EvidenceJudicial ExamLegal Notes

PCS (J) Notes: CrPC, Sec 125, MAINTENANCE OF WIFE AND CHILDREN

 

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Ch.3. Maintenance of Wife, Children and Parents:

Sn.125 Cr.P.C. deals with the provisions relating to maintenance of wife, children and parents. One essential duty of the husband is to maintain his wife and children if they are not in a position to maintain themselves. The Cr.P.C. provides for a speedy remedy. The details are provided for in Sn.125 Cr.P.C.

Changes made in the Cr.P.C.1973:

The Joint Committee appointed by the Parliament had made certain observations. On the basis of these, some changes have been introduced in Sn.125 Cr.P.C.

(i) The Magistrate may make an order if the wife is unable to maintain herself.

(ii) The benefit is available to the parents also.

(iii) The benefit is available to a divorced wife so long as she does not remarry. This secures social justice to women.

(iv) In respect of children, maintenance benefit is available up to 18 years. After that there is maintenance, only if the child is under a physical or mental abnormality or injury unable to maintain itself.

A husband having sufficient means, may neglect to maintain his wife and children and parents. The Children may be legitimate or illegitimate. The wife and children and father and mother if they are unable to maintain themselves may move an application before the concerned Magistrate. If the Magistrate is satisfied about negligence or refusal of the husband to maintain his wife, children or parents he may make an order against the husband for payment of a monthly allowance. Such amount shall not exceed Rs.500/- per month. The Magistrate may order the payment to the applicant.

The amount becomes payable from the date of the order or from the date of the application by the wife. This is decided by the Magistrate.

 Who can claim maintenance under section 125?

(a) Wife – Sec 125 (1) (a)

(b) Child – Sec 125 (1) (b) and 125 (1) (c)

(c) Father/mother – Sec 125 (1) (d)

Enforcement of the Order:

The Magistrate, if he finds that the husband though he had sufficient means has failed to comply with the order, without any reason, may for every such breach, issue a warrant and may sentence the person to imprisonment for a month or until the amount is paid. The husband may offer to maintain his wife, if she is willing to live with him. But if the wife refuses on the ground that the husband has married another wife or has kept a mistress then it is a valid ground for her to refuse to live with him and to live separately.

Limitations:

  1. i) The amount should be claimed by the wife within a year from the date of the order of the Magistrate.

ii)The wife is not entitled to receive maintenance if she is living in adultery.

iii) She cannot get maintenance if, without proper reason, she refuses to live with the husband.

  1. iv) She cannot get maintenance if she is living separately with mutual consent.

If the above grounds are shown, the Magistrate may cancel the order of the maintenance.

Recording of Evidence:

The Magistrate shall record the evidence in the presence of the husband or his advocate. He shall follow the procedure of a summons case trial. He can also proceed Ex-parte (absence of the husband) if the husband wilfully neglects to attend the court. The ex-parte order can be cancelled within three months if there is a strong reason.

Muslim Women’s Right to Claim Maintenance

The Criminal Procedure Code being a uniform code applies to all sections of the society which includes the muslim community as well. The Supreme Court in Mohd. Ahmad Khan v. Shah Bano Begum, AIR 1985 SC 945, has held that section 125 CrPC being a Uniform Code applies to all irrespective of their religion and declared that clause  (b) of Explanation to section 125 contains no word of limitation which can justify exclusion of muslim woman. There had been a lot of

hue and cry by Muslim fundamentalists after this revolutionary judgment. Consequently, the Central Government was compelled to bring legislation nullifying the judgment of the Supreme Court. The parliament enacted the Muslim Woman (Protection & Divorce) Act, 1986 according to which the divorced muslim’s wife’s claim will now be determined by this Act.  According to the Act the Muslim divorced woman can claim maintenance only during the period of iddat (which is in consonance with personal law). 1986 Act took one retrograde step in the form that it said that husband’s liability to provide for maintenance is for iddat period only. The judicial innovation has been killed by 1986 Act. Therefore, many High Court have decision that even after this Act muslim’s woman right to maintenance is intact. Section 4 of 1986 Act provides that Muslim woman is not entitled to claim maintenance after the iddat period. So this Act makes the decision of the Shah Bano case nugatory. Afer iddat period the Act abrogates any other law (including CrPC) meaning thereby that section 125 of the Code will not be available after iddat period as per section 4 of 1986 Act. This section therefore stops application of section 125 CrPC and permits only muslim personal law that after divorce she is entitled to maintenance only during period of iddat.

The position of law has been made reasonable in the Supreme Court’s decision in Daniel Latif’s v. Union of India, (2001) 7 SCC 740, and it was held that muslim husband is liable to make reasonable and fair provison for the future of divorced wife which obviously includes her maintenance as well but such a reasonable and fair provision extending beyond iddat period must be made by husband within iddat period (as per provision of section 3 (1) (a)), according to which a reasonable and fair provision is to be made and paid to her within the iddat period by her former husband.

Scope of the Order:

The monthly allowance may be increased if there are sufficient reasons. However the maximum is Rs.500/- per month. The Magistrate shall give a copy of the order to the wife and such an order may be enforced by any Magistrate in any place in India where the husband may live. Such Magistrate has the same powers to enforce the order, as the Magistrate who made the order for maintenance.

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