Law and You >Procedural Laws > CrPC > Section 125 of CrPC – Who is Supposed to Pay the Maintenance?
Maintenance is a term mostly associated with the financial support that a woman can claim from her husband after divorce. But the children and parents of a married man can also claim maintenance from him. Maintenance for all members is provided under Section 3(b) of the Hindu Adoption and Maintenance Act, 1956, which defines maintenance as ‘provisions for food, clothing, residence, education and medical attendance and treatment’ and ‘in the case of an unmarried daughter, also the reasonable expenses of, and incident to her marriage.’ Chapter IX Section 125 of CrPC deals with the Order for Maintenance of Wives, Children, and Parents.
Object of Section 125:
In Inderjit Kaur v. Union of India, (1990) 1 SCC 344 case, the Court held that, that Section 125 CrPC provides a speedy remedy against starvation of the civil liabilities of the parties, the order made thereunder is tentative and is subject to final determination of the rights in civil court.
Section 125 (1) in The Code Of Criminal Procedure, 1973
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, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.
Explanation.- For the purposes of this Chapter,-
(a) ” minor” means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875 ); is deemed not to have attained his majority;
(b) ” wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
Explanation of Section 125(1):
Meaning of the Phrase ‘any person’:
In Rajkumar v. Yashodhara Devi, 1978 Cr LJ 600 (P & H) case, the Court held that the words “any person” include only father or son or husband but does not include a daughter or mother or wife,
In S K Chandrika V. Smt. Byamma, 199 (4) Crimes 155 (Kant.) case, the Court held that “Any person” in Section 125 CrPC, includes mother also.
In Susheela v. Kamalavally, 1999 (4) Crimes 191(Ker) case, the Court held that a daughter is also liable to maintain her father as the expression “his father” would also mean “her father”.
In Vidya Manohar Arbat v. Kashirao, 1986 Cr LJ 1399 (Bom) case, the Court held that an indigent father is entitled to claim maintenance from his married daughter.
In Vidya Manohar Arbat v. Kashirao, AIR 1987 SC 1100 case, the Court held that married daughter may be ordered to pay maintenance to her parents.
In Dipak Banerjee v. Sudipta Bannerjee, 1988 Cr LJ 1627 (Cal) case, an application by wife and child under Section125 of CrPC cannot be defeated because the opposite party is domiciled in the USA.
Meaning of the Phrase “sufficient means”:
If a man is healthy and able-bodied he must be held to possess the means to support his wife, children and parents and he cannot be relieved of his obligation on the ground that he is a mere boy and is unemployed.
In Tahira v. Ali Hussain, AIR 1979 SC 362, the Court held that the burden of proof that the respondent has sufficient means is on the applicant. But the burden is not heavy and can be based on the preponderance of probabilities. On the establishment of this, the burden shifts to the respondent to show that he has no sufficient means to provide maintenance.
In Chandrapal v. Harpyari, 1991 CrLJ 2847, 2849 (All) case the Court held that the maintenance allowable to wife must have relevance to the means of the husband. The magistrate must discuss the evidence and determine the means of the husband for fixing the amount of maintenance; means not only mean the tangible property or the source of income of the husband but also mean his capacity, potentiality, and status.
In Chander Prakash v. Shila Rani, AIR 1968 Del 174 case, the Court held that the words “sufficient means” should not be confined to the actual pecuniary resources but should have reference to the earning capacity.
In Md. Manzoor v. Najma Khatoon, 1987 (2) Crimes 539, 541 (Pat) case, the Court held that the capability of the husband to pay must be proved to fix the quantum of maintenance.
In Tarak Shaw v. Minto Shaw, 1984 Cr LJ 206 (Cal) case, the Court held that even in case of insolvency of the husband, the capacity to earn being there on him it is material to construe that he has the means.
One’s debt (Valliammai v. Dharmalinga, AIR 1941 Mad 762) or young age and inability to get a job (Prabulal v. Paramatibai, 1963 Cr LJ 868) or worldly renunciation (AIR 1923 Rang 131) does not provide ground to claim that he has not sufficient means.
In Mohd Ali v. Sakine Begam, AIR 1944 Lah 392 case, the Court held that physical infirmity and ailments on account of which one cannot earn is material in case of deciding sufficient means.
In Tara Chand v. State, 1973 Cr LJ 1097 case, the Court held that income of other relations of the husband does not construe that he has the means.
