Law and You >Procedural Laws > CrPC > Who Can Claim Maintenance Under Section 125 of CrPC?
Maintenance is a term mostly associated with the financial support that a woman (wife) 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 โprovisions for food, clothing, residence, education and medical attendance and treatmentโ and โin the case of an unmarried daughter, also the reasonable expenses of, and incident to her marriage.โ Chapter IX of the Code of Criminal Procedure deals with the Order for Maintenance of Wives, Children, and Parents.
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, 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.
Meaning of the Term โwifeโ:
The Code of Criminal Procedure does not define the term โwifeโ clearly except indicating in the Explanation to Section 125 its inclusive character so as to cover a divorce. The explanation attached to Section 125(1) of the Code of Criminal Procedure says that the term โwifeโ includes women who is divorced by or has obtained divorce from her husband and has not re-married. So, who all can claim maintenance under the definition of wife?
- Legally wedded wife
- Divorced wife but not a re-married wife
A woman cannot be a divorcee unless there was a marriage in the eye of law preceding that status. Unlike, the provisions of maintenance in personal laws, no strict proof of performance of essential rites for marriage is required in proceedings under section 125 Cr P.C. It is enough if the applicant’s wife succeeds in showing that they lived together as husband and wife.
Meaning of the Term ‘Wife’ from Different Case Laws:
In Kamla Devi v. State of Uttarakhand, (2009) IDMC 362 (Utt) case, a marriage procedure was followed in the temple in the presence of Lord Jagannath the trial court held that no marriage was proved but the High Court allowed her petition of maintenance.
In Savithramma v. Ramanarasimhaiah, (1963) 1 Cr LJ 131 case, the Court held that the expression โwifeโ means only a legitimate wife.
In Savtaben Samabhai Bhatiya v. State of Gujrat, 2005 Cr LJ 2141 (2143) (SC) case, the Court held that the expression โwifeโ means only legally wedded wife.
In Kongini Balan v. M. Visalakshy, 1986 CrLJ 697 (Ker) case, the Court held that the expression โwifeโ includes a woman who obtains divorce by mutual consent.
In Ishwar Singh v. Smt. Hukum Kaur, AIR 1965 All 465 case, the Court held that the expression โwifeโ means only a legitimate wife, and therefore, a marriage proved illegal, cannot give a wife any right to get maintenance.
In Mohammed Amin v. Vakil Ahmed, AIR (1952) SC 358 case, the legal status of the woman as โwifeโ was questioned, and the Supreme Court held that โThe presumption of marriage arises in Mohammedan law in the absence of direct proof from a prolonged and continual cohabitation as husband and wife.โ
In Khushboo vs. Kanniammal (2010) 5 SCC 600 case, the Supreme Court observed: โWhile there can be no doubt that in India marriage is an important social institution, we must also keep our minds open to the fact that there are certain individuals or groups who do not hold the same viewโฆNotions of social morality are inherently subjective and the criminal law cannot be used as a means to unduly interfere with the domain of personal autonomy.โ
Proof of Marriage:
In Dwarika Prasad Satpathy vs. Bidyut Prava Dixit AIR (1999) SC 3348 case, the Court held that the validity of the marriage for the purpose of summary proceedings under Section 125 of the CrPC is to be determined on the basis of the evidence brought on record by the parties. The standard of proof of marriage in such proceedings is not as strict as that required in a trial of an offence under Section 494 of the Indian Penal Code. If the claimant in proceedings under Section 125 succeeds in showing that she and the respondent have lived together as husband and wife, the Court has to presume that they are legally wedded spouses, and in such a situation one who denies the marital status can rebut the presumption. When the respondent does not dispute the paternity of the child and accepts that a marriage ceremony was performed, though not legally perfect, he cannot avoid maintenance proceedings.
