MAINTEANANCE U/S 125
Section 125 to 128 of Cr.P.C lay provisions for maintenance of wives, children and parents. Section l25 of the Code gives effect to the natural and fundamental duty of a man to maintain his wife, children and parents so long as they are unable to maintain themselves This provision is a measure for social justice and specially enacted to protect women and children, (also old and infirm poor parents) and falls within the constitutional sweep of Article 15(3) reinforced by Article 39.1 2.1 Territorial Jurisdiction: Prior to 1973 the place where the wife resided after desertion or divorce was not material for granting jurisdiction to the court in a maintenance proceeding. This is an integral part of all matrimonial proceedings. Application for maintenance can be moved by either of the spouse who does not have the sufficient means to maintain him/her self. Maintenance can also be classified in to two parts:
Various laws governing maintenance are as follows:
• for Hindus – Hindu Marriage Act, 1955; Hindu Adoption and Maintenance Act, 1956
• for Muslims – Muslim Women (Protection of Rights on Divorce) Act, 1986
• for Parsis – Parsi Marriage and Divorce Act, 1936
• for Christians – Divorce Act, 1869
• secular laws – Criminal Procedure Code, 1973; Special Marriage Act,1954
1) Interim Maintenance: Temporary Maintenance (pendente lite)
Such maintenance is provided during the pendency of the case in the court. The underlying idea behind giving such maintenance is that one party should not loose and stand on a weaker footing at the time of contesting case. Quantum of such maintenance is dependant on variety of factor but most important aspect is the status of the parties prior to the filing of the case and the income/salary of the spouse against whom such maintenance is claimed. Court always tries to bring both the party at equal platform and footing. Temporary maintenance is granted by the court during the pendency of proceeding for divorce or separation to meet the immediate needs of the petitioner.
Under Section 24 of Hindu Marriage Act, 1955 either of the spouses, husband or wife can be granted relief if the court is satisfied that the applicant has no independent income sufficient for his or her support and necessary expenses of the proceedings pending under the Act.
Interim maintenance may also be claimed under Section 125 CrPC by the wife during the pendency of proceeding for regarding monthly allowance for maintenance under Section 125(1) CrPC. Furthermore, Section 36 of Special Marriage Act, 1954 also makes provision for the wife to seek expenses from the husband if it appears to the district court that she does not have independent income sufficient for her support and necessary expenses of proceedings under Chapters V or VI of that Act.
Still further, under Parsi Marriage and Divorce Act, 1936 either Parsi wife or husband is entitled to claim expenses where the proceeding is pending under the Act. Section 39 of the Act which is substantially the same as Section 36 of the Special Marriage Act makes a provision in this behalf.
Also, under Section 36 of Divorce Act, 1869 which applies to persons professing Christain religion, a wife is entitled to expenses of proceeding under the Act and maintenance while the suit is pending.
All these provisions specify that the application for interim maintenance has to be disposed of within sixty days of service of notice on the respondent
2)Permanent Maintenance:
It is the maintenance granted permanently after the disposal of the proceeding for divorce or separation.
Hindu Marriage Act, 1955, Section 25 – Applicant, either wife or husband is entitled to receive from the spouse for his/her maintenance and support a gross sum or monthly or periodical sum for a term not exceeding the applicant’s lifetime or until he/she remarries or remains chaste.
Hindu Adoption and Maintenance Act, 1956, Section 18 – Hindu wife is entitled to be maintained by her husband during her lifetime. Wife also has a right to separate residence and maintenance if any of the condition in Section 18(2) [desertion, cruelty, leprosy, any other wife/ concubine living in the same house, conversion of religion or any other reasonable cause] is fulfilled until she remains chaste or does not convert to other religion. It may also be noted that Section 19 of this Act makes a provision for a widowed wife to be maintained by her father-in-law.
Criminal Procedure Code, 1973, Section 125 – This section provides for maintenance not only to the wife but also to child and parents. Court may order a husband who has sufficient means but neglects or refuses to maintain his wife who is unable to maintain herself to provide monthly maintenance to her. However, wife shall not be entitled to receive maintenance if she is living in adultery, or refuses to live with husband without any sufficient reasons, or living separately with mutual consent.
Muslim Women (Protection of Rights on Divorce) Act, 1986, Section 3 – A divorced Muslim woman is entitled to a reasonable and fair provision and maintenance to be paid to her within the iddat period by her former husband; an amount equal to the sum of mahr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim law; and all the properties given to her before or at the time of marriage or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends. If husband fails to provide her the above mentioned then Magistrate can order for payment of the same.
Parsi Marriage and Divorce Act, 1936, Section 40 – A Parsi husband or wife may apply to the Court under this section whereupon the Court at the time of passing any decree under the Act or anytime subsequent thereto order that the defendant pay the plaintiff a gross or monthly sum for his/her maintenance and support. Such order may also be modified subsequently if the Court is satisfied that change in circumstances warrants so. The order may also be rescinded or modified if the party in whose favour the order was made remarries; or in case of wife, she does not remain chaste; or in case of the husband, he has sexual intercourse with any woman outside the wedlock.
Special Marriage Act, 1954, Section 37 – This section is also similar to Section 40 of the Parsi Marriage and Divorce Act. The difference being that under this section maintenance may be claimed only by a wife against the husband from a court exercising jurisdiction under Chapters V or VI of the Act. An order made under this section may be modified or rescinded by the district court at the instance of the husband if it is shown that the wife has remarried or is not leading a chaste life.
Divorce Act, 1869, Section 37 – This section empowers the district court to order the husband to secure a reasonable gross sum to the wife or annual sum not exceeding her lifetime when a decree of dissolution or decree or judicial separation is obtained by the wife. While passing such order, the court may have regard to fortune of the wife, ability of the husband and conduct of the parties. The court may also order the husband to pay such monthly or weekly sum to the wife for her maintenance as the court may think reasonable. If subsequently, the husband becomes unable to make such payments, the court may discharge or modify such order