What Section 125 of CrPC deals with?
Sec. 125 of Crpc (now sec. 144 of BNSS) provides monetary relief to persons who are unable to maintain themselves and are dependent on someone, usually husband, then they can claim maintenance under this section. The person who can claim monetary relief are:
- Wives - if she is not able to maintain herself. Here wife means a woman who is divorced and has not married.
- Children - child can be legitimate or illegitimate, married or unmarried
- Parents - father and mother of the person who are not able to maintain themselves.
If the person refuses to maintain any of the concerned people then the Magistrate of first class can pass an order to pay such an amount of monthly allowance to them as a way to maintain them.
What is Maintenance?
Maintenance is defined in section 3(b) of the Hindu Adoption and Maintenance Act, 1956 as financial assistance in the cases of food, clothing, residence, education, medical attendance and treatment and in the case of an unmarried daughter, the reasonable expenses to her marriage.
To successfully claim maintenance, some conditions need to be fulfilled:
- The person against whom maintenance is claimed has sufficient means to maintain himself and others and refuses to maintain.
- The person who claims it, must not be able to maintain himself or herself.
- The person claiming it, must not be refusing to live with the spouse without any reason, or not living in adultery or living separately with mutual consent.
- A married daughter can claim it, if she satisfies the court that her husband does not have sufficient means to maintain her.
What Amount of Maintenance can be claimed?
What amount of monetary allowance a person will get, it totally depends on the standard of living. If a person is coming from a rich family and has lived a luxurious life then she will get higher maintenance then the person coming from the middle class. There is no fixed amount of allowance which a person can claim. In Rajnesh v. Neha, the SC provided guidelines for determining maintenance and stressed on the need for a balance between the financial status of the parties and ensuring the dependent spouse is not left destitute.
In Bharat Hegde v. Saroj Hegde, the Delhi high court laid down factors to be considered while determining maintenance-
- Status of the parties.
- Reasonable wants of the claimant.
- The independent income and property of the claimant.
- The number of persons the non-applicant has to maintain.
- The amount should aid the applicant to live in a similar lifestyle as he/she enjoyed in the matrimonial home.
- Non-applicant’s liabilities, if any. Provisions for food, clothing, shelter, education, medical attendance and treatment, etc. of the applicant.
- Payment capacity of the non-applicant.
- Some guesswork is not ruled out while estimating the income of the non-applicant when all the sources or correct sources are not disclosed.
- The non-applicant to defray the cost of litigation
From when Maintenance can be claimed?
- Under sec 125(2), it can be claimed from the date on which the order is passed or from the date on which application for the maintenance is made, whichever case can be applied.
- The court may grant interim maintenance during the pending proceedings to provide immediate relief to the claimant.
- If the person fails to give maintenance even after the order then a warrant will be issued to pay such an allowance with fine and if again he fails to give maintenance then he can be imprisoned for 1 month.
How to claim Maintenance?
Sec. 126 of Crpc (Sec. 145 of BNSS) deals with the procedure of claiming it.
- A person can claim maintenance after filing of an application, giving valid reasons in it, in the -
- The district where the person is residing at the time of claiming it,
- The district where he and his wife resides,
- The district where he last resided with his wife or the mother of his illegitimate child.
- After filing, a notice of such application will be given to other party. Evidence for claiming the maintenance will be taken in presence of the person against whom the maintenance is claimed.
- If the person refuses to the summons willfully, then an ex-parte order for maintenance will be made by the court.
Can a Muslim woman claim maintenance under sec. 125 of CrPC?
- Muslim women are entitled to file for maintenance under sec, 125 of CrPC. It is a secular provision which is applicable to all womens regardless of their religious background.
- The Court clarified in a recent judgment, that the Muslim Women (Protection of Rights on Divorce) Act, 1986 provides additional remedies for divorced Muslim women and does not replace the remedy under Section 125 CrPC.
What if the husband is ready to give maintenance on the condition that the wife will live with him?
If such condition arises where the husband offers maintenance only on condition that wife will live with him and if wife refuses or do not want to live with him then in such a condition the court may take into account the reason given by the wife and can pass an order based on such reason if the court deems it fit.
Does Nullity of marriage bars a wife from claiming maintenance?
In the recent case, the court ruled that it is a settled position that even if a marriage is declared to be null and void by a competent court, it would not bar the wife from claiming maintenance.
Whether physical disability on the part of Husband exempts him from spousal maintenance under section 125?
The Madhya Pradesh High court held in a recent case, that a temporary disability does not absolve him of his maintenance obligations. In another case, the court also held that loans taken voluntarily after separation should not be considered while calculating the quantum of maintenance.
Changes can be made in Maintenance Order (Section 127 in Crpc and Sec. 146 in BNSS)
- If the court is satisfied that after the passing of the maintenance order, if some changes have occurred, then the Magistrate can make changes to the Maintenance order as in the amount of monthly allowance needed to be given.
- The magistrate can even cancel the order according to change in the circumstance -
- If it is found that the woman has remarried, then the maintenance order will be canceled.
- If she has voluntarily surrendered her rights to claim maintenance.
- If the woman has received a sum of amount before or after the passing of order.
Landmark Cases on Maintenance
In this case, the Supreme Court recognised the right of Muslim women to maintenance after the Iddat period since personal laws cannot supersede CrPC (now BNSS), which is applied to all citizens regardless of their faith, and laid down that a divorced Muslim woman who is not capable of maintaining herself is entitled to maintenance from her former husband until she gets remarried.
In this case, the court said that muslim husband’s liability under this act is not limited to only the iddat period. He has to make arrangements within the period of iddat for her wife’s maintenance. This case also upheld the constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986.
Frequently Asked Question (FAQs)
What is the difference between section 125 of Crpc and section 24 of Hindu Marriage act?
Section 24 of Hindu Marriage Act allows only Hindus to claim maintenance under it whereas section 125 is applicable to everyone regardless of their religion. Moreover, section 24 applies to the cases of pendency of litigation and not otherwise.
Can a wife claim if she is a working woman?
Yes, a working woman can also claim maintenance. Factors like her income, her standard of living are taken into account while determining the quantum of maintenance to be given to her.
What is the nature of proceeding under section 125?
The nature of proceeding is civil under this section.
References:
Written by Shalini Singh
Shalini is a law student who is passionate about international law and rights.
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