Meaning of the Phrase “neglects or refuses to maintain”:
In Dhan Kaur v. Niranjan Singh, AIR 1960 Punj. 295 case, the Court held that no order for maintenance can be passed unless neglect or refusal is thereby a person against whom the petition is filed. Proof of neglect or refusal is the basis of the claim for maintenance and without such proof, no order of maintenance can be made even though she is living separately in the exercise of her statutory right.
In Narayan Sahu v. Sushama Sahu, 1992 (1) Crimes 66 (Ori) case, the Court observed that “refuse” means a failure to maintain or a denial of obligation to maintain after demand. “Neglect” on the other hand, means a default or omission, in the absence of demand. Neglect and refusal may be implied from the conduct of a party and there need not be a formal refusal.
In Bhikaiji v. Maneckji, (1907) 9 Bom LR 359 case, the Court held that neglect or refusal to maintain may be by words or by conduct. It may be expressed or implied.
In Malati Sahu v. Khagyodhar Sahu, 1991 (2) Crimes 541 (Ori) case, the Court observed that no straight jacket formula can be laid down to answer the question, whether the wife has been able to establish that her husband has neglected or refused to maintain her. It would depend on the facts and circumstances of the case in question. The Court further observed that a situation may arise in which it is no longer possible for the wife to continue to live in her husband’s house with dignity, prestige, and self-respect. Such situation may also arise in different circumstances, like physical assault or torture to the wife, creating a situation in the family which makes it unbearable for her to live with dignity; husband’s refusal to discharge his marital obligations; lack of feeling of warmth towards the wife from the husband and the members of his family. Even a long separation between spouses, without any acceptable material to show any genuine effort made on behalf of the husband to persuade his wife to live with him, may sufficient to draw an inference of neglect and refusal to maintain.
Meaning of the Phrase ” unable to maintain oneself”:
In Bindelal v. Smt. Kushma Devi, 1988 Cr LJ NOC 19 (All) Case, the Court held that the applicant’s inability to maintain herself/himself is the sine qua non for a claim of maintenance under Section 125(1).
In Abdul Salim v. Najima Begum, 1980 Cr.L.J. 232 (All) case, the Court observed that the claimant may be wife, child, or parent, proof of their inability to maintain themselves is a condition precedent to grant maintenance and the burden of proving the same is on them. The phrase unable to maintain does not mean that he or she should be an absolute destitute and should be on the street, should beg and be in tattered clothes. lf she for a while is taken care by some of her relatives that will suffice to prove that she is not in a position n to maintain herself.
In Ramdayal Vaishya v. Anita Kumari, 2004 Cr LJ 3669 (3670) (MP) case, the Court held that the income of wife’s parents would not be taken into consideration, her own individual income would be relevant.
In Mohinder Singh v. Jaginder Kaur, 1982 Cr LJ 127 (P&H) case, the Court held that specific pleading regarding the inability to maintain herself is not a prerequisite in an application for maintenance.
In Dinesh Sharma v. Rupa Rani Sharma, 2013 Cr LJ 469 (Pat) case, where the wife was employed as a teacher and was drawing a fixed salary, it was held that she was able to maintain herself and was not dependent on the husband, Hence the High Court allowed the revision, set aside the order of maintenance and remitted the matter to the Principal Judge, Family Court for re-hearing and re-deciding the entire matter.
In T Buvaneswari v. Ramakrishnan, 1989 (1) Crimes 292, 294 (Mad) case, the Court held that so far as the wife is concerned, her potential earning capacity is not a relevant consideration.
In Norber v. Terasa, 1971 Cr LJ 1496 case, the Court held that in the case of children and parents, their age and conditions of life will prove their inability to maintain themselves. Where maintenance is claimed for the child, which is only about two years old, it is obvious that it is unable to maintain itself and no specific proof is essential to prove that the child is unable to maintain itself. “Physical or mental defect on the part of major children disabling them to maintain themselves are entitled for maintenance. Any child above the age of 18 years not being disabled by either mental or physical deformity is presumed to be having sufficient means. Old age needs no further proof to establish one’s inability. But in the case of wife this at times causes much hardship.
The Strategy of the Applicant and the Respondent in the Court:
What does applicant should prove?
The applicant needs to prove that the respondent has
- neglected or refused to maintain him/her;
- sufficient means; and
- that he or she has an inability to maintain himself or herself.
What should be the respondent’s defence?
The respondent needs to prove that
- the marriage is illegal
- he has not sufficient means; and
- that he/she has not neglected or not refused to maintain the applicant; and
- that the applicant has the ability to maintain himself or herself.