In Suman Nivrutti Satav v Nivrutti Dattu Satav (Bombay High Court, decided on 26th August 2009 case, the wife was thrown out of the matrimonial home along with her minor daughter. She filed a case for maintenance but the husband pleaded that the marriage was not valid since the woman is his second wife. The wife contended that she was the first wife and that a year after their marriage, he remarried. The magistrateโs court and the Sessions Court upheld the husbandโs contention and denied her maintenance. Since paternity was not denied, the daughter was awarded Rs.200/- p.m. as maintenance which was enhanced to Rs.400/- by the Sessions Court. The wife appealed to the High Court which upheld her claim and awarded Rs.500/- p.m. as maintenance from the date of filing the application i.e. 1991. The court ruled that the lower court had erred in demanding strict proof of marriage for claiming maintenance, and commented that the fact that both had stayed together as husband and wife and that a daughter was born to them was sufficient evidence of marriage for the purpose of awarding maintenance under S.125 Cr.P.C.
In Lakhwinder Kaur vs. Gurmail Singh 1 (2008) DMC 148 Punjab and Haryana case, the husband denied he was married to the woman and that he was not the father of the child she had. The court held that proceedings under section 125 CrPC are of a summary nature, and the standard of strict proof is not required. According to the court, โIf the claimant in proceedings under Section 125 of the Code succeeds in showing that she and the respondent have lived together as husband and wife, the Court can presume that they are a legally wedded spouse, and in such a situation, the party who denies the marital status has to rebut the presumptionโ.
In Vithabai Laxman, (1972) 75 Bom LR 447 case, the Court opined that the standard of proof that the parties to proceedings are validly married is not so high as in a prosecution under sections 494. 495, 497, and 498 of the Indian Penal Code. But the burden of proof is prima facie on the applicant.
In Krishna Chandra Jerai vs State of Jharkhand 1 (2005) DMC 437 Jha case, the wife sought maintenance but could not prove the marriage, although the husband did not deny the fact of long cohabitation and that they had three children. The High Court held that strict proof of marriage is not necessary in summary proceedings. According to the court, โSection 125 is not be utilized for defeating the rights conferred by the Legislature to the destitute women, children or parents who are victims of social environmentโ.
In Pradeep Gupta vs. Kanti Devi 1 (2003) DMC 265 Jha case, the Jharkhand High Court held that strict proof of marriage is not necessary when awarding maintenance under section 125 CrPC. The court referred to section 50 of the Indian Evidence Act, which states that โOpinion or relationship, when relevant: When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, or any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is relevant factโฆโ It was submitted that the persons living in and around the area had always thought of the man and woman as husband and wife, and the court accepted this argument.
Position of the Second Wife:
In Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav, AIR 1988 SC 644 case, the Court held that the marriage of a woman in accordance with the Hindu rites with a man having a living spouse is a complete nullity in the eye of law and she is, therefore, not entitled to benefit of Section 125 of the Code.
In Manda R. Thaore vs Ramaji Ghanshyam Thaore [Bombay High Court (Nagpur Bench), Criminal Revision Application Number 317/2006] case, the court held the second wife was not entitled to maintenance under section 125 CrPC but she was entitled to maintenance under the Protection of Women from Domestic Violence Act. The court awarded compensatory costs (Rs. fifteen thousand) to the woman to help her pursue proceedings under PWDVA.
In Baby Devi v. Arun Kumar Aman, 1999 Cr LJ 4510 case, the Court held that a second wife whose marriage is void is not entitled to maintenance, but children born of such marriage are entitled to maintenance under section 125 CrPC.
Position of divorcee wife after remarriage:
In Rameshchandra v. Beena Saxena, 1982 CrLJ 1426 (All) case, the Court held that application of maintenance by a divorced wife who was not married at the time of filing of the application, though remarried subsequently is maintainable.
In A. Ravindraprabhu v. Devali Vijayamma, 1983 SCC (Cri) 103 case, the Court held that in case of re-marriage, the wife would be entitled to maintenance up to the date of re-marriage, and for a child so long as the childโs custody remains with her.
