Maintenance of wife, children and parents India

Topic -Maintenance of wife, children and parents India

Author -Trisha Pal, a Student of JRSET COLLEGE of Law, University of Kalyani

     Scope and objective of proceedings :

Scope and objective of proceedings for maintenance of wife, children and parents are following –

• The proceedings are not punishable in nature. The main objective of chapter IX of CR.PC is not to punish a person who is not maintaining those whom he is bound to maintain.

• The main objective is to prevent homeless by way of procedure to provide a speedy remedy to those who are in pain.

• It does not make any distinction between persons belonging to different religions or castes.

Section 125 of CR.PC deals with “order of maintenance of wife, children and parents.” In this section, it is given the name of parties who are entitled to get maintenance, essential ingredients to claim and get maintenance and order of the first class magistrate.

   In the case of Mohd.Ahmed Khan v Shah Bano Begum, Supreme court delivered a judgement favouring maintenance given to an agreement divorce Muslim women.

       Section 125 of CR.PC deals with “order for maintenance of wife, children and parents.”. According to section 125(1), the following persons can claim and get maintenance: 

• Wife from his husband,

• Legitimate or illegal minor child (physical or mental abnormality) from his father, and

• Father or mother from his son or daughter.

In the case of Chanmuniya v Virendra Singh, Supreme court has defined ‘wife’ and it includes even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time. Strict proof of marriage should not be a precondition of maintenance under section 125 of the CR.PC.

  A wife can claim and get maintenance from her husband in the following condition:

• She is divided by her husband, or

• Obtained divorce from her husband, and

• She has not remarried, and

• She is not to maintain herself.

Note: Muslim wife can also claim maintenance under CR.PC though they have a separate act (Muslim women protection of right on Marriage Act) for them.

A wife can not claim and get maintenance from her condition:

• Wife living in adultery, or 

• Refuses to live with husband without any valid reasons, or

• Living separately by mutual consent.

     ‘Minor’ means a person who under the provisions of section 3 of the India Majority Act, 1875 is deemed not to have attained his majority i.e., above the age of 18 years.

     Minor son (legitimate or illegitimate) is entitled to get maintenance under section 125 of CR.PC.

  If minor daughter is unmarried, then she is entitled to get maintenance from her father and if she is married, then she is also entitled to get maintenance has to satisfied that her husband has not essential and sufficient means for the maintenance of his minor wife.

    If any major child is abnormal (mentally or physically unfit), then the father of that child has to maintain him and he can claim maintenance on this ground of abnormality.

    Father and Mother:

• Natural father and mother can claim maintenance.

• Mother includes adoptive mother, she can claim maintenance from adoptive son.

• Father can claim maintenance ,it is a statutory obligation, this claim cannot be defeated by pleading that the father failed to fulfil his parental obligation.

• A children stepmother can claim maintenance.

In the case of Pandurang Bhauro Dabhade v Bahurao Bhaurao Dabhade, Bombay High court has held that father or mother can claim maintenance under section 125(1)(d) if he or she is unable to maintain himself or herself. But it is also important that of parents maintenance to their children, children must have sufficient means to maintain their parents and yet neglects or refuses to maintain the father or mother.

  Essential conditions for granting maintenance:

There are some essential conditions which should be fulfilled for claiming and granting maintenance:

• Sufficient means for maintenance are available.

• Neglect or refusal to maintain after the demand for maintenance.

• The person claiming maintenance must be unable to maintain himself/herself.

• Quantum of maintenance depends on the standard of living. 

     Special provision for maintenance of minor married girl:

If the husband of a minor daughter does not have sufficient means to maintain her then it is the duty of her father to give maintenance. In these circumstances, married minor daughter is entitled to get maintenance from the father.

     Jurisdiction of magistrate to deal with maintenance proceedings – 

According to section 125(1)(d), if any person neglects to maintain his wife, children or parents, then a magistrate of the first class can order such person to make a monthly allowance for the maintenance of his wife, children or parents, at the such monthly rate as such magistrate thinks fit, and to pay the same to such person as the direction of magistrate.

    If a minor female child is unmarried, then the magistrate can order to make such allowance, until she attains her majority. In case a minor child is married and the magistrate is satisfied that the husband of such minor female child is not possessed of sufficient means, than the magistrate can order father of the minor female child to make such an allowance for maintenance.

When a proceeding is pending regarding monthly allowance for maintenance, the magistrate can order such person to make a monthly allowance for the interim maintenance of his wife, children or parents and the expenses of such proceeding which the magistrate considers reasonable.

An application for the monthly allowance for the interim maintenance and expenses of proceeding should be disposed within sixty days from the date of the notice of the application to person.

According to section 125(3), if any person fails to with the order without sufficient cause, than magistrate can order to issue a warrant for levying the amount with fines. If the person again fails after the execution of the warrant, then the punishment of imprisonment for a term which may extend to one month or until payment of sooner made is awarded.

 Procedure for maintenance:

Section 126 of CR.PC deals with “procedure for maintenance.” This section says the following:

• Proceeding under section 125 may be taken in the following district:

1. Where he is, or

2. Where he or his wife resides, or

3. Where he last resided with his wife or mother of an illegitimate child.

• Evidence to be taken in the presence of a person against whom maintenance is to be ordered.

• If a person is wilfully avoiding summons, then ex-parte evidence is taken in that case.

Enforcement of order of maintenance:

Section 128 deals with “Enforcement of order of maintenance.” According to this section, the following are the conditions for enforcement of the order of maintenance:

• Copy of order under section 125 is given to that person free of cost in whose favour it is made. In case the order is in favour  

• Lm children, then the copy of the order will be given to the guardian of children.

• If any magistrate has made an order under section 125, then any magistrate of India can enforce this order where that person lives who have to give maintenance.

• The magistrate has to satisfy two conditions before enforcement of order:

1. Identity of parties, and

2. Proof of non-payment of allowances.

Chapter IX of the code of criminal procedure is essential for the protection of the rights of the divorced wife, children and aged parents. It is made to protect them from unusual livelihood. Maintenance is the duty of everyone who has sufficient means for the same. In this chapter of CR.PC, there are various provisions given related to maintenance like who is entitled to maintenance, Procedure of Maintenance, Alteration of the provisions order, Enforcement of order of maintenance etc.