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1
AMITY UNIVERSITY MADHYA PRADESH,
AMITY LAW SCHOOL,
GWALIOR
LAW OF CRIMES-II
Topic- ORDER FOR MAINTENACE OF WIVES, CHILDR...
2
Acknowledgement
In performing our assignment, we had to take the help and guideline of some respected persons,
who deser...
3
Topic
Chapter IX of Criminal procedure code, 1973
Order for Maintenance of Wives, Children and Parents
Section 125 to Se...
4
Table of Contents:
1) What is maintenance..................................................................................
5
What is Maintenance?
The whole concept of maintenance is that the spouse who is unable to maintain herself
financially a...
6
husband is alive. The grounds on which she can live separately are: 1) husband deserted her; 2)
husband treats her with ...
7
Maintenance under Criminal Procedure Code, 1973
Order for Maintenance of Wives, Children and Parents
Obligation of the h...
8
Maintenance of Wives:-
The term maintenance means an allowance that the husband gives to his wife, when they are
unable ...
9
Burden of proof of Marriage:
The burden to prove marriage lies on the wife. When a marriage is challenged on the grounds...
10
Living Separately by Mutual Consent
If the wife and the husband are living separately by mutual consent then the wife i...
11
A father is liable to maintain his child, legitimate or illegitimate. It has been made clear under
this code that only ...
12
the case, a major son of the well-educated and economically sound parents can claim educational
expenses from his fathe...
13
 Economic insecurity
 Physical illness
 Psycho-social problems
In order to provide proper justice to these people, I...
14
Bombay High Court in Pandurang Bhaurao Dabhade v. Baburao Bhaurao Dabhade, 1980 CrLJ
256 : 1979 Bom CR 573 : 1979 Mah L...
15
means or income of her husband, and father or mother are unable to maintain himself or herself.
This decision is good f...
16
Clause (b) and (c) of sub-section (1) of section 126 of Cr.P.C., gives benefits only to wife and the
children to initia...
17
3. The Court in dealing with applications under section 125 shall have power to make such
order as to costs as may be j...
18
(2) Where it appears to the Magistrate that, in consequence of any decision of a competent Civil
Court, any order made ...
19
A petition under section 127 CrPC cannot be for the purpose of re-agitating the plea of divorce.
Moreover, a plain read...
20
Section 128 is only a supplementary or an alternative remedy to the provision of enforcement
under section 125(3). The ...
21
Bibliography
1) The Code of Criminal Procedure, by S.C. Sarkar, 10th Edition, volume 1 sections 1 to
224.
2) The Code o...
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maintenance of wives, children and parents

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maintenance of wives, children and parents

  1. 1. 1 AMITY UNIVERSITY MADHYA PRADESH, AMITY LAW SCHOOL, GWALIOR LAW OF CRIMES-II Topic- ORDER FOR MAINTENACE OF WIVES, CHILDREN AND PARENTS Submitted To: Submitted By: Ms. Ruchi Mody Raj Kishor (B.A. LLB (H.)) Assistant Professor Nupur Rathore (B.A. LLB (H.)) ALS Yogricha Verma (B.Com. LLB(H.)) Shreeja Sudhakaran(B.Com. LLB (H.)) Semester – IVth
  2. 2. 2 Acknowledgement In performing our assignment, we had to take the help and guideline of some respected persons, who deserve our greatest gratitude. The completion of this assignment gives us much Pleasure. We would like to show our gratitude Ms. Ruchi Mody, Asst. Prof., Amity University, for giving us a good guideline for assignment throughout numerous consultations. We would also like to expand our deepest gratitude to all those who have directly and indirectly guided us in writing this assignment. Many people, especially our classmates and team members itself, have made valuable comment and suggestions on this proposal which gave us an inspiration to improve our assignment. We thank all the people for their help directly and indirectly to complete our assignment.
