Maintenance under CrPC and Protection of Women from Domestic Violence Act

This article was written by Piyush Tiwari, a student of West Bengal University of Juridical Sciences, Kolkata.

INTRODUCTION

Section 125 of the Code of Criminal Procedure lays down the provisions for maintenance of wife. The section is not religion-specific, women of any religion can claim maintenance under this section. The objective of the section is to support destitute women and, who are denied maintenance by the husband and have no means of survival. According to Supreme Court of India, the provision under Section 125 “is a measure of social justice specially enacted to protect women and children, it aims to prevent vagrancy and destitution by compelling those who can provide support to those who are unable to support themselves.”[1] This provision is in furtherance of Art 15(3) of the Constitution of India which empowers the state to make laws to empower women and children.

Maintenance under Section 125 of Code of Criminal Procedure

After marriage it is the responsibility of the husband to take care of and provide shelter to his wife. And if he neglects or refuses the wife can claim maintenance. The order under this section is not final, it is only a speedy remedy to protect women and children from vagrancy. The final status is decided by civil courts.

The wife can apply for maintenance under this section if husband having sufficient means refuses or neglects to maintain her, upon such proof of neglect or refusal the magistrate can order the husband to pay maintenance, starting from the date of application.[2] The objective of the provision was to protect women from leading a life in destitution. However, it does not empower them to apply for maintenance when the husband is ill-treating or not providing enough financial support for their maintenance.[3] In the above-mentioned situation the wife should first file for separation then maintenance. Its objective is to ensure some supply of food, clothes and shelter to the deserted wife.[4] The right under this section is a statutory right, it is independent of the personal laws of the parties concerned, i.e. even if the personal law does not provide for maintenance or it does but very less then also the deserted wife can claim maintenance.[5] An order for maintenance under section 125 cannot be held invalid just becauseit is inconsistent with the personal laws.[6] This provision has an overriding effect, i.e. benefits granted under this section will prevail over the ones provided under personal laws.[7]

Under this section the term wife included divorced wife also for the purpose of maintenance.[8] In Rohtash Singh v. Smt. Ramendri,[9] The SC held that a divorced woman enjoys the status of the wife for the purpose of maintenance untill she remarries or if she becomes capable of maintaining herself. In Ajay Bhardwaj vs. Jyotsana and others,[10] the Punjab and Haryana HC held that a woman in a live-in relationship is also entitled to maintenance just like a legally wedded wife.

The wife’s right to maintenance is subject to the following conditions

1. The marriage between husband and wife must be valid.
2. The husband has neglected or refused to maintain her.
3. He has sufficient means to maintain her.
4. The wife is unable to maintain herself.[11]

The burden to proof neglect or refusal by husband and sufficient means is on her[12].

The wife will be disqualified from claiming maintenance if,

1. She is living in adultery.
2. She refuses to live with her husband without sufficient cause.
3. They have been divorced and she has remarried.
4. If she is able to maintain herself.[13]

If any of the above facts are established by the husband, then the wife cannot claim maintenance.

Proof of neglect or refusal

For claiming maintenance, apart from showing that the husband has sufficient means, the wife has to prove neglect or refusal by the husband, i.e. the husband refuses or neglects to maintain her. It is proved through direct evidence or by drawing a reasonable inference. In the case of MalatiSahu v. Khagyodharsahu[14]the Orissa High Court held that even a separation for long period can be enough proof for showing neglect or refusal if, the husband has made no effort on his behalf to convince her to live together. If the husband is willing to maintain her then there is no refusal or neglect. Earning capacity of a life is not a reasonable justification for refusing maintenance.

If a Muslim husband, who has married a second wife, offers to maintain his first wife on the condition that she lives with him, cannot be deemed to be a valid offer and he will be considered to have refused to maintain his first wife.[15]

Unable to maintain herself

Wife’s inability to maintain herself is the condition precedent for claiming maintenance.[16] Her parent income will not be taken into consideration for determining her inability to maintain herself, only her income is relevant.[17] The test for determination is whether she is able to maintain herself the way she was used to do when she was with her husband.[18] Her having a degree is not a criterion to refuse maintenance.[19] If the wife is actually employed and she is earning enough, then only it can be said that, she can maintain herself.

PRIVATE AGREEMENT DOES NOT BAR THE WIFE FROM CLAIMING MAINTENANCE.

An agreement between husband and wife does not bar the wife from claiming maintenance. In Ranjit Kaur v. Pavittar Singh[20], this question was brought up for consideration “whether a wife who has voluntarily surrendered her right to maintenance in divorce proceedings, would not be entitled to claim subsequently maintenance allowance under Section 125 of the CrPC“. The court held that such agreement is against the public policy and hence it is void and the further said that it will not debar the wife from applying for maintenance under Section 125 CrPC.