Effect of Personal Laws:
In Begam Subanu (alias) Sairabanu, 1987 Cr LJ 980 (SC) case the Supreme Court ruled that the right provided under the personal law of the Muslims does not disentitle the ๏ฌrst wife to claim maintenance as against her husband when he marries subsequently.
In Ahmed Khan v. Shabanu Begum, AIR 1985 SC 945 case, the question that came for consideration before the Supreme Court was whether a Muslim wife, whose husband had taken a mistress was entitled to claim maintenance from her husband. The point of interest was that since the husband is permitted by Muslim law to take more than one wife, can his second marriage afford a legal ground to the wife to live separate and claim maintenance. The Supreme Court while interpreting the explanatory clause to sub-Section (3) of Section 125 observed that they are matrimonial injuries that entitled a neglected wife to live separate and claim maintenance. The explanation has to be construed from the point of view of the injury to the matrimonial right of the wife and not with reference to the husband’s right to marry again. The explanation has to be seen in its full perspective but not disjunctively. The Court decreed maintenance holding that the right of polygamy does not curtail the application of Section 125(1) to Muslim first wife. Thus, even if personal law permits such a marriage both the wives are entitled, for it is neglect by the husband as against other.โ Similarly keeping a mistress will amount to neglect.
In Sandhya Kumari vs State Of Bihar, 1 (2001) DMC 6 case, the Court held that the scope of Section 125, Cr.P.C. as well as Section 24 of the Hindu Marriage Act stand on a different footing. It is true that the maintenance granted under the Hindu Marriage Act can be adjusted out of the amount granted under Section 125, Cr.P.C.
In Sudeep Chaudhary v. Radha Chaudhary, AIR 1999 SC 536 case, the Court held that when the wife is granted interim alimony both under Section 24 of the Hindu Marriage Act and under Section 125, Cr.P.C., in that event, the maintenance amount granted under Section 125, CrPC is to be adjusted against the amount awarded in a matrimonial proceeding.
Legitimate or Illegitimate Minor Child:
Child born out of legal marriage is considered as legitimate child. Child of void marriage is legitimate child. The child which is not legitimate is illegitimate. The phrase โunable to earn a livelihood for itselfโ for minor child means that the child is not able to earn complete livelihood as an adult person can without depending upon any other person.
In Meenatchi Ammal v. Karuppana Pillai, (1924) 48 Mad 503 case, the Court held that the maintenance allowed to a girl cannot be cancelled on her marriage without proof that she has thereby become able to maintain herself and ceased to depend upon the maintenance ordered.
It is to be noted that the provision of this section apply irrespective of personal law, but the maintenance in case of married daughter ceases on her majority (attaining age of 18 years).
In Sevla Saroja v. Sasisthana, 1989 Mad LW (Crl) 146 case, the Court held that even in cases where the child (except a married daughter) has attained majority, if he or she is unable to maintain himself or herself, owing either to a physical or a mental defect, the court can make an order for maintenance.
Meaning of โhis father or motherโ:
The phrase โHis father or motherโ includes biological and adoptive parents.
In Pandurang Baburao Dabhade v. Baburao Bhaurao Dabhade, 1980 Cr LJ 256 (Bom) case, the Court held that to maintain parents is a statutory obligation, that claim cannot be defeated by pleading that the father had failed to fulfill his parental obligation towards the children during their minority.
In Ayyagari SVP Rao v. AV Veni. 1989 Cr LJ 673 (AP-DB) case, the Court held that the mother is one who has given birth to the child. A stepmother can be dependent but she cannot claim maintenance. In Kirti Kant D. Vadadoria v. State of Gujrat, 1996 SCC (Cri) 762 case, the Court held that a childless step-mother may claim maintenance from her step-son provided she is a widow or her husband if living is also incapable of supporting and maintain her.