MAINTENANCE OF WIFE AND CHILDREN UNDER CRPC, 1973
Author: Rahul Verma (Calcutta University)
Abstract
It is a fundamental duty of a man to maintain his wife, children and parents so long as they are not able to maintain themselves. Even Atharva Veda says that a husband should always love and care his wife and give her the required respect. Even at the difficult times, he should not be rude to his wife. Not only that but parents are also supposed to maintain their children, teach them moral responsibilities and also supporting them physically and emotionally. Similarly it is the duty of a person to take care of his/her parents. Our parents are the most important part of a life as it is not only the duty but also a dharma to maintain our parents when they become old.
But not all people are like that. It has been seen that with each passing day people are becoming self-centered. They don’t care about their parents, wives, and children. This research paper deals with the duties of a person towards his wife and children. For this, the author took help of the Criminal Procedure Code 1973, or Act of the Parliament of India. This research paper is divided into three parts. First part deals with the introduction followed by the second part which identifies the remedies available to the wives and children of a person when they are neglected by the husband and father as the case may be. The last part is about the conclusion.
Introduction
A wife, a child and parents have two remedies to get maintenance. The first remedy is by instituting a civil suit under Civil Procedure Code1908. And the second remedy is through a proceeding code of criminal procedure 1973.
Section 125-128 of Code of Criminal Procedure (CrPC, 1973) deal with the provisions for maintenance of wives, children, and parents.
While most of the sections of Code of Criminal Procedural are procedural in nature but section 125 is one of the very few sections that deal with substantiate law.
Though there are separate personal laws governing marriage and maintenance and an individual is free to initiate a suit as per his personal law to claim maintenance but Section 125 of CrPC, 1973 work on secular realm.
The intention behind the provision of maintenance under Chapter IX of CrPC, 1973 is not to punish an individual but to secure the rights of victims, who are neglected by their family members.
Maintenance to Wife
Subsection (1) of section 125 of CrPC,1973 states that if any person having sufficient means, neglects or refuses to maintain his wife who is unable to maintain herself , then in such situation she may be entitled to maintenance by her husband.
A magistrate of the first class after taking proper note of the situation and after satisfying himself upon the proof of such neglect and referral may order the husband of that woman to give monthly allowance to his wife at such monthly rate fixed by the magistrate himself.
In Ranjana Shivaji Rakhpasare V Shivaji Bapu Rakhpare[1], the court held after marriage the husband has a duty to provide shelter and maintenance to the wife. If he neglects then she can have it from the court by filing a petition under this section.
The right of a wife and of children to be maintained by the husband and by the actual father is a statutory right, it does not depend upon the personal law ref- Kariyadan Pokkar V Kayat Beeram kutti[2]
Meaning of Wife:-
1. Wife means legal wife that means the marriage must be a valid one under the personal law applicable to parties. A wife who is legally married to a person and is abandoned by him can claim maintenance[3].
2. Status of second wife – Second wife is not entitled to get maintenance[4] even if she does not know the existence of the previous marriage of her husband.
In Yamuna Bai Vs Anant Rao’s case, the question which was raised is whether a Hindu woman married to Hindu man having a legally wedded wife, can claim maintenance under Section 125 CrPC, 1973. Yamuna Bai after marriage lived with her husband for one week thereafter left him by making an allegation of ill-treatment. It was held by the court that the marriage is null and void and wife in a null marriage has no right to claim maintenance
That means wife from the second marriage is no wife at all, & she is not entitled to maintenance but a child from such marriage is entitled.
3. Wife means woman who has been divorced or has obtained divorce from her husband and has not remarried.
The term wife also includes woman who has been divorced or has obtained divorce but not remarried. This also includes divorce by mutual consent. Thus the definition of wife has been widened and the women who has been divorced or obtained divorce will be treated as a wife for the meaning of section of 125(1) of CrPC, 1973, provided if she is not remarried & is entitled to maintenance, irrespective of her religion[5]
4. Live in Relationship –
In Chanmuniya V Virendra Kumar Singh Kuswara[6] the question that was arised whether a man and woman living together for a long time even without a valid marriage be considered as husband and wife entitled such a woman to maintenance.
After considering the provisions of Domestic violence Act 2005 and change in social attitudes and values held that tem “ wife” includes even those cases where a man and a woman living together as husband & wife for a long period of time & Strict proof of marriage is not required for availing the benefit of Section 125 CrPC,1973.
Interim Maintenance
Magistrate of the first class during the pendency of the proceeding for maintenance may order the husband of the woman to make monthly allowance to his wife for interim maintenance to his wife. He may also direct the person to bear the expenses of such proceeding at a rate which magistrate thinks fit. It is also provided that application for monthly allowance for the interim maintenance & expenses of the proceeding as far as possible be disposed of within sixty days from the date of the service of the notice of application to such person [Section 125(1) Provision of CrPC, 1973]
When wife is not entitled to maintenance
According to Section 125(4) of CrPC, 1973, a wife is not entitled to maintenance or interim maintenance and expenses of the proceeding when any of three conditions are true.
- When she is living in adultery,
- When she refuses to live with her husband, without providing sufficient reason
- When she is living separately with mutual consent.
If an order has already been passed in favor of the wife, such order should be cancelled on proof of her living in adultery or if she has refused to live with her husband without giving sufficient reason or if they are living separately by mutual consent. 125(5) of CrPC, 1973
Maintenance to Children
Though an illegitimate wife cannot claim maintenance but illegitimacy of a child is immaterial while awarding maintenance to him. That means a child who is born from an invalid marriage is entitled to maintenance if he/she is a minor unable to maintain himself/herself[7]. Section 125(1) of CrPC, 1973 states that if anyone having sufficient means neglects or refuses to maintain the following category of persons.