Maintenance when the marriage is void

Under Section 125 of the CrPC only a legally wedded wife can claim maintenance from the husband. In Naurang Singh v. Sapla,[21]the husband had married another woman despite being already married. The court held that the second wife cannot maintenance as the marriage is void.  Once it is proved that marriage procedure is followed then strict proof of the performance of essential rite is not required under this section.[22]

Maintenance to the Second wife

a second wife is not entitled to maintenance as it is void on account of the existence of the first marriage, she is a legally wedded wife. The second wife can only get maintenance if at the time of marriage, the husband had concealed the subsistence of his first marriage. In Badshah v. Urmila BadshahGodse and Another[23], The SC held that if the husband had duped the second wife by not revealing the existence of his first marriage, the reasoning behind it is that the husband cannot be allowed to take advantage of a wrong done by him and hence second wife is such cases allowed to claim maintenance. Thus the second wife who was kept in dark is considered to be a legally wedded wife for the purpose of maintenance.[24]

INTERIM MAINTENANCE

By the amendment Act 50 of 2001, a second proviso to sub-section (1) of section 125, which provides for interim maintenance was included. Such maintenance may be granted from the date of application.[25]Even before this amendment the SC held that the courts have the power to grant maintenance if it thinks that there are reasons to do so. Even for claiming interim maintenance the wife has to show neglect or refusal by the husband.

Maintenance under the protection of women from domestic violence act 2005

A wife can claim maintenance under section 20 of the PWDVA. The monetary relief given must be “adequate, reasonable and fair and consistent with the standard of living to which theaggrieved woman is accustomed.”[26] For calculation purpose standards prescribed under The Hindu Adoption and Maintenance Act will be followed. Under section 20(3) of the Act either a lump sum amount or monthly payment can be granted.[27]

An order for monetary relief under this section is not substituted by any other order, rather both will be given to the wife. In a recent case[28] before the Bombay High Court the wife had sought monetary relief under the Domestic Violence Act and the husband was already paying maintenance under section 125 of the CrPC, so he objected in paying monetary relief under D.V. Act. The HC on the basis of Section 36 which reads as “The provisions of the D.V. Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force”[29], held that the relief under the D.V. Act will be in addition to the relief granted under CrPC.

Conclusion

As there are different personal laws that govern different group of people, there is no uniformity in the rule of law. Often because of different personal laws, discrimination. Hence there was a need for a uniform rule of law to prevent discrimination on the basis of religion, as some personal laws do not provide for enough maintenance or they do but for a limited period. Hence this provision was created to resolve this problem. This is social welfare legislation, its objective is to prevent women from vagrancy and to provide a speedy remedy to women. In author’s views it effectively fulfils its objective. further it has an overriding effect i.e. even if the personal laws do not provide for maintenance, they can claim maintenance under this section. This provision is available to everyone irrespective of their religion, this makes it an effective law.

[1]Chaturbhuj v. Sitabai, AIR 2008 SC 530.

[2] The Code of Criminal Procedure, 1973, §125.

[3]Sew Kumher v. MongriKumharin, AIR 1959 Cal. 454.

[4]Id.

[5]Mithu Devi v, SiyaChoudhary, 1975 Cri. LJ.

[6] In Re, Hussain Saheb, 1985 Cr LJ 1505.

[7] Umar Hayat Khan v. Mahaboobunnisa, 1976 Cr LJ 395.

[8]DD BASU- CODE OF CRIMINAL PROCEDURE 5^th EDITION.

[9]Rohtash Singh Vs. Smt. Ramendri, AIR 2000 SC 952

[10]ARUNIMA BHATTACHARYA, Women In Live-In Relationships Entitled To Maintenance Akin To Legally-Wedded Wives: Punjab & Haryana HC, available at http://www.livelaw.in/women-live-relationships-entitled-maintenance-akin-legally-wedded-wives-punjab-haryana-hc/

[11]DD BASU- CODE OF CRIMINAL PROCEDURE 5^th EDITION

[12] Supra note 11.

[13]Id.

[14]MalatiSahu v. Khagyodharsahu, u (1991) (2) Crimes 541 (Ori.)

[15] Chand Begam v. Hyderbaig, 1972 CrLJ 1270.

[16] Supra note 8

[17]Ramdayal Vaishya v. Anita Kumari 2004 Crl. 3 3669 (3670) MP.

[18]Chaturbhuj v. Sita Bai, AIR 2008 SC 530

[19]Tejswani v. Arvind tejas Chandra AIR 2010 (NOC) 228.

[20]Ranjit Kaur v. Pavittar Singh 1992 CriLJ 262.

[21]Naurang Singh v. Sapla, AIR 1968 All 412.

[22] Supra note 8.

[23]Badshah v. Urmila BadshahGodse and Another, (2014) 1 SCC 188.

[24]SavitabenSomabhaiBhatiya v. State of Gujarat, (2005) 3 SCC 636.

[25]The Code of Criminal Procedure (Amendment) Act, 2001.

[26] The Protection of Women from Domestic Violence Act, 2005, §20

[27]The Protection of Women from Domestic Violence Act, 2005, §20(3).

[28]NITISH KASHYAP, Order of Maintenance Awarded Under Domestic Violence Act Cannot Be Substituted By Maintenance Under S.125 of CrPC, 17 OCT 2017, Available at http://www.livelaw.in/order-maintenance-awarded-domestic-violence-act-cannot-substituted-maintenance-s-125-crpc-read-judgment/

[29] The Protection of Women from Domestic Violence Act, 2005, §36.