  3. 3. 3 Topic Chapter IX of Criminal procedure code, 1973 Order for Maintenance of Wives, Children and Parents Section 125 to Section 128
  4. 4. 4 Table of Contents: 1) What is maintenance..........................................................................................................5 2) Maintenance under other laws.........................................................................................5 3) Maintenance under Criminal Procedure Code, 1973........................................................7 4) Maintenance of Wives......................................................................................................8 5) Maintenance of children..................................................................................................10 6) Maintenance of Parents..................................................................................................12 7) Maintenance of parents in other laws.............................................................................16 8) Section 126......................................................................................................................16 9) Section 127......................................................................................................................17 10) Section 128....................................................................................................................19 11) Conclusion.....................................................................................................................20 12) Bibliography......................................................................................................................21
  5. 5. 5 What is Maintenance? The whole concept of maintenance is that the spouse who is unable to maintain herself financially and is not financially independent than the other spouse should be financially supported by the spouse who is financially sound and can take care of his financial needs. In case of divorce the main objective behind the payment of maintenance is that the spouses should continue living in the same condition as they were living before. Any one of the spouse should not face any financial crises. Maintenance not only includes the basic necessities such as clothing food, residence etc, but it also includes that the status and the comfort of the person should be met. The person should continue living in the same status and condition as before the divorce. Maintenance not only confines to the needs of the spouse, but it also extends to any children the couple had before having a divorce or before being separated. The expenses and the requirements of the children are to be fulfilled even after the divorce of the spouses. The spouse with sound financial condition has an obligation to take care of the children if the other spouse has no financial support and is dependent on the maintenance provided by the divorced spouse. MAINTENANCE UNDER OTHER LAWS:  Maintenance under Hindu Law: Right of maintenance under Hindu Law is and old concept since the evolution of joint Hindu Family. It is the obligation of the “Karta” to take care of the women of the family, i.e. their wives and daughters until they are married and the elderly women of the house. Remarriage or unchastity on the part of the women discontinues the right of getting maintenance. The amount of maintenance depends on the status of the family, necessities, wants and age. Section 24 of the Hindu Marriage Act, (HMA) 1955 provides for maintenance. This speaks about the maintenance of not only wife but also husband, who has no sufficient income to take care of him or herself. And the respondent is also to pay the expenses of the proceedings and provide the maintenance even during the proceedings.  Maintenance without Divorce: The Hindu adoptions and Maintenance Act, 1956, a wife is entitled to get maintenance from her husband for her lifetime which means that she will get maintenance until she is alive or her
  6. 6. 6 husband is alive. The grounds on which she can live separately are: 1) husband deserted her; 2) husband treats her with cruelty, 3) he is suffering from any sort of leprosy; 4) husband has any other living wife; 5) husband keeps a concubine elsewhere; 6) husband has converted into any other religion; 7) if there is other cause justifying living separately. But the wife will not be given maintenance, if she loses the path of chastity. The relief of maintenance is considered as ancillary relief. It is available only upon the filing of divorce, restitution of conjugal rights or judicial separation. A Hindu wife is entitled to live separately from her husband without forfeiting her right to maintenance under Hindu adoptions and Maintenance Act, 1956.  Maintenance under Muslim law: Under the Women (Protection Of- Rights On Divorce) Act, 1986 spells out the objective of the Acts as “protection of the rights of Muslim women who have been divorced by, or have obtained divorce from, their husbands.” Under Muslim law males are superior to women. And the law believes that males can take care of themselves but females cannot, hence it is the duty of the husband to take care of his wife, regardless of the fact whether she is poor or not. In Muslim law women is preferred all above other persons, relations children etc. Nonetheless, wife does not lose the right of maintenance even if the marriage is not consummated, but if the wife is too young to have sexual intercourse and lives with the parents, she does not possess any right for maintenance. Wife can claim maintenance on the event of ill treatment. The wife also gets privilege of being entitled to a special allowance called Kharch-i- pandan, guzara under such agreement. Wife can claim maintenance on the non payment of Dower. But the wife cannot claim maintenance during widowhood or iddat because of her entitlement to inheritance.  Maintenance for Christian Women: A Christian woman can claim maintenance form her husband, by a criminal or civil proceeding. If a Christian woman cannot take care of herself in her Post divorce period than she can cliam maintenance from her husband. Under Section 34 of Indian Divorce Act, 1869, she can apply for maintenance or alimony and her husband will be bound to pay her the same. The same is under Parsi law and same considerations for granting maintenance.
