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Maintenance Provisions under the
Criminal Procedure Code
Section 125 of CrPC
Introduction
Maintenance means providing necessary supplies for a person's survival, including shelter, food, clothing, and other essential aspects of human life. The legal definition of maintenance is the financial support paid by one ex- spouse to another pursuant to a legal separation or divorce. This financial support is for the wife's or the divorced wife's livelihood, for her children, for the maintenance of the property, and in certain cases, even to enable her to be adequately represented in the lawsuit. It is the duty of every person to maintain his wife, children, and aged parents who are not able to live on their own.
The word 'Maintenance' is not defined in the Code of Criminal Procedure,
- Chapter IX of the Code of Criminal Procedure deals with provisions for the maintenance of wives, children, and parents. Section 125 of the Criminal Procedure Code, 1973, provides maintenance for the wife, children, and parents.
Need for the Provision of Maintenance in CrPC
There are several laws in India that provide for maintenance, such as The Hindu Adoption and Maintenance Act, 1956, and the Hindu Marriage Act,
- However, the purpose of including the provision of maintenance in the Criminal Procedure Code, rather than the Civil Procedure Code, is to make the proceedings more strict. The aim of Section 125 CrPC is the welfare of the wife by providing her with the required shelter and food after the separation from the husband.
Scope and Applicability of Section 125
Section 125 of the Criminal Procedure Code provides for the maintenance of the wife, child, and parents. The court, after the party has invoked Section 125 of the Code, may order the respondent, that is the husband, to maintain the wife who is unable to maintain herself by providing monthly maintenance to her. The husband must have sufficient means to support his wife after the separation, and the wife must not be living in adultery or living separately with her husband without any sufficient reasons.
Under Section 125 of the code, the provision is available for interim maintenance, which means that during the pendency of an application in the court of law, the order may be passed by the magistrate directing the husband to pay the monthly allowances to the wife. The main objective of Chapter IX of Cr.PC is not to punish a person who is not maintaining those
whom he is bound to maintain, but to prevent homelessness by providing a speedy remedy to those who are in need.
Order for Maintenance of Wives, Children, and Parents
According to Section 125(1), the following persons can claim and get maintenance:
Wife from her husband Legitimate or illegitimate minor child from his father Legitimate or illegitimate minor child (physical or mental abnormality) from his father Father or mother from his son or daughter
A wife can claim and get maintenance from her husband if she is divorced by her husband, has obtained divorce from her husband, has not remarried, and is not able to maintain herself. A wife cannot claim and get maintenance from her husband if she is living in adultery, refuses to live with her husband without any valid reasons, or is living separately by mutual consent.
Legitimate or illegitimate minor children are entitled to get maintenance under Section 125 of Cr.PC. If the minor daughter is unmarried, she is entitled to get maintenance from her father, and if she is married, she is also entitled to get maintenance from her father, but the magistrate has to be satisfied that her husband has not essential and sufficient means for her maintenance.
Natural father and mother can claim maintenance under Section 125 of CrPC, and adoptive parents can also claim maintenance. There is a statutory obligation for the children to maintain their father, and this claim cannot be defeated by pleading that the father failed to fulfil his parental obligation.
Essential Conditions for Granting Maintenance
There are some essential conditions that should be fulfilled for claiming and granting maintenance:
Sufficient means for maintenance are available. Neglect or refusal to maintain after the demand for maintenance. The person claiming maintenance must be unable to maintain himself/ herself.
If any person has sufficient means for maintenance, then it is his duty to maintain his wives, children, and parents. If sufficient means are not available, then it will be a perfect and valid defense for people who are legally bound for maintenance of wife, children, and parents.
The person claiming maintenance must be unable to maintain himself/ herself. If a wife is earning well, then she cannot claim maintenance under this Section. However, if a wife is hale and healthy and is sufficiently educated to earn for herself but refuses to earn from her own and claims maintenance from her husband, she will be entitled to claim maintenance,
for levying the amount with fines. If the person fails again after the execution of the warrant, the punishment of imprisonment for a term that may extend to one month or until payment is made, whichever is sooner, is awarded.
Procedure for Maintenance
Section 126 of the Code of Criminal Procedure deals with the "Procedure for Maintenance." This section states that the proceedings under Section 125 may be taken in the district where the person is, or where they or their wife resides, or where they last resided with their wife or the mother of an illegitimate child. The evidence is to be taken in the presence of the person against whom the maintenance is to be ordered. If the person is willfully avoiding the summons, ex-parte evidence is taken in that case.
Alteration in Allowance
According to Section 127(1), if a Magistrate ordered an allowance for maintenance under Section 125 based on the conditions of the parties at that time, but the present conditions of the parties have changed, the Magistrate can also order to alter the allowance. For example, if the husband had a well-settled job and means for maintenance, and the court ordered him to maintain his wife, but in the present condition, the husband has no job and means for maintenance, the court can alter the allowance and reduce the amount.
Similarly, if a wife was not having any job or was unable to maintain herself, and she got the order of allowance under Section 125, the court can order to remove or cancel the allowance.
According to Section 127(2), the Magistrate shall cancel or revoke any order given under Section 125 if it appears that it should be cancelled due to any decision of the competent Civil Court. For example, if the Magistrate has ordered to give allowance to the wife after divorce, but the Civil Court has ordered them to live together, the Magistrate has to revoke the order given under Section 125.
According to Section 127(3), the Magistrate can cancel the order in favor of a woman under Section 125 if the woman is remarried after divorce, has taken allowance under any personal laws after divorce, or has voluntarily left her right to maintenance.
According to Section 127(4), the Civil Court shall take into account the sum which has been paid to such a person as monthly allowance for maintenance and interim maintenance under Section 125 at the time of making any decree for the recovery of any maintenance or dowry.
Enforcement of Order of Maintenance
Section 128 deals with the "Enforcement of Order of Maintenance." According to this section, the copy of the order under Section 125 is to be given to the person in whose favor it is made, free of cost. In the case of an order in favor of children, the copy of the order will be given to the guardian of the children.
Any Magistrate of India can enforce the order of maintenance made by a Magistrate under Section 125, where the person who has to give the maintenance lives. The Magistrate has to satisfy two conditions before enforcement of the order: the identity of the parties and proof of non- payment of the allowances.
