General Clauses Act qualifies adoptive as the court extended the benefit to the adoptive mother too. Regarding step-mother the Supreme Court in KirtikantVadodaria V State of Gujrat has ruled that the benefit be extended to her too, if she has no natural offspring or husband living or that they are incapable of maintaining.
The apex court has made the daughters duty-bound in view of the fact that the number of parents who have no male issue is on the increase. Besides the female are catching up with the male in all walks of life.
ShravanNathuKannor V. AnjandasShravanKannor, 1985, Bombay H.C.
Karnail Singh V. Gurdial Singh 1974, Punjab & Haryana H.C.
AN ASSESSMENT OF LAW ON MAINTENANCE. As a Legal Instrument Financially Protecting the Aggrieved Persons from Domestic Violence. 1
Maintenance: of whom ? • Law of Maintenance is aimed at checking starvation and vagrancy and the consequent crimes.• A legally married wife, a child, legitimate or illegitimate and father or mother– unable to maintain himself or herself.• Wife includes divorced women to frustrate unscrupulous husbands from getting easy divorce through their personal law.• The context leading to emergence of Muslim Women(Protection of Rights on Divorce) Act, 1986.• The Act of 1986 vis-à-vis S. 125 of CRPC in reference to Daniel Latifi V Union of India,2001.• S. 125 is vague as to whether a parent includes adoptive/step parent. 2
Maintenance by Whom ?• Patriarchal social structure has not only extended exclusive privileges to men but it has also given him exclusive responsibilities. • S.125 prescribes the husband, father and son to maintain his wife, children and parents, respectively. • The rationale behind may be to protect and maintain the weaker. • Consider the position of law regarding responsibility of the mother in a situation where the father is not living… • Similarly the position of law on the responsibility of a wife to protect and maintain her weaker husband. • Supreme Court making daughter duty-bound to maintain her parents. (Vijaya Manohar Arbat V. Kashirao Rajaram Sawai.) • Efforts of the apex court to bridge the gap between law and social need contributing to the organic growth of a piece of Legislation. 3
Criteria for granting Maintenance.I• Sufficient means, both visible and latent, to maintain.• The neglect and refusal to maintain, with the burden of proof shifting to the claimant.• In a valid second marriage under personal law, the wife of first marriage is eligible for maintenance from her husband, though living separately.• Person claiming maintenance must be incapable of maintaining him/herself.(Abdul Munaf V. Salima, 1979. Cant, H.C.) 4
Criteria for granting Maintenance.II.• The Requirements where the Maintenance is claimed by Wife.• S.125(4) prescribes that the wife must not be living in adultery( a single act of adultery is not suffice to disentitle).• The right of a divorced wife while she is having live-in relationship with another man.• Wife must not refuse, without sufficient reasons, to live with her husband.(Having a mistress, contracted a new marriage, married legally under personal law).• The wife not living separately by mutual consent. 5
Procedure. • Jurisdiction and Procedure.• Only the Judicial Magistrate of I Class can entertain applications for maintenance under S 125.• Averment by applicant that she has no sufficient means and that he has sufficient means.• That there is neglect and refusal to maintain the applicant.• No period of limitation to file the application.• Ex-parte order on wilful avoiding service, wilful neglect to attend court. 6
The order of Maintenance and its Enforcement.• The amount to be neither luxurious nor penurious but modestly consistent with the status of the family.• The removal of ceiling of Rs 500/- per month and the fixing of time-frame through Amendment Act, 2001• Warrant is issued on every breach of the order for levying the amount.• The imprisonment of one month is a last resort when recourse to attachment and sale fail.• The imprisonment is to pressurize enforcement and not a mode to satisfy the liability. 7
Alteration of Order.• The quantum of allowance may be altered:• On proof of a change in the circumstances of either party.• On any relevant decision of a competent civil court• The date of effect of alteration is left to the discretion of the court. 8
Cancellation of Order .• The order of maintenance may be cancelled, if:• The wife is living in adultery.• Without sufficient reasons she refuses to live with the husband.• they are living separately by mutual consent.• On a decision of a competent civil court.• she remarries after divorce, the order is cancelled w.e.f. the date of remarriage.• On complete compliance with the order. 9
Milestones beyond S. 125 of CRPC. • Conclusion.• Mohd. Ahmed Khan V. Shah Bano Begum, 1985. and the inclusive definition of Wife:The legislative response.• The response of the Judiciary to the legislative response: Daniel Latifi V. Union of India, 2001.• Supreme Court on the path of son-daughter parity: V.M Arhat V. K.R. Sawai, 1987. 10