- Legitimate or illegitimate minor child, whether married or not unable to maintain herself.
- His legitimate or illegitimate child (not being a married daughter) who has attained majority, but due to the reason of any physical or mental abnormality or injury, unable to maintain himself or herself.
Then this category of individuals can claim maintenance and magistrate of 1st class after taking all necessary proofs may order that person to maintain his or her child/children in the way of giving monthly allowances.
The term child is not defined anywhere in the code. But it means a person who has not attained the age of 18 years according to the Indian Majority Act, 1895 and who is incompetent to enter into any contract or to enforce any claim under the law.
Even a child who has attained majority can claim maintenance if he is unable to maintain himself or herself due to mental or physical abnormalities or injury. But if paternity is not established, the child is not entitled to maintenance.[8]
In American Kumar Paul Vs Maya Paul[9] the court held that application for maintenance of children is maintainable till the children had not attained majority. Once the children attained majority, provision of section 125(3) would cease to apply.
It is stated that any person having sufficient means has the duty of maintaining his children. Here any person includes a male as well as a female. Even if the child is leaving with her mother who refuses to live with her husband under decree for restitution of conjugal rights .The father has the duty to maintain that child[10]. If no date is mentioned in the order for maintenance or interim maintenance & expenses of the proceedings , then the monthly allowance for maintenance or interim maintenance and expenses of the proceeding shall be payable from the date of the order.[11] Subsections of Section 125 of CrPC,1973 clearly provides that the monthly allowances for the maintenance or interim maintenance payable and expenses of the proceedings shall be payable from the date of order , or if so ordered from the date of the application for maintenance or interim maintenance & expenses of the proceedings as the case maybe.
Failure to Comply with the magistrate Order
If the person who is ordered to pay maintenance to his wife or children or parents failed to pay the same without sufficient cause then he shall be required to pay the maintenance in the following two ways –
- The magistrate may for every breach of the order may issue a warrant for levying of the amount due in the manner provided for levying fines.
- The magistrate may also sentence that person to imprisonment for whole or part of each month allowance, or the interim maintenance and expenses of the proceeding as the case may be.
But a person cannot escape his liability by agreeing to go to jail. Sentencing a person to jail is a mode of recovering the maintenance. It can’t be a substitute of maintenance that means he anyway has to make the payment[12]
Alteration in allowance (Section 127)
The amount of the maintenance or interim maintenance Section 127of the Criminal Procedure Code 1973 empowers the magistrate to increase or decrease the amount of maintenance and/or interim maintenance due to the change in the circumstances of the person paying the maintenance or the person receiving the maintenance. But a person cannot ask for the wavering of this duty by stating the fact that he has become insolvent. Order for alteration of maintenance can only be passed if this was earlier order maintenance under Section 125 of CrPC, 1973. Private settlements between two parties cannot be held an order under Section 125 of CrPC, 1973. Therefore a petition to enhance the amount for maintenance which was arrived as a result of a private settlement cannot be made under Section 127 CrPC, 1973 Change in circumstances include[13].
Change in the circumstances mean
- Change in the standard of living of the parties to the suit.
- Change in the income of any of the parties.
- Changes due to death or birth of a child
- Divorce, etc
Subsection 2 of section 127 of the CrPC, 1973 clearly states that if it appears to the magistrate that in consequence of any competent civil court, any order made under Section 125 should be cancelled, then he shall cancel the order or vary it as per the necessity.
When Can a order of maintenance be cancelled
The order made under Section 125 in favor of a woman who has obtained divorce from her husband or divorced by her husband can be cancelled in any of the following situations
- The woman after the date of such divorce remarried again.
- The woman has been divorced by her husband and she has received whether before or after the date of such order , the whole of the sum payable to the wife on such divorce under any customary or personal applicable to them.
- The woman has obtained from her husband and she has voluntarily surrendered her rights to maintenance or interim maintenance as the case may be after her divorce.
While Section 126 deals with the procedure as to how an action should be taken under Section 125 of CrPC, Section 128 deals with enforcement of maintenance.
Conclusion
It can be said that one should always maintain the person who is dependent on him. Provisions of the Chapter IX of the Code of Criminal Procedure ,1973 gives the protection to the helpless and deserted wives and their children Rights o0f the parents are also covered under this chapter. One should also not forget that members of any religious community are entitled to claim maintenance under this chapter of CrPC, 1973.
[1] 2004 CrLJ 145(150) Bom
[2] (1895) 19 Mad 461
[3] Naurang Singh Vs Sapla Devi , AIR 1968, ALL 412
[4] Yamuna Bai Vs Anant Rao, 1988, Cr.LJ 793
[5] MSt Zehara Katoon Vs MD.Ibrahim 1981 Cr LJ 754
[6] (2011) 1 Cr LJ 96(SC)
[7] Sumitra Devi vs Bhukan Chowdhury ,1985, CrLJ 528
[8] Smt Ahalya Buriha alias Barihani vs chellia Pedhan,. 1992 Cr LJ 493( Orissa)
[9] (2010) Cr LJ 395 (SC)
[10] Dr.Chathukully V Janki Amma, 1972 CrLJ .696
[11] Con Mani V Esther Palkhikara (1981) 76(Ker).
[12] Kuldeep Kaur Vs Surinder Singh (1989) CrLJ, 794(SC)
[13] K.Venkatamana Vs K.Buriya Ramanna, 1989 CrLJ 2416(AP)
