Maintenance Under Section 125 Of CrPC

Published on 14 Sep 2018 by Shreya

Maintenance is an essential factor that is taken into consideration by the Courts while deciding on Divorce Proceedings in India. The Hon’ble Supreme Court, in a recent case, has stated that the Family Courts must not delay the grant of maintenance to a wife estranged from her husband and that the husband cannot shy away from the responsibility of sustaining the wife irrespective of the status of their relationship. The Court went on to state that a delay in such adjudication by the Court is against human rights and also against the basic dignity of an individual.  

Section 125 of CrPC

Section 125 of the Code of Criminal Procedure is an economic umbrella that makes provisions for maintenance to be provided to divorced wives to help them to maintain and support themselves both during and at the conclusion of Divorce Proceedings. The essential object of the provision of law is to help improve the economic condition and alleviate the status of divorced and neglected wives who are unable to support themselves. Section 125 is a secular provision governing maintenance laws across all personal laws. No conflict may arise between the provisions in any personal laws and the CrPC since the provision works parallel to all personal laws. The Supreme Court has held that the maintenance rights of a wife cannot be limited by personal laws. Maintenance provision under Section 125 is not treated as a means to punish the husband but as a means to ensure support for the estranged woman who is unable to support herself.

Under Section 24 of the Hindu Marriage Act, 1955, the wife may also claim interim maintenance so as to enable the spouse to maintain herself and have sufficient funds to continue with the litigation. The factors that are taken into consideration by the Courts for granting interim maintenance have been reiterated by the Delhi High Court in the case of Manpreet Singh Bhatia vs Sumita Bhatia:

  • The reasonable needs of the spouse claiming maintenance
  • The status of the parties
  • The independent income and property possessed by the spouse claiming maintenance
  • The number of persons the spouse providing maintenance has to maintain apart from the claimant
  • The lifestyle that spouse claiming maintenance used to enjoy in her matrimonial home
  • The liabilities of the spouse providing maintenance
  • The provisions of the basic necessities of the spouse claiming maintenance such as food, shelter, clothing, medical needs, etc.
  • The payment capability of the spouse providing maintenance
  • The Court may use its discretion when all specific sources of income of the spouse providing maintenance are undisclosed
  • The spouse paying maintenance must discharge the cost of litigation of the divorce proceedings
  • The amount awarded under Section 125 is adjustable against the amount awarded under Section 24 of the Hindu Marriage Act, 1955. The Delhi High Court further stated that the Court must grant interim maintenance in appropriate cases as a discharge of judicial duty so as to ensure that the indigent spouse doesn’t suffer at the hands of the affluent spouse.

Read: Maintenance under Hindu Laws

Under Section 125 of the CrPC, if any person having a sufficient income and means refuses to maintain the wife who is incapable of maintaining herself sufficiently and brings about an application for the same, the Magistrate hearing the Divorce case upon being made aware of such refusal or neglect must award a monthly allowance for maintenance for the wife. The Magistrate may award any amount that s/he deems fit to be paid monthly or in such time intervals as directed by the Magistrate. The onus is on the wife to prove that she must be granted such maintenance.

Under this provision, the definition of a wife has been interpreted by the Courts in various cases. ‘Wife’ includes any legally wedded woman who has obtained a divorced from her husband. If the wife has remarried, however, no maintenance may be claimed. Also, a second wife cannot claim maintenance under Hindu law unless the fact of the husband’s first marriage was not known to her at the time of the marriage. If she was aware, however, no maintenance may be paid owing to the second marriage not being recognized legally as being valid. Further, the Supreme Court in the case of Chanmuniya Vs. Chanmuniya Virendra Kumar Singh Kushwaha extended the scope of Section 125 to include partners who lived together for a long spell as husband and wife and where a presumption arises in favour of a valid wedlock, i.e., the woman who was living with a man for a long period of time as his wife.

Also Read: Right to Maintenance of Second Wife in India

Applicability of Section 125 On Muslim Marriage

Section 125 also extends the rights of Muslim women to receive maintenance from her husband. Under the Muslim laws, a Muslim wife must be provided maintenance only for the period of Iddat and not beyond it. Section 125, however, extends its provision to Muslim women extending their right to maintenance up to remarriage. In the landmark Shah Bano Begum case, the Hon’ble Supreme Court held that a Muslim husband possessing sufficient means must provide maintenance to the divorced wife who is unable to provide for herself till the time of her remarriage. The Court further held that the divorced wife is entitled to such maintenance even when she refuses to live with her husband when she has refused to live with him owing to the fact that he has remarried.

Also Read: Maintenance under Muslim Laws in India

When Section 125 CrPC Is Not Applicable

Section 125 also makes provision for such circumstances in which the wife is no longer eligible to receive the maintenance amount:

  • When the wife is living in adultery
  • When the wife has refused to live with her husband without sufficient means
  • When the husband and wife have separate and have decided to live separately by mutual consent
  • When the competent Court rules that no maintenance must be awarded  
  • When the wife remarries after the divorce, the maintenance amount stands cancelled from the date of such marriage

Section 125 of the CrPC provides for the man to pay maintenance to parties other than the wife as well. This includes children (both legitimate and illegitimate) and parents who are unable to support and maintain themselves. Maintenance may be provided to minor children as well as major children who are unable to support themselves on account of certain injury or physical or mental abnormality. Both the father and the mother (natural or adoptive), may also claim maintenance from any of their children including daughters. Section 125 also extends to step-mothers only when she doesn’t have any naturally born children and she has been divorced.

The condition that should be satisfied for the maintenance to be granted by the Court are:

  • The person claiming maintenance must be incapable of maintaining himself/herself
  • The person must have been neglected by the person liable to pay maintenance or must have refused to pay the same

A petition for maintenance may be filed by the wife in such Court having jurisdiction over the place at which she resides or where the husband resides or where they resided together last or where the husband is situated at that particular point of time. The parents may file the petition in the Court having jurisdiction over where they reside or where the child resides. A claim for maintenance can only be heard by a Judicial Magistrate of First Class who can allow monthly maintenance of such amount as deemed fit by the Magistrate. In case of Divorce by Mutual Consent, the couple generally decides upon such factors as maintenance, child custody, etc., before moving to Court. In such cases where the parties are unable to decide on such factors, the Court may take the abovementioned factors into account and use its discretion to decide.



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