125 CrPC Maintenance for Wife, Children and Parents: A Legal Guide

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Maintenance

After a divorce, a woman can claim financial support from her husband, which is known as maintenance. Maintenance can be claimed not just by a married or divorced woman, but also by a married man's children and parents, so the term has a much wider meaning.

 

‘The obligation of the husband to maintain his wife begins with marriage’.

A wife living separately from her husband for a justifiable cause can claim maintenance.

Legal Provisions

Legal provisions concerning the order for maintenance of wives and children are mentioned under Section-125 of the Criminal Procedure Code, 1973. 

As per Section-125(l) (a) of the Code:

If any person having adequate resources neglects or refuses to maintain his wife who’s unable to maintain herself, then a Magistrate of the first class upon proof, can order such person to make a fixed monthly allowance for the maintenance of his ex-wife. 

According to Section 125(1) of the Code, the following persons are entitled to claim maintenance under convinced circumstances:

1. Wife

The maintenance allowance cannot be granted to every wife who is neglected by her husband or whose husband has refused to maintain her. It can only be granted to a wife who is unable to maintain herself and not to the one who is maintaining herself with some difficulty. Maintenance means appropriate food, clothing, and lodging. By the phrase ‘unable to maintain herself’, it is not meant that she should be absolutely destitute and should be on the street, should beg and be in tattered clothes. The inability of the wife to maintain herself is a condition precedent to the maintainability of her application for maintenance. 

2. Child

The word ‘Child’ is not defined in the Code. It means a male or female person who has not reached full age, i.e., 18 years as prescribed by the Indian Majority Act, 1875, and who is incompetent to enter into any contract or to enforce any claim under the law.

3. Father or Mother

If any person having adequate resources neglects or refuses to maintain his father or mother who are unable to maintain himself or herself then a Magistrate of the first class can order such a person to make a monthly allowance to them as their maintenance. The amount payable could be fixed by the Magistrate as he thinks fit and it has to be paid from time to time as directed by him.

Maintenance Pendente Lite

During the pendency of the proceedings regarding the monthly allowance for the maintenance under Section 125(1) of the Code, the Magistrate can order such a person to make a monthly allowance for the interim maintenance to his wife, child or father or mother.

Essential conditions for granting maintenance: 

1. Sufficient means to maintain:

The person who has to make the claimed maintenance must have adequate means to maintain the person or persons claiming maintenance. The expression ‘means’ used here, does not signify only the visible means like real property or definite employment but refers to the earning capacity of the person.

2. Neglect or refusal to maintain:

The person from whom maintenance is claimed must have neglected or refused to maintain the person or persons entitled to claim maintenance. Neglect refers to the default or omission in the absence of a demand whereas ‘refuse’ refers to the failure to maintain or a denial of obligation to maintain after demand. A neglect or refusal to maintain might have happened by words or by conduct. Whereas it is the obligation of the claimant to prove the neglect or refusal by the person to make the maintenance.

3. Wife claiming maintenance must be unable to maintain herself:

The Code is designed to prevent vagrancy and thus the requirement to pay maintenance would be applicable only in respect of persons who are unable to maintain themselves. Therefore, the inability of the wife to maintain herself is a condition precedent to the maintainability of her application for maintenance. Maintenance here means appropriate food, clothing and lodging.

In Modern Hindu Law, a wife is also entitled to maintenance after the dissolution of marriage.

Thus, a wife’s right to maintenance may arise in the following situations:

1. When the wife lives with her husband.

2. When the wife lives separate from her husband, (not under a decree of the court), and

3. When the wife lives separately under a decree of the court (judicial separation) or when the marriage is dissolved.

Some important points:

1. A wife who resides with her husband must be maintained by him.

2. It can not be a valid ground to refuse maintenance, that his financial condition is not good.

3. The obligation of the husband to maintain his wife is a personal obligation.

4. Where an immature wife lives with her parents, it is the husband’s obligation to maintain her subsists.

5. Except the husband, no other member of the family has any personal obligation to maintain her.

6. The husband’s obligation to maintain her comes to an end only when she leaves him without any good cause or without his consent.

Sub-section (3) of Section-18 lays down that:

1. “A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceased to be a Hindu by conversion to another religion”.

2. A general disqualification; a non-Hindu can’t claim maintenance.

Grounds for Maintenance

When the wife lives apart:

According to Section-18(2), Hindu Adoptions and Maintenance Act, 1956

A wife who lives apart with the consent of the husband is entitled to maintenance.

She is also entitled to maintenance if she lives separate from her husband for a justifiable cause.

