PROCEDURE FOR MAINTENANCE OF WIFE and CHILD

PROCEDURE FOR MAINTENANCE OF WIFE and CHILD

Code of Criminal Procedure Criminal Law LAW EXPLAINED
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INTRODUCTION-

The maintenance for wife and child is a substantive right mentioned under procedural law upon which a whole chapter is devoted to the Code of criminal procedure as chapter IX, from Section 125 to 128. This right is introduced in our system to maintain the women and children as it is the ethics of our society, these provisions are here to support incapable women and children so that they need not suffer from the troublesome lifestyle and encourages mainly to women so that, they can live their life according to their rules along with demand for justice without any hesitation as, the law has already provided plenty of rights to women who are adding a lot in the conditions of women.

PROVISION APPLICABLE

The sections devoted for this right under CRPC are from section 125 to 129 which can be interpreted as-

Section 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 (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 is physically or mentally abnormal.[1]

Section 126 of the Code prescribes the procedure for the disposal of an application made under section 125.

Section 127 of the Code provides for alteration of the rate of maintenance in the light of the changed circumstances or order or decree of a competent civil court.

Section128 of the Code deals with the enforcement of the order of maintenance. It is not necessary to refer to the other details contained in the above-said provisions.[2]

A plain reading of the section indicates that only a legally wedded wife or a legitimate or illegitimate child could claim maintenance from the husband or the father, [3]

OBJECTIVE-

The jurisdiction of a magistrate under Chapter IX of the Code is not strictly a criminal jurisdiction. While passing an order under that Chapter asking a person to pay maintenance to his wife, child or parent, as the case may be, the magistrate is not imposing any punishment on such person for a crime committed by him[4] as the only objective of this law is to make the position of inferior and incapable peoples better and also, this is the responsibility of the peoples to maintain their families which can never be taken as a punishment. Along with these objectives, the Court must ensure that the orders of maintenance are not mere rhetoric and are meaningful and effective and give real sustenance and support to the destitute wife and/or the child.[5]

DEFINITION OF “MAINTENANCE”

The word maintenance is a well-known concept but instead of that, it does not have any definition, explanation, or specific section in law. Unless there is anything repugnant to the context definition of a particular word could be lifted from any of the four Acts (Hindu Marriage Act, 1955, Hindu Minority and Guardianship Act, 1956, Hindu Adoptions and Maintenance Act, 1956 and Hindu Succession Act, 1956) constituting the law to interpret a certain provision. All these Acts are to be read in conjunction with one another and interpreted accordingly. We can, therefore, go to Hindu Adoption and Maintenance Act, 1956 (for short the ‘Maintenance Act’) to understand the meaning of the ‘maintenance’. In clause (b) of Section 3 of this Act “maintenance includes (i) in all cases, provisions for food, clothing, residence, education and medical attendance and treatment; (ii) in the case of an unmarried daughter also the reasonable expenses and incident to her marriage” and under clause (c) “minor means a person who has not completed his or her age of eighteen years”. Under Section 18 of the Maintenance Act, a Hindu wife shall be entitled to be maintained by her husband during her lifetime.[6] As these laws are exactly defining the same what is getting interpreted from the above sections of Maintenance for women and children that’s why these acts can be taken as the basis to learn what maintenance is.

WHO CAN CLAIM MAINTENANCE UNDER IT-

  • WIFE- According to Section 125(1) (b)”wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried and in the law Lexicon of British India, by P.R. Aiyar. ‘wife’ has been defined as ‘a married woman’ For conferring the status of ‘wife’ on a woman, a marriage must be valid under law,[7]which means marriage is the mandatory requirement for women to get the status of wife and maintenance from his husband under this law.

In the case of Muslim women- the right of Muslim divorced woman to get maintenance from her husband under the provisions of Section 125 CRPC has been curtailed by the Act of 1986 and now she is entitled to get maintenance from her former husband only up to the period of IDDAT and the Muslim husband is not liable to make any provision or to pay any maintenance after the period of IDDAT is over.[8] Instead of these provisions, there are conditions when the wife is not entitled to get maintenance-

  1. When she is re-married
  2. Indulge in adultery
  3. Living separately with mutual consent
  4. Voluntary living separately
For example-

The wife is not at all entitled to claim maintenance, as she is voluntarily living separately from her husband; the wife also is guilty of uttering out falsehood before the lower Court, as she had at one point of time stated that she was jobless and subsequently she came forward with the plea that she was earning a sum of Rs.100/- per day.[9]

  • MINOR- According to Section 125(1) (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.
  • Daughter- If a daughter is minor and unmarried then she can claim maintenance instead there is no provision of maintenance for daughters but in case if a married daughter is not able to maintain her then she can claim for maintenance from her family, Section 3(b) of the Hindu Adoptions and Maintenance Act defines: “‘maintenance’ include –
  • In the case of an unmarried daughter, the reasonable expenses of the incident to her marriage.”

Even after marriage, a daughter who is not able to get maintenance from the family into which she has been married on account of its poverty can claim to be maintained by the heirs of her opulent father[10], also a father must maintain his female children absolutely until they are married when they have no property of their own. But he is not obliged to maintain his other male children unless they are disabled by infirmity or disease[11]

AMOUNT OF MAINTENANCE

There was no straight jacket formula for determining the number of maintenance payable to the claimants. Each case would have to be decided on its facts keeping in view the status and capacity of the parties.[12]

PROCEDURE- Section 126-

Defines the procedure for maintenance-

(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 in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance proceeds to be made, the Magistrate may proceed to hear and determine the case ex parte if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding or neglecting to attend the Court.

CONCLUSION

After reading the above provisions its gets to be found that legitimate or illegitimate child and wife can claim maintenance to fulfill their incapability, which is there right as well as the practice of our society. Also if we talk about the general thinking of the peoples while neglecting the reality of this modern era then, it is the fact of our society that one main reason behind the marriage of women with a man is that he will maintain her and fulfill her basic needs and on the other hand if we talk about minors then it indicates that there is a need of responsibility towards them, therefore, all these responsibilities and thinking enhances the demand of maintenance under Section 125.

Sources:

[1]https://indiankanoon.org/doc/1056396/

[2]Savitri W/O Shri Govind Singh … vs Shri Govind Singh Rawat on 9 October 1985

[3]Naurang Singh Chuni Singh vs Smt. Sapla Devi on 15 May 1968

[4]Savitri W/O Shri Govind Singh … vs Shri Govind Singh Rawat on 9 October 1985

[5]Rajeev Preenja vs Sarika& Others on 26 February 2009

[6] Padmja Sharma vs RatanLal Sharma on 28 March 2000

[7]I.Amudhavally vs P.Vissouvanadane on 20 January 2009

[8]Salma Bano vs Mohammed Rafiq And Anr. on 17 December 1990

[9]I.Amudhavally vs P.Vissouvanadane on 20 January 2009

[10]Commissioner Of Gift-Tax vs BandiSubba Rao on 24 February 1987

[11]Salma Bano vs Mohammed Rafiq And Anr. on 17 December 1990

[12]Sh. Rajiv Kapoor vs Smt. Seema Kapoor And Anr. on 25 May 2006

This blog is written by Anjali Tripathi, Nirma University

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