  7. 7. 7 Maintenance under Criminal Procedure Code, 1973 Order for Maintenance of Wives, Children and Parents Obligation of the husband to maintain his wife arises out of the status of marriage, and it is a form of personal law. The right of maintenance not only extends to wife, but also to the dependent children and the indigent parents who are unable to take care of themselves and also divorced wives. But the claim of maintenance depends on the husband having sufficient means or not. The most important factor of maintenance is that the party who is relying on maintenance should not have any other source of income and is not dependent on anyone else. The person should not have any independent source of income. The person who is claiming maintenance can claim even if he has a movable or immovable property, but the property should not yield any income. If any of the property of the claimant is able to yield income than he/she cannot claim maintenance. The amount of maintenance is not specified under any law, it merely depends on the discretion of the court and the financial condition of the maintainer and the status and comfort of the receiver of maintenance. Section 125 of Criminal Procedure Code, 1973 says that “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, 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,.....” The first clause 1 (a) talks about the maintenance of the wife.
  8. 8. 8 Maintenance of Wives:- The term maintenance means an allowance that the husband gives to his wife, when they are unable to maintain themselves, as an obligation and a natural duty to maintain. The Objectives of maintenance: 1) To prevent immorality 2) Destitution 3) Ameliorate the condition and women who are unable to maintain themselves. It is the sacrosanct duty of the husband to provide maintenance to their wives. Section 125 of Criminal Procedure Code, 1973 is fully consistent with Article 15 (3) of the Constitution (Special Provision for Women). Article 39 also requires the State to direct the policy towards securing that the citizens, men and women equally have the right to adequate means of livelihood. The right to maintenance conferred by Section 125 of Criminal Procedure Code, 1973 can be enforced not only under this section but also by a civil suit. A right under this section does not survive the death of the defendant but the personal law may be enforced also against the estate of the deceased. The section contemplates a monthly allowance to be paid to wives after divorce for a normal basic livelihood, living separately from the payer. There is no bar to an application under section 125 of Criminal Procedure Code,1973 even if there is an existence of an agreement to pay maintenance enforceable by a civil Court. In Hanamant Basappa V. Smt. Laxmmmara (2002 Cr. LJ 4397 (Ker), when the wife agreed with the husband that she would give up her claim for maintenance on receipt of a lump sum amount of Rs. 9,000 as full and final settlement of maintenance, it was held that the agreement would tantamount not only to giving recognition to something which is opposed to public policy but also would amount to negation of it. For the Maintenance the husband should have sufficient means. The word ‘means’ does not signify only the movable or immovable property in shape of an income, revenue and monthly salary etc. It also includes capacity of earning. A husband aged 16 years of age reading in class VIII, supported by his father has no means as in the case Chhedi Lal Singh V. Smt. Bhanu Mati (1973 ALJ 383). Even a lunatic wife is entitled for maintenance.
