Maintenance

Code of Criminal Procedure:

Section 125 of the Code of Criminal Procedure reads as follows:

(1) If any person having sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or
(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 has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself,

a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct :

This Section was introduced, to safeguard the wife, legitimate and illegitimate child (not being a married daughter) who has attained majority, where such child by reason of any physical or mental abnormality or injury unable to maintain itself or a person's father or mother unable to maintain himself or herself.

From the reading of the section it is clear that a person is bound to maintain his wife, children and aged parents, who are unable to maintain themselves. While ordering maintenance the Court has to consider the income and the status of the person who is liable to pay maintenance and also the income and status of the person claiming maintenance. Though a wife can file a suit for maintenance in a Civil Court, this Section is provided to get maintenance as early as possible. For a person, food, clothing and shelter is essential. While ordering maintenance, Court has to consider whether the wife is living separately on reasonable grounds. The wife can refuse to live with her husband if he lives with a mistress. No wife shall be entitled to receive maintenance from her husband under this Section if she is living in adultery, or husband and wife are living separately by mutual consent. The petitioner can file any number of petitions under Section 125 Cr.P.C for enhancement of
maintenance when the circumstances change. The Court after considering the change of circumstances can enhance the maintenance accordingly. Originally a magistrate can order Rupees 500 per month as maximum maintenance. After the recent amendment maintenance exceeding Rs.500 can be ordered according to the circumstances of each case.

Wives right to maintenance is not absolute under 125 of the Code. It is Circumscribed by the fact that she is unable to maintain herself and further the husband having sufficient means neglected or refused to maintain her. No doubt, there is a clear distinction between the locus standi or competence to file a petition for maintenance under Section 125 of The Code by any of the persons illustrated in the Section and their being entitled on merits to particular amounts of maintenance thereunder. However, the premises for both is essentially the existence or otherwise of their separate income or means of support besides other factors stipulated in the Section. K.M.Nagammalappa Vs. B.J.Lalitha, 1985 Cr.L.J 1706 (KANT) See also Hyma Krishnadass Vs. M.Krishnadass, 1985 (2) CRIMES 661 (KER), Habeebulla Vs. Shakella, 1984 Cr.L.J 1062.

Quantum of Maintenance

Right of Maintenance under Hindu Law is a substantive right and a continuing right and it is variable from time to time. The Family Court or the District Court may in satisfaction of change of circumstances modify, recind or enhance the maintenance allowance. On proof of change and circumstance, the family Court has jurisdiction under Section 127 Cr.P.C. to revise the earlier order passed under Section 125 of the Code. Uma Vs. Lalit Kumar Sharma (1999 (1) DMC 83). In Ekradeshwari Vs. Homeswar (AIR 1929 PC 128), the privy council held, that fixation of maintenance depends upon a number of factors and the same must be determined on the facts of a particular case. The said ruling was rendered prior to the enactment of Hindu Adoption and Maintenance Act 1956.

The Apex Court in Kulbhusan Vs. Rajkumari (AIR 1971 SC 234) approved the said observation by the Privy Council under Section 23(2) of the said Act. See also K.Sivakumar Vs. K.Sambasiva Rao (2001 (1) DMC 75) and G.C.Gosh Vs.Sushmita Gosh (2001 (1) DMC 469). The wife is entitled to have the same status as her husband. She must have the necessary medical facility, food, clothing etc.. While fixing the amount of maintenance, the Court should also take into account considering the inflation and cost of living and his obligation to support the minor child and his parents. S.Jayanthi Vs.S.Jayaraman (1998(1) DMC 699).

There is no fixed Rule, while arriving at the Quantum, in respect of permanent Alimony. It is only the independent income of the payee which is to be considered. While granting relief of permanent alimony, the court has to keep in view the following considerations:

i) Husband's own income.
ii) Income of the Husband from other property;
iii) Income of the Applicant.
iv) Conduct of parties.

Ramlal Vs. Surender Kaur (1995 (1) (iv) L.J 204 (Punjab)

In Vanaja Vs. Gopa (1992 (1) DMC 347) the High Court Madras has held that the fact that the wife has already got maintenance under Section 125 Cr.P.C. is no bar to her getting alimony pendante lite under Section 24 of the Hindu Marriage Act.

