect the rights of Muslim women who have been divorced by, or have obtained divorce from, their husbands and to provide for matters connected therewith or incidental thereto.

3(2) where a reasonable and fair provision and maintenance or the amount of mahr or dower due has not’ been made or paid or the properties referred  to in clause (‘d) of sub-section (1) have not been delivered to a divorced woman on her divorce, she or any one duly authorised by her -may, on her behalf, make an application to a Magistrate for an order for payment of such provision and maintenance, mahr or dower or the delivery of properties, as the case )may be.

FOR TOTAL COMMENTARY CLICK HERE 

Hindu Marriage Act, 1955

24. Maintenance pendente lite and expenses of proceedings.–

Where in any proceeding under this Act 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, it may, on the application of the wife or the husband, order the respondent to pay the petitioner the expenses of the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the Court to be reasonable.

25. Permanent alimony and maintenance.-

(1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purposes by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent’s own income and other property of the applicant, the conduct of the parties and other circumstances of the case, it may seem to the Court to be just, and any such payment may be secured, if necessary, by a charge on the immoveable property of the respondent.
(2) If the Court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just.
(3) If the Court is satisfied that the party in whose favour an order has been made under this Section has re-married or, if such party is the wife, that she has not remained chaste or if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just.

Supreme Court Cases

EMI for housing loan shall be considered for granting maintenance: BHUSHAN KUMAR MEEN Versus  MANSI MEEN @ HARPREET KAUR [Arising out of SLP(Crl.) No.7503 of 2008]