  9. 9. 9 Burden of proof of Marriage: The burden to prove marriage lies on the wife. When a marriage is challenged on the grounds that certain rights and formalities have not been fulfilled, the burden lies on the person challenging the validity to prove that the marriage is illegal. If a man and a woman have been cohabiting for a long period of time, it may be presumed that they are married spouses. Continuous cohabitation for a long time as a married couple and their conduct as a husband and wife may give rise to a presumption that they have been legally married. But such presumption can be rebutted [Gokul Chand V. Parvin Kumari(AIR 1952 SC 231)]. The law presumes in favour of marriage when a man and a woman have cohabited for long. Section 125 is only meant to remove the vagrancy and starvation and, therefore, an offer under this section is only to provide her with food, clothing and lodging. The offer need not be to keep the applicant as wife. A wife cannot claim sexual fidelity from husband. The offer of the husband should be to keep the wife with him and not in another village. The wife shall be entitled to the arrears of maintenance of the period from the date of the order till a genuine offer. It also empowers a wife to refuse to stay with the husband on just grounds and claim maintenance. Living in adultery “Adultery” means continuous adulterous conduct. It must be shown that the wife was actually living in adultery with someone else. The courts are not justified in suspecting the chastity of a woman just on the fact stated by the man. The principle is that the husband has been absolved from the liability to maintain his wife only when his wife has a de facto protector whom she loves and by whom she is being maintained as if she were his wife. It must be borne in mind that to lose her right of maintenance she must be living in adultery on the date of application and not in the past. If the women lives in adultery after the order is passed under subsection (1), she is entitled for maintenance up to the date when she begins to live in adultery [Ram Kishore V. Bimbal Devi (AIR 1957 All 658)].
  10. 10. 10 Living Separately by Mutual Consent If the wife and the husband are living separately by mutual consent then the wife is not entitled to receive maintenance allowance from the husband. A mutual consent in this context means an outcome which is derived from both the parties. The consent should be voluntary and should not be obtained under undue influence, fraud or misrepresentation. When the husband gets a divorce decree and the wife lives separately, this does not come under living separately by mutual consent. In Md. Ahmad Khan V. Shah Bano Begum(AIR 1985 SC 956), the Supreme Court took the view that section 125 was applicable to all the persons whatever religion they belonged. However the effect of this judgement was done away by the parliament, due to bitter opposition by Muslims, by the enactment of Muslim Women’s (Protection of Rights on Divorce) Act, 1986. Section 5 whereof restricted the rights of the women to resort to remedy under section 125 of Criminal Procedure Code, 1973 only on the consent of their husbands. The Muslim Women divorced by their husbands cannot claim maintenance 125-128 without the consent of her husband. Maintenance of children Clause 1 (b) of section 125 of Criminal Procedure Code, 1973 talks about the maintenance of children. Child maintenance is about providing help with a child's everyday living costs. This includes things like food and clothes, and helping to provide a home for your child or children. Child maintenance is usually money that the parent without the main day-to-day care of a child pays to the other parent. However, sharing the care of your children and buying things directly for them can also be included in a family-based child maintenance arrangement, if both parents agree to it. It's essential that both parents work together to agree what's right for them and their children. A son legitimate or illegitimate is considered to be dependent so long as he remains minor Minor: Minor means a person who, under the provisions of the Indian Majority Act, 1975 (9 of 1875) is deemed not to have attained his majority.
  11. 11. 11 A father is liable to maintain his child, legitimate or illegitimate. It has been made clear under this code that only minor children unable to maintain themselves will get the benefits of maintenance. In Shahbuddin v. State of U.P., 2006 CrLJ (NOC) 57, A minor daughter attaining majority during the pendency of application for maintenance was held entitled to maintenance up to the date of majority. The basis for an application for the maintenance of a child is the paternity of the child irrespective of its legitimacy or illegitimacy. In Punnakkal Sreedharan vs. Vellali Padmini, {1992 Cr LJ 3562 (Ker.)