Written by: Anushka Patil
Section 125 of Code of Criminal Procedure states that any person having sufficient means to maintain himself cannot refuse the maintenance to the wife, children, and parents if they are unable to maintain themselves. Although the definition of the word ‘Maintenance’ has not been provided in the Code of Criminal Procedure, 1973; maintenance means “the act of keeping something in good condition by checking or repairing it regularly” (according to oxford learners dictionary). In legal terms, the word maintenance would mean a sum of money to be paid to a wife (especially if they have children together), children, and parents who for some reason might not be able to pay for themselves.
WHO CAN CLAIM MAINTENACE
According to Section 125(1) of the Cr.PC maintenance can be claimed from a husband by his wife, his minor legitimate or illegitimate children, or parents from their son/daughter.
WIFE: As per section 125(1) (a) of Cr.PC if a man who has sufficient means decides to neglect to pay his wife who is unable to provide for herself, then upon producing sufficient proof of negligence a magistrate of first class can direct the husband to pay some amount of money at a monthly rate that he deems to be fit. Although not all wives who are neglected by their husbands can claim maintenance. Maintenance can only be claimed by a wife who is unable to maintain herself and not by a wife who is able to maintain herself with certain difficulties. The word ‘Wife’ is not limited to a married woman but a woman who has been divorced by her husband and has not remarried.
SON: A minor son whether legitimate or illegitimate is entitled to receive maintenance under Section 125(1) (b) of the Cr.PC.
Section 3 of the Indian Majority Act, 1875 the word ‘Minor’ means a person who is yet to attain his majority i.e., to reach the age of 18 years.
DAUGHTER: A minor daughter whether legitimate or illegitimate (unmarried) is entitled for maintenance from her father. If the daughter is married, she can still claim maintenance from her father if enough evidence is provided in front of the magistrate that her husband does not posses sufficient means to maintain his minor wife. Although recently under The Prohibition of Child Marriage (Amendment) Bill, 2021 the legal age for marriage has been risen from 18 years to 21 years of age for the bride.
AN ABNORMAL OR PHYSICALLY UNFIT CHILD: If a child whether legitimate or illegitimate, minor, or major has abnormalities (mental or physical) can claim maintenance from his father on the basis of abnormality.
FATHER OR MOTHER: The parents can as well claim maintenance from their wards if they do not have sufficient means to maintain themselves. Both the biological mother and father can claim maintenance from their ward. Section 125 also includes adoptive parents as well as step parents who can claim maintenance from their children if they refuse to maintain their parents despite of having sufficient means, a magistrate of first class can instruct the children upon receiving sufficient proof, to pay the amount of money that he deems fit. The claims of a father are considered as a statutory obligation which can not be defeated by pleading that the father was unable/failed to fulfil his parental obligation.
CONDITIONS FOR GRANTING MAINTENANCE:
There are a few essential conditions that need to be fulfilled in order to either claim or grant maintenance.
Sufficient means to maintain: If a man has sufficient means to maintain himself as well as his wife, children, and parents then he shall do so. In a case where in the person only has sufficient means to provide for himself then this would be a valid defence against providing maintenance. Here ‘sufficient means should not be measured by his pecuniary resources but by his earning capacity.
Person claiming maintenance should be unable to maintain themselves: The person claiming maintenance should incapable of maintain themselves in order to claim the maintenance. For example, if a wife is unable to maintain herself, then she can claim a maintenance from her husband. Although if the wife can maintain herself with certain difficulties, then maintenance claim can be rejected. The amount to be paid for maintenance is decided based on standard of living of the concerned people. The wife should be able to maintain herself and should not be below the status while she was living with her husband.
Neglect or refusal to maintain: The person from whom the maintenance is been claimed should have refused or denied to maintain their wife/children/parents upon request.
Special requirement while claiming maintenance:
The wife must not be living in adultery: As per section 125 (4) of Cr.PC. no wife shall be entitled to maintenance or the interim maintenance and expenses of the proceeding, if she is living in adultery. The term ‘living in adultery’ means an outright adulterous conduct where the wife is maintaining lewd relation with person other than her husband.
Wife must not refuse to live with her husband without sufficient reasons: A wife should have sufficient reasons as to why she is not living with her husband. The reasons that could be considered as sufficient would vary from case to case depending on the circumstance and facts of that particular case.
The wife must not be living separately with mutual consent: according to section 125 (4) Cr.PC. the wife will not be entitled to maintenance if the married couple had separated with mutual consent.
Quantum of maintenance:
The phrase ‘quantum of maintenance’ refers to the sum payable for maintenance. The quantum is decided by the discretion of the court considering vivid situations such as education of the applicant, professional qualification etc.
Chapter IX of the Code of Criminal Procedure is significantly essential for the protection of the rights of a divorced wife, children, and aged parents. Its existence plays an important role in preventing homelessness due to lack of fund for survival. Providing maintenance is a responsibility of the ones who have sufficient means for survival while the concerned party struggles for the same.
Relevant case laws:
1. Dr. Mrs. Vijaya Manohar Arbat vs. Kashirao Rajaram Sawai
An application under section 125(1)(d) of the Code of Criminal Procedure, 1973, was filed by a father claimed maintenance from his married daughter where the Supreme Court said that daughter is liable to pay maintenance to her parents.
2. Kirtikant D. Vadodaria vs. State of Gujarat and another (1996(4) SCC 479)
In this case supreme court said that step mothers are also entitled to claim maintenance.
3. Chanmuniya Vs. Virender Kumar Singh Kushwaha, JT 2010 (11) SC 132
In this case the supreme court said that proof of marriage should not be a pre-condition for maintenance, situation being a man and women have been living together as husband and wife for a reasonably long period of time.
THE CODE OF CRIMINAL PROCEDURE, 1973