Enforcement:

After ordering maintenance if the respondent husband fails or refuses to pay the maintenance without sufficient cause the magistrate can issue warrant for levying the amount due in the manner provided for levying fines and may also sentence such person for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made. Provided that no warrant shall be issued for the recovery of any amount due under this Section unless applications made to the Court to levy such amount within a period of one year it became due. Proceedings under Section 125 Cr.P.C is considered to be of a civil nature. Though they are wholly governed by the procedure of the code of criminal procedure, they are really of civil nature, but are dealt with summarily in a Criminal Court for the purpose of speedy disposal on grounds of convenience and social order. Pandharinadh Sakharam Thuve Vs. Surekha Pandharinadh Thuve, 1999 Cr.L.J 2919 (BOM). It is to be borne in mind that a petition filed under Section 125 Cr.P.C is not a complaint and the person arrayed as the opposite party is not an accused. Following the decision of the Supreme Court in AIR 1963 SC 1521, which held that instant proceedings under 125 Cr.P.C is a proceedings of a civil nature in which the Magistrate can invoke the inherent powers to recall his earlier order finally disposing a proceedings of this nature, provided, sufficient grounds are shown. SK.Alauddin Vs. Khadizebb, 1991 Cr.L.J 2035.

Hindu Law Text enjoins upon the husband a mandatory duty to maintain his wife. The duty to maintain is dehors his possession of any property. A decree for maintenance creates a charge on his property. IN Raghavan Vs. Nagammal (AIR 1979 Mad 200) the High Court of Madras held that an order of maintenance, in term of Section 39 of the Transfer of property Act, creates a charge on the property Act. This principle was extended to an order passed under Section 125 Cr.P.C. in Diwakaran Vs. Barghavy Chellamma (1985 (2) DMC 486).

Apart From the above, Section 125 (3) of the Cr. P.C. r/w Section 128 of the Cr.P.C. empowers the Magistrate to enforce the execution in case of default by the person ordered to pay maintenance. Section 51 of the C.P,.C. can also be utilised for enforcing the order of maintenance.

Validity of Marriage

Validity of the marriage for the purpose of summary proceedings under Section 125 Cr.P.C is to be determined on the basis of the evidence brought on record by the parties. The standard of proof of a marriage in such proceedings is not as strict as is required in a trial of offences under Section 494 IPC. If the claimant in proceedings under Section 125 of The Code succeeds in showing that she and the respondent have lived together as husband and wife the Court can presume that they are legally wedded spouses, and in such a situation the party who denies the marital status can rebut the presumption. Undisputedly marriage procedure followed in the temple, that too, in the presence of the idol of Lord Jaganath, which is worshiped by both the parties is considered to be valid. Once it is admitted that the marriage procedure was followed then it is not necessary to further probe in to whether the said procedure was complete as per the Hindu rites in the proceedings under Section 125 Cr.P.C. Dwarika Prasad Satpathi Vs. Bityut Prava Dixit, (1999) 7 SCC 675 = 1999 (4) CRIMES 206 = 2000 Cr.L.J 1, See also Raju Vs. Pushpa Devi, 1999 Cr.L.J 2294.

The High Court of Bombay in K.M. Vyas Vs. R.K.Vyas (AIR 1999 Bom 127) held that the second wife is entitled to get maintenance under Section 24 of the Hindu Marriage Act even if the Second Marriage of the husband is void. In Devinder Singh Vs. Jaspal Kaur (1999 (1) MDM (535) the Punjab and Hariyana High Court held that the Right to claim maintenance under Section 25 of the Hindu Marriage Act is not defeated even where the marriage is dissolved by a Decree of Nullity. In Malika Vs. P.Kulandai (2001 (1) DMC 354) the court held that when the husband contracted the Second marriage by suppressing the fact of the first marriage, the wife and child are entitled to maintenance under Section 125 of the Cr.P.C.

Recent Trends:-

The Apex Court in Komalam Amma Vs. Kumarapillai (2008(14)SCC 345) held that the Hindu Wife is entitled to be maintained by her husband. She is entitled to remain under his roof and protection. She is also entitled to separate residence,if by reason of the husband's conduct or by his refusal to maintain her in his own place of residence or other just cause she is compelled to live apart from him. Right to Residence is part and parcel of wife's right to maintenance. The Right to Maintenance cannot be defeated by the husband executing a will to defeat such right..... For the purpose of maintenance the term "Wife" includes Divorced Wife.

The said court in Sipra Bhattacharyya's case (2009 (4) SCC 366), has held that the tiral court is duty bound to dispose of the Appliction for maintenance before the suit for Divorce is decided and that too within a time frame. In Rajesh Varman's case (2009 (1) SCC 398) the said court held that the term maintenance and support are comprehensive in nature and of wide amplitude and they would take within their sweep medical expenses. However, in Vimalaben Ajithbai Patel's case (2008 (4)
SCC 649) the court held that the mother-in-law cannot be fastened with any legal liability to maintain her daughterin- law from her own property or otherwise. A wife is only entitled to maintenance from her husband.

The recent trend feathering the concept of "live-in" and same sex relationships has created the need to extend maintenance in such relationship also. In Western Countries unmarried relationships and same sex relationships have been recognized by statutes and judicial notice has been taken by courts. The dependent partner in such relationship have been held entitled to support which is termed as "Palimony". The said concept of unmarried relationship is gaining momentum amongst the youth in India also. Consequently, it would be essential to protect the dependent partner if the relationship is broken.