}, A man and a woman were held not be legally married, but s child was born out of their company, it was held that the illegitimate child was entitled to maintenance. If the paternity is not established he is not entitled to maintenance. If a mother is not the wife of the father, the child of such a father, who is custody of his mother, is entitled to maintenance. A divorced wife entitle to the custody of a children can recover their maintenance. A father is bound to maintain his child even though the child is living with its mother who refuses to return to her husband under a decree for restitution of conjugal rights. In Chaya v. K.G. Channappa Gowda {1993 Cr LJ 767 (Kant)}, an unmarried woman had sexual intercourse with a man, resulting in the birth of a girl. Maintenance was claimed on her behalf from the man. He denied having any liaison with the woman. There was no allegation that the woman was of easy virtue. It came in evidence that a Panchayat was held, which had order the man to pay Rs. 500 and 2 quintals of paddy which was admitted by the man. This very fact was held to be sufficient corroboration of evidence of the woman. The girl was held to be entitled to maintenance from the alleged father. Maintenance of Major Child either Legitimate or Illegitimate. In the case of Jayvardhan Sinh Chapotkat vs. Ajayveer Chapotkat MANU/MH/2581/2014 [Bombay High Court] it is held that A major son may not be entitled for maintenance under the Hindu Marriage Act. In the present case, the Petitioner has made out a specific claim for educational expenses which can be availed by him after attaining the age of 18 years. The son/claimant would attain majority as far as age is concerned, however, it would not be the proper age for becoming economically independent so as to earn his living. In the given facts of
  12. 12. 12 the case, a major son of the well-educated and economically sound parents can claim educational expenses from his father or mother irrespective of the fact that he has attained majority. It is not maintenance in strict sense as contemplated under Section 125 of the Code of Criminal Procedure or maintenance as contemplated under Section under Hindu Marriage Act. Clause 1 (c) of Section 125 of Code of Criminal Procedure 1973, talks about the maintenance of the child how is physically or mentally disabled and is unable to maintenance himself. Maintenance of Illegitimate Child: In Baleshwar mandal V. Anup Mandal, 2006 CrLJ (NOC) 273 (Jhar), the maintenance of child was claimed on the ground that the child was born as a result of rape on her by respondent. The plea of respondent that in FIR, the petitioner had stated that after rape she continued to have relationship with respondent, but gave a different version before family court that the child was born on account on rape was not supported by evidence. The order granted maintenance was proper. Unmarried Daughter: An unmarried daughter can claim maintenance from her parents irrespective of religion to which she belongs even after attaining majority. In Alok Banerjee v. Atoshi Banerjee [2008 CrLJ (NOC) 689], a person is bound to maintain his minor child whether married or not. Clause 1 (d) of Section 125 of Code of Criminal Procedure 1973, talks about the maintenance of Parents who are unable to maintain themselves. Maintenance of Parents: When we talk about the word maintenance first thing which come into our mind is maintenance for wife or children. We only think that husband giving maintenance to his wife after their divorce or judicial separation by which wife can take care of herself and live her regular life as she was living before divorce with all enjoyment. Today children feel burdened to keep their parents with them. Even some of them leave their parents at old age home that is not ethical. The aged people face numerous problems. Some of them are:
  13. 13. 13  Economic insecurity  Physical illness  Psycho-social problems In order to provide proper justice to these people, Indian legal system has provided some relief by enacting new law for them named The Maintenance and Welfare of Parents and Senior Citizens Act, 2007. But with this, we have already law for maintenance for parents. Section 125 (1) (d) of Code of Criminal Procedure, 1973 is a provision in Indian legal system whereby a Magistrate can order children to make a payment of monthly allowance as maintenance to their parents (father as well as mother). Relevant extracts from a few landmark judgements of Supreme Court and Various High Courts of India are enumerated below:  Father or mother must be unable to maintain him or herself.  Fulfilment of parental obligation is not a pre-condition to claim maintenance.  Daughter is liable to pay maintenance to parents.  Adoptive mother can claim maintenance.  Step-mother can claim maintenance.  Application for maintenance to be filed where the son or daughter lives. 1. Father or mother must be unable to maintain him or herself: In the case, Pandurang Bhaurao Dabhade v. Baburao Bhaurao Dabhade, 1980 CrLJ 256 : 1979 Bom CR 573 : 1979 Mah LJ 729 (Bom) Bombay High Court has held that the father or mother can claim his or her maintenance under section 125 (1) (d) if he or she is unable to maintain himself or herself. But it is also necessary that if parents claim maintenance to their children, children must have sufficient means to maintain the father or mother and yet neglects or refuses to maintain the father or mother. The provisions in section 125 (1) (d) is a very special provision which enables the Magistrate to make an order against a son or daughter for payment of monthly allowance for the maintenance of the father or mother who is unable to maintain himself or herself. 2. Fulfillment of parental obligation is not a pre-condition to claim maintenance:
  14. 14. 14 Bombay High Court in Pandurang Bhaurao Dabhade v. Baburao Bhaurao Dabhade, 1980 CrLJ 256 : 1979 Bom CR 573 : 1979 Mah LJ 729 (Bom)concluded that claim of maintenance by father is not depend on the fact that in childhood of children father had not fulfilled his parental duties. In section 125 (1) there are not described that if parents will not fulfill their parental duties than they cannot claim maintenance. So in this case court mentioned that the father who was unable to maintain himself was entitled to maintenance from his son who was financially sound. In also, Mahendra Kumar Gaikwad v. Gulabbhai, (2001) Cri LJ 2111 (Bom) court has held that if parents had not discharged their duties properly towards children and if they are unable to maintain themselves, children must have fulfill maintenance. In this case, one of the arguments of the respondent son against the applicant mother was that the parents had not discharged their duties towards him properly and therefore they had forfeited their right to claim maintenance from him. However, the court, ordered him to pay maintenance. 3. Daughter is liable to pay maintenance to parents: Under the section 125 (1) parents can claim maintenance from daughter’s as well. But daughters in the process of escaping from their responsibilities towards their parents by arguing that the section uses only word “he” and not “he/she”. In the case M. Areefa Beevi v. K.M. Sahib (Dr.), (1983) CrLJ 412 : 1982 Ker LT 242 : ILR (1982) 2 Ker 49 (Ker) Kerala High Court held that section 2 (y) of CrPC says “ Words and expressions used herein and not defined but defined in the penal code have the meanings respectively assigned to them in that code”. Section 8 of the IPC reads: the pronoun “he” and its derivatives are used of any person, whether male or female. Therefore the expression “his father or mother” occurring in section 125 of the CrPC must be taken to have the meaning “her father and mother”. So this case clears that daughters are equally responsible to maintain their parents as sons are. Supreme Court in Vijaya Manohar Arbat (Dr.) v. Kashiram Rajaram Sawai, 1987 CrLJ 977 : 1987 (3) Crimes 348 : (1987) 1 SCJ 524 : AIR 1987 SC 1100 has held that parents can claim maintenance from daughters, even married daughters are bound to provide the maintenance to their parents. Before ordering maintenance in favor of parents against their married daughter, the court must be satisfied that the daughter has sufficient means of her own independently of the
  15. 15. 15 means or income of her husband, and father or mother are unable to maintain himself or herself. This decision is good for those parents who only have girl child and it increased the security of parents. 4. Adoptive mother can claim maintenance: In the case, Baban v. Parvatibai Dagadu Dange, 1978 CrLJ1436 : 1978 Mah LJ 604 : 1978 (2) Mah LR 365 (Bom) the court had the opportunity to analyse the situation in detail. Parvatibai adopted a son after her husband’s death. She filed a claim for maintenance against her adopted son. This case mainly contested on was that was not his real mother and an adoptive son. His council argued on a fact that General Clauses Act defines father and son to include adoptive father and adoptive son but this was not done in the case of mother. Court did not satisfied with this argument and held that upon adoption of a son, he occupies the position of natural born son in the family. So his adoptive becomes his father and the adoptive mother becomes his mother for all purposes. So court ordered to pay the maintenance. 5. Step-mother can claim maintenance: In the case, Kirtikant D. Vadodaria v. State of Gujarat, 1996 (4) SCC 479 Supreme Court has held that a childless step-mother may claim maintenance from her step-son if she is widow. If her husband is alive, but incapable of maintaining her than also she can claim the maintenance. In Ramabai, (1976) Mah LJ 565 court held that a step-mother cannot claim maintenance from her step-son. But Karnataka High Court in Ulleppa v. Gangabai, 2003 CrLJ2566 : AIR 2003 Kant HCR 1338 : ILR (Kant) 2003 (3) Kar 1946 : 2003 (6) Ind LD 138 : 2003 (5) Kant LJ 227 : 2003 (3) Rec Cr R 405 (Kant) has held that a step mother is entitled to maintenance when she proves that she is living alone and due to old age is unable to maintain herself. 6. Application for maintenance to be filed where the son / daughter lives: In the case, Vijay Kumar Prasad vs. State of Bihar, 2004 (5) SCC 196 : AIR 2004 SC 2123 Supreme Court has held that an application by the father or the mother claiming maintenance has to be filed where the person from whom maintenance is claimed.
