THIS ARTICLE WAS WRITTEN BY ANUSHKA GANGULI, A STUDENT OF RAJIV GANDHI NATIONAL UNIVERSITY OF LAW.
Section 125 of the Criminal Procedure Code, 1973 talks about maintenance. Maintenance, also called alimony is the financial support that a kin is entitled to incase of desertion. Legislated as a tool for social justice, Section 125 of the Criminal Procedure Code, 1973 provides an effective remedy for neglected persons to seek maintenance. A follower of any religion can apply for maintenance under Section 125 without restriction. An application under Section 125 of the Criminal Procedure Code, be it be by a wife, child or parent, will be entertained only on proof of a certain elements. The applicant needs to prove that the respondent has sufficient means and that he/she has neglected or refused to maintain him/her. In addition, he or she has to prove her inability to maintain himself or herself[i]. Thus, we note that under Section 125, only a wife, child and the mother or father are entitled to claim maintenance.
Aforementioned, the applicant has the right to claim maintenance if he/she is not in a position to support themselves. The potential or ability to earn is not a criterion. Secondly, the burden of proof lies on the claimant to prove that the respondent has sufficient means to support them. Once this is proved, the onus lies on the respondent to prove otherwise. Otherwise, it is deemed to be a presumption[ii].
Section 125 is certainly not an absolute right. Sub clause 4 enumerates exceptions, when the spouse wouldn’t be entitled to any alimony:
- If they are living separately with mutual consent.
- If she is living in adultery.
- Refuses to live with the husband without sufficient reason.
Some of the laws applicable to the matters of maintenance to wives, parents, sons, daughters and other dependents and the Acts covered within the jurisdiction of the Family Courts are the following:
- Family Courts Act, 1984
- Hindu Adoptions And Maintenance Act, 1956
- Protection of Women From Domestic Violence Act, 2005
- Protection of Women From Domestic Violence Rules, 2006
- Hindu Marriage Act, 1955
- Muslim Women (Protection of Rights on Divorce) Act, 1986
- Maintenance Orders Enforcement Act, 1921
- Special Marriage Act, 1954
- Divorce Act, 1869, etc.
Recent Case Laws and developments:
Since Indian Laws are derived primarily from the Common Law system, judicial decisions form an integral part for the development of any legal concept. Following are some significant, recent judicial pronouncements that help us understand the present stance of various Courts in India regarding their conception about maintenance.
- Shamima Faarooqi v. Shahid Khan[iii] (2015)
Appeal from family court.
Facts: Plaintiff was a victim of domestic violence and harassment at her matrimonial home by her husband, Shahid Khan, the defendant. Not only did he demand dowry from her, he brutally assaulted her when his wife inquired to him about his illicit relationship. Disgusted, the woman took shelter at her maternal home and filed for a monthly maintenance of Rs. 4000 from her husband. The defendant, disputing all the averments pertaining to demand of dowry and harassment and further alleged that he had already given divorce to her on 18.6.1997 and has also paid the Mehar to her. A reply was filed to the same by wife asserting that she had neither the knowledge of divorce nor had she received an amount of Mehar. After examination, the family court directed that a sum of Rs.2500/- should be paid as monthly maintenance allowance from the date of submission of application till the date of judgment and thereafter Rs.4000/- per month from the date of judgment till the date of remarriage. The aforesaid order passed by the learned Family Judge came to be assailed before the High Court in Criminal Revision. The High Court took note of the fact that the husband had retired on 1.4.2012 and consequently reduced the maintenance allowance to Rs.2000/-from 1.4.2012 till remarriage of the appellant herein. Being of this view the learned Single Judge modified the order passed by the Family Court. Hence, an appeal was made by special leave, at the instance of the wife.
Held: Section 125 CrPC has been rightly held by the family court and is applicable on a divorced Muslim woman.
- Shamim Bano v. Ashraf Khan
Facts: Shamim Bano and Asraf Khan were married on November 17, 1993 in accordance with the Sharia Law. But Shamim left his house alleging cruelty and torture by him. Even as her application for grant of maintenance was pending, divorce took place on May 5, 1997. A magistrate, while rejecting her plea for maintenance taking into consideration that during the pendency of the case, the couple were granted divorce, directed Khan and other to pay her Rs. 11786 towards mahr to return goods and ornaments and Rs. 1750 towards maintenance only for the iddat period. This was upheld by the Chhatisgarh High Court.
Held: Allowing her appeal against this order, the Supreme Court bench held that Shamim Bano was entitled to maintenance even after divorce. Husband’s liability is not limited to the iddat period. It remitted the matter back to the trial court for fresh disposal in the light of this judgement.