Section- 18(2) of the Hindu Adoptions and Maintenance Act, 1956 lays down the grounds on which a wife may live Separate and claim maintenance.

These are: ↴

Main Grounds 

1. Desertion

Desertion as a ground for living separately is defined by Section-16(2) as:

"Abandoning her without reasonable cause and without her consent or against her wish or of wilfully neglecting her”. 

Desertion must be at least for two years duration, while under the former it may be of any duration. On the ground of "wilful neglect" by the husband, the wife can live separately and claim maintenance. 

A Full Bench of the Kerala High Court has held that if the husband had deserted the wife, the wife need not give proof of animus.

2. Cruelty

Clause (b) of Section-18(2), Hindu Adoptions and Maintenance Act, gives the same definition to cruelty as is given to it, in Hindu Marriage Act, 1955.

If after solemnization of marriage, one of the spouses treats the other with cruelty.

The expression "cruelty" comprehends both physical and mental cruelty. Deciding whether the act, conduct, or attitude of behaviour of one spouse towards the other amounts to cruel treatment has to be measured by the resultant danger or apprehension of the victim.

The husband by his conduct made it evidently clear that she was not wanted in the house and her presence was resented by him, it was held that this amounted to cruelty and justified the wife's living separate. The burden of proof that the husband treated her with cruelty is on the wife. 

3. Leprosy

Clause (c) of Section-18(2) runs: 

Leprosy is an infectious disease that causes skin lesions and nerve damage. It is a chronic and curable disease in certain conditions.

Leprosy as a ground for the separate residence may be of any duration, no period is prescribed, but it must be existing at the time when the claim for separate residence and maintenance is made, it may have been existing before the marriage or it may have come into existence shortly before the claim is made.

4. Another wife is living

Clause (d) of Section-18(2) runs:

If he has any other wife living

This clause has come for interpretation in a number of cases. It should be noted that any wife can claim separate residence and maintenance provided one more wife is living at the time when the claim is made.

It is also immaterial that the wife had consented to the second marriage of the husband. A wife is entitled to maintenance and separate residence under this clause where the other wife is alive, and it is not necessary that the latter should have been or is living with the husband. It is also essential that both the marriages of the husband are valid.

5. Keeps a concubine (a woman who lives with a man but has lower status than his wife or wives)

Clause (e) of Section-18(2) runs: 

"If the husband keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere." "Keeping a concubine" or "living with concubine are extreme forms of "living in adultery".

In either cases, the wife is entitled to live separately and claim maintenance from her husband.

6.Conversion 

Clause (f) of Section-18(2) runs:

"If the husband has ceased to be a Hindu by conversion to another religion.”

When the husband has ceased to be a Hindu by conversion to another religion, e.g., Islam, Christianity, Judaism, or Zoroastrianism, the wife can file a case for claiming maintenance.

Forfeiture (denial) of the claim of maintenance

Section-18(3), Hindu Adoptions and Maintenance Act explains:

A wife entitled to separate residence and maintenance may forfeit her claim in the following three cases:

1. An unchaste wife has no right to claim separate residence and Maintenance.

2. A wife who has ceased to be a Hindu by conversion to another religion has no right to claim maintenance.

3. Once a view was that when the wife who had resumed cohabitation with her husband forfeits her claim for separate residence and maintenance, because the pre-condition of the claim is that the wife is living separately from her husband, if that pre-condition ceases to exist the wife can not continue to claim maintenance.

Right of the husband to claim maintenance

The Hindu Law still does not recognize the right of the husband to claim maintenance against the wife, except in the cases which are covered under Section-24 and 25 of the Hindu Marriage Act, 1955.

Section-24 entitles: 

Not only the wife but also the husband to claim maintenance pendente lite on showing that he has no independent source of income. However, the husband will have to satisfy the court that either due to physical or mental disability he is handicapped to earn and support his livelihood.

Section 25 of the Act states that:

The court can order the non-applicant to pay maintenance to the applicant in the form of a lump sum or monthly amount for his or her lifetime. However, a party may not be eligible for maintenance if there are any changes in their circumstances.

Quantum of Maintenance (Amount of money)

The Privy Council observed:

“Maintenance depends upon gathering together of all the facts of the situation, the amount of free estate, the past life of the married parties and the families.

Safe and reasonable induction is to be made by the court of law in arriving at a fixed sum.”

The writer is pursuing a degree of BA.LL.B (Bachelors of legislative law)

From, Department Of Law, Maharshi Dayanand University (Rohtak) Haryana, INDIA.

Reach him at Instagram @shivaanshvermaa