  16. 16. 16 Clause (b) and (c) of sub-section (1) of section 126 of Cr.P.C., gives benefits only to wife and the children to initiate proceeding at the place where they reside. But this benefit is not given to parents. So an application of claiming the maintenance has to be filed at the place where the person resides from whom maintenance is claimed. Maintenance of parents in other laws:  The Maintenance and Welfare of Parents and Senior Citizens Bill, 2007 seeks to make it a legal obligation for children and heirs to provide maintenance to senior citizens. It also permits state governments to establish old age homes in every district. SECTION 126 OF THE CODE OF CRIMINAL PROCEDURE talks about the procedure under which the proceedings of maintenance may take place. The section says- “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 to such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made, or, when his personal attendance is dispensed with in the presence of his pleader, and shall be recorded in the manner prescribed for summons-cases: Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is willfully avoiding service, or willfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case Ex-parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper.
  17. 17. 17 3. The Court in dealing with applications under section 125 shall have power to make such order as to costs as may be just.” As per clause 1 of 126 section of criminal procedure code, 1973 the word “resides” technically means the domicile. A person resides means that a person makes an abode permanently or temporarily. It is necessary that the proceedings take place in the presence of the person against whom the payment of maintenance is proposed. But if the person is avoiding the proceedings willfully then an ex-parte order may be passed. The proviso contemplates two contingencies. The first being, the ex parte order of maintenance could be passed, if the Magistrate is satisfied that the respondent is wilfully avoiding service, or wilfully neglecting to attend the Court, he may proceed to hear and determine the case ex parte. The second being, the Magistrate, if satisfied, on an application made within three months from the date of the ex parte order, filed by the respondent, that there is a good cause for his non-appearance, on the date on which he was set ex parte, could set aside the order. Moreover, once final order is passed, on the basis of the evidence under Section 126(2), Cr.P.C., by the Magistrate, it could not be set aside by the same Magistrate. The final order has to be challenged and reviewed only before the higher forum. But, in the instant case, the order of the Magistrate has been passed, based on the statement recorded from the wife, under the proviso to Section 126(2), Cr.P.C. This could be set aside by the very same Magistrate, on the application filed by the respondent, within three months from the date of order. Such being the position, we cannot equate the word "evidence" as contemplated in section 126(2), Cr.P.C., to the "recording of statement" from the party, in order to determine the case ex parte, as found in proviso to Section 126(2), Cr.P.C. SECTION 127 OF THE CODE OF CRIMINAL PROCEDURE talks about the “Alteration in allowance”. It says- “(1) On proof of a change in the circumstances of any person, receiving, under section 125 a monthly allowance, or ordered under the same section to pay a monthly allowance to his wife, child, father or mother, as case may be, the Magistrate may make such alteration in the allowance he thinks fit: Provided that if he increases the allowance, the monthly rate of five hundred rupees in the whole shall not be exceeded.
  18. 18. 18 (2) Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made under section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly. (3) Where any order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that- (a) the woman has, after the date of such divorce, remarried, cancel such order as from the date of her remarriage; (b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order,- (i) in the case where, such sum was paid before such order, from the date on Which such order was made, (ii) in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband by the woman; (c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance after her divorce, cancel the order from the date thereof. (4) At the time of making any decree for the recovery of any maintenance or dowry by any person, to whom a monthly allowance has been ordered to be paid under section 125, the Civil Court shall take into account the sum which has been paid to, or recovered by, such person as monthly allowance in pursuance of the said order.” Section 127 empowers the magistrate to alter or modify the order of maintenance on account of (i) a change in the circumstances of the party paying or receiving the maintenance, or (ii) any decision of a competent civil court. The party entitled to alteration of the order can always move the magistrate when there is a change of the circumstances (Shanno Devi, 53 CrLJ 473; Masammat Lilawanti V. Madan Gopal, (1936) 37 CrLJ 68 ).