- Badshah v. Sou. Urmila Badshah Godse & Anr (2013)
(Criminal leave petition)
Facts: The petitioner denied his relations with respondent Nos.1 and 2 as his wife and daughter respectively. He alleged that he never entered with any matrimonial alliance with respondent No.1. The respo ndents had stated in the petition that respondent No.1 was married with Popat Fapale. However, in the year 1997 she got divorce from her first husband. After getting divorce from her first husband in the year 1997 till the year 2005 she resided at the house of her parents. On demand of the petitioner for her marriage through mediators, she married him on 10.2.2005 at Devgad Temple situated at Hivargav-Pavsa. Her marriage was performed with the petitioner as per Hindu Rites and customs. After her marriage, she resided and cohabited with the petitioner. Initially for 3 months, the petitioner cohabited and maintained her nicely. After about three months of her marriage with petitioner, one lady Shobha came to the house of the petitioner and claimed herself to be his wife. On inquiring from the petitioner about the said lady Shobha, he replied that if she wanted to cohabit with him, she should reside quietly. Otherwise she was free to go back to her parent’s house. When Shobha came to the house of petitioner, respondent No.1 was already pregnant from the petitioner. Therefore, she tolerated the ill-treatment of the petitioner and stayed along with Shobha. However, the petitioner started giving mental and physical torture to her under the influence of liquor. The petitioner also used to doubt that her womb is begotten from somebody else and it should be aborted. However, when the ill-treatment of the petitioner became intolerable, she came back to the house of her parents. Respondent No.2, Shivanjali, was born on 28.11.2005. On the aforesaid averments, the respondents claimed maintenance for themselves.
Held: It was deduced that the husband kept his second wife in dark regarding his first marriage. It was held that at least for the purpose of Section 125 Cr.P.C., respondent No.1 would be treated as the wife of the petitioner, If this interpretation was not to be accepted, it would amount to giving a premium to the husband for defrauding the wife. Therefore, at least for the purpose of claiming maintenance under Section 125, CrPC, such a woman is to be treated as the legally wedded wife. Leave was not granted.
- Nidhi Jain v. State of UP (2016)
Facts: This case had been filed against the order dated 30.10.2010 passed by the Principal Judge, Family Court, Jhansi, wherein the claim of the plaintiff who filed for maintenance from her husband was turned down. Smt. Nidhi Jain, the revisionist in this case filed a suit for herself and on behalf of her minor sons Shreyash Jain and Aditya Jain, to the effect that her marriage took place with opposite party-Devesh Jain on 10.5.2003 as per Jain rites. Her husband Devesh and his family members were not satisfied with the dowry and they used to misbehave with the applicant. From their wedlock two sons were born. Devesh-opposite party filed a suit for divorce under section 13 of the Hindu Marriage Act, but thereafter matter was compromised and they used to live together as husband and wife. After some time, again, opposite party filed a suit for divorce and tortured her to the extent that it became impossible for the applicant to live in her in-laws house. On 18.8.2009 Smt. Nidhi Jain along with her minor sons were kicked out of the house and since then she was dependent upon her parents. It was also alleged in the application that opposite party was a well-to-do man and was in a capacity to support the revisionist.
Held: Maintenance could not be denied to the wife if she is an earning hand. Wife’s right to claim maintenance can only be denied in the circumstances only as provided under section 125(4) Cr.P.C. Principle is that when prima facie marriage is established, maintenance should be awarded because section 125 Cr.P.C. is intended to curtail destitution and also to ameliorate orphancy. The impugned order, passed by the Principal Judge, Family Court, Jhansi in Case No. 302 of 2009 was set aside.
Source: Indian Kanoon, SCC Online
Maintenance as a Section is one of the most essential ones enacted in view of the Indian context. In a country like ours with dismal literacy rates, deplorable condition of women shackled in their households, it was more than important to take into account the miseries entailed by them and their children in case of desertion by their husbands. It can rightly be termed as an extension of Article 21, that ensured right to a dignified life, which is impossible without monetary support. One of the biggest drawbacks of this law was, that the monthly allowance could not exceed Rs. 500 per person, but this flaw was done away with by an amendment in 2001. The Court then allowed that the sum would be determined according to the needs and status of the aggrieved party. Another commendable progress made by the Apex Court in this regard was in the case of Mrs. Vijaya Manohar Arbat v. Kashirao Rajaram Sawai[iv] wherein it was held that parents are entitled to claim maintenance from their married daughter as well. This added a gender-neutral dimension to the Section. Even a issue-less stepmother has all the right to claim maintenance from her stepchild[v]
Recent case laws and their evaluation definitely show how that the relevance of this section still holds true and shall continue to be one in the years to come. In fact, with increasing divorce cases, the vitality of this law is gaining more importance. The scope of this section has consequently expanded to incorporate evolving needs.
[ii] Shri. Krishna Bahadur Pradhan v. Smt.Tikamaya Newar, 1987 Cr.L.J. 1278 (Gau).
[iii] Criminal Appeal no.-564-565-2015
[iv] AIR 1987 SC 1100
[v] Kirtikant Vadodaria v. State of Gujarat 1996(4) SCC 479.