  19. 19. 19 A petition under section 127 CrPC cannot be for the purpose of re-agitating the plea of divorce. Moreover, a plain reading of Section 127 CrPC will at once make it clear, that for applicability of this section, there must be change in the circumstances after granting for the maintenance. Cancellation or Modification: The order under section 125 can be modified under this section. Under this section the wife may file for increase of the maintenance in the same way the opposite party can also apply for the reduction or cancellation of the cancellation of the order on account of a civil Court decree, e.g. for restitution for conjugal rights, invalidity of marriage, divorce. An order of maintenance can be cancelled on the application of both the parties that they have compromised. If thereafter the wife is ill-treated she can file a fresh application for maintenance. Order of maintenance cannot be quashed on the ground that alimony has been granted to wife under Hindu Marriage Act. Where the wife has been living separately and in spite of decree for restitution of conjugal rights refuses cohabitation with husband without assisting reason, the court would be justified in cancelling the order of maintenance. Change of Financial Situation: Where the wife has become an earning member with salary more than 500 Rs. Per month application for cancellation order for the maintenance for change of circumstances should be entertained. SECTION 128 OF THE CODE OF CRIMINAL PROCEDURE talks about the “Enforcement of Order of Maintenance” it says “A copy of the order of maintenance or interim maintenance and expenses of proceeding, as the case may be shall be given without payment to the person in whose favour it is made, or to his guardian, if any, or to the person to whom the allowance for the maintenance or the allowance for the interim maintenance and expenses of proceeding, as the case may be is to be paid; and such order may be enforced by any Magistrate in any place where the person against whom it is made may be, on such Magistrate being satisfied as to the identity of the parties and the non- payment of the allowance or as the case may be expenses, due.”
  20. 20. 20 Section 128 is only a supplementary or an alternative remedy to the provision of enforcement under section 125(3). The court which passed the original order and his successor can enforce the order and besides these courts any Magistrate in any place where the person against whom the order is made may be, may enforce an order under this section. When the person against whom an order for allowance is made leaves the jurisdiction of the court passing the allowance order, an application may be made, under this section for enforcement of the order in the court of a magistrate of the place where the person is. In this section, any Magistrate can enforce the order whether he is a Magistrate of first class or second class, executive or judicial. This section does not make any provisions for awarding costs to any of the parties and so a Court cannot award costs under this section. Conclusion It is evident from the recent judicial decisions that the Indian courts have been progressively liberal in deciding cases pertaining to maintenance. The bone of contention however is whether a mistress can become entitled to receive maintenance merely from the factum of living with a married man, coupled with the dispute as to whether the bigamy is legally permissible. While it appears from the decisions passed under the personal laws that the same may be possible, judicial decisions pertaining to Section 125 continue to uphold the view that maintenance can be claimed only by a lawfully wedded wife.
  21. 21. 21 Bibliography 1) The Code of Criminal Procedure, by S.C. Sarkar, 10th Edition, volume 1 sections 1 to 224. 2) The Code of Criminal Procedure, by Batuklal, Second edition. 3) The Code of Criminal Procedure, Ratanlal Dhirajlal, by B.M. Prasad and Manish Mohan. 4) http://www.lawteacher.net/free-law-essays/family-law/maintenance-of-wife-under-hindu- law-essays.php 5) https://sites.google.com/site/divorcelawsinindia/maintenance-for-wife-childrens-and- parents-law-in-india 6) http://www.legalserviceindia.com/articles/hmcp.htm 7) http://www.lawteacher.net/free-law-essays/family-law/effectiveness-of-the-legal- provisions-law-essays.php#ixzz40vQ8uiwy 8) http://voice4india.org/2010/03/14/judgments-section-125-crpc-maintenance-of-parents/

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