Khushboo Asrani
Section 125 of Criminal Procedure Code specifies the right to maintenance of the parents, children and wife and other provisions regarding the same. The section provides that when any person neglects to maintain his wife, children or parents they can claim maintenance by filing the application to the Magistrate. The Magistrate will bind that person with such monthly rate as he thinks fit.
The whole motive of incorporating this section under CrPC is to protect the deemed vulnerable classes of the hierarchy chain and to maintain their interest.
If you are a woman who is divorced or wishes to divorce her husband, then you are entitled to maintenance. However, one cannot claim maintenance if they are involved in adultery or have been living separately without any reason or if she has remarried after the declaration of divorce.
Husband is also entitled to maintenance if he was the dependant one in the relationship.
Children (includes stepchildren) are entitled to maintenance till the age of 21 or till they achieve financial stability (whichever is earlier)
Parents (including stepparents) are also entitled to maintenance after retirement or after achieving the age of financial dependency (whichever is earlier)
Code of Criminal Procedure, 1973
Short title, extent and commencement:
(1) This Act may be called the Code of Criminal Procedure, 1973.
(2) It extends to the whole of India:
Provided that the provisions of this Code, other than those relating to Chapters VIII, X and XI thereof, shall not apply–
(a) to the State of Nagaland,
(b) to the tribal areas,
but the concerned State Government may, by notification, apply such provisions or any of them to the whole or part of the State of Nagaland or such tribal areas, as the case may be, with such supplemental, incidental or consequential modifications, as may be specified in the notification.
Explanation.– In this section, “tribal areas” means the territories which immediately before the 21st day of January, 1972, were included in the tribal areas of Assam, as referred to in paragraph 20 of the Sixth Schedule to the Constitution, other than those within the local limits of the municipality of Shillong.
(3) It shall come into force on the 1st day of April 1974.
Introduction to CrPC:
The Code of Criminal Procedure commonly called Criminal Procedure Code (CrPC) is the main legislation on procedure for administration of substantive criminal law in India. It was enacted in 1973 and came into force on 1 April 1974. It provides the machinery for the investigation of crime, apprehension of suspected criminals, collection of evidence, determination of guilt or innocence of the accused person and the determination of punishment of the guilty. It also deals with public nuisance, prevention of offences and maintenance of wife, child and parents.
At present, the act contains 484 sections, 2 schedules and 56 forms. The sections are divided into 37 chapters.
Section 125 of CrPC:
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:
[Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct:
Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.]
Explanation.–For the purposes of this Chapter,
(a) “minor” means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is deemed not to have attained his majority;
(b) “wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
(2) Any such allowance for the maintenance or interim maintenance and expenses of proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.
(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each months [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:
Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:
Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.
Explanation.–If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wifes refusal to live with him.
(4) No wife shall be entitled to receive an [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.
(5) On proof that any wife in whose favour an order has been made under this section in living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent.
STATE AMENDMENTS
Madhya Pradesh–
Amendment of Section 125.– In sub-section (1) of section 125 of the Principal Act, for the words “five hundred rupees” the words “three thousand rupees” shall be substituted.
[Vide Madhya Pradesh Act, 10 of 1998, s. 3.]
Madhya Pradesh
Amendment of Section 125.– In section 125 of the principal Act,–
(i) for the marginal heading, the following marginal heading shall be substituted, namely:–
“Order for maintenance of wives, children, parents and grand parents.”
(ii) In sub-section (1), —
(a) after clause (d), the following clause shall be inserted, namely: —
“(e) his grand father, grand mother unable to maintain himself or her self.”;
(b) In the existing para, for the words “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 not exceeding three thousand rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct”, the words 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, mother, grand father, grand 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” shall be substituted;
(c) After the existing first proviso, the following proviso shall be inserted, namely:–
“Provided further that the relatives in clause (e) shall only be entitled to monthly allowance for maintenance if their sons daughters are not alive and they are unable to maintain themselves.”
[Vide Madhya Pradesh Act 15 of 2004, s. 3.]
West Bengal
In Sub-section (1) of section 125 of the Principal Act, —
(1) for the words “five hundred rupees”, the words “one thousand and five hundred rupees” shall be substituted;
(2) after the existing proviso, the following proviso shall be inserted:–
“Provided further that where in any proceeding under this section it appears to the Magistrate that the wife referred to in clause (a) or the minor child referred to in clause (b) or the child (not being a married daughter) referred to in clause (c) or the father or the mother referred to in clause (d) is in need of immediate relief for her or its or his support and the necessary expenses of the proceeding, the Magistrate may, on the application of the wife or the minor child or the child (not being a married daughter) or the father or the mother, as the case may be, order the person against whom the allowance for maintenance is claimed, to pay to the petitioner, pending the conclusion of the proceeding, the expenses of the proceeding, and monthly during the proceeding such allowance as, having regard to the income of such person, it may seem to the Magistrate to be reasonable.”.
[Vide West Bengal Act, 25 of 1992, s. 4.]
West Bengal
In sub-section (1) of section 125 of the principal Act, as amended by the Code of Criminal Procedure (West Bengal Amendment) Act, 1992, the words “not exceeding one thousand and five hundred rupees” the proviso shall be omitted.
Section 126 laying down the Procedure for enforcement of section 125:
(1) Proceedings under section 125 may be taken against any person in any district–
(a) where he is, or
(b) where he or his wife resides, or
(c) where he last resided with his wife, or as the case may be, with the mother of the illegitimate child.
(2) All evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed for summons-cases:
Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper.
(3) The Court in dealing with applications under section 125 shall have power to make such order as to costs as may be just.
STATE AMENDMENT
Andhra Pradesh and Telangana.–
Amendment of section 126–In the Code of Criminal Procedure, 1973 (hereinafter referred to as the principal Act) in section 126, in sub-section (1), for clause (b), the following shall be substituted, namely:–
“(b) where he or his wife resides, or where his parents or children resides, or;”
[Vide Andhra Pradesh Act 18 of 2007, s. 2]
Section 127 stating Alteration in allowance provided under section 125:
(1) On proof of a change in the circumstances of any person, receiving, under section 125 a monthly allowance for the maintenance or interim maintenance, or ordered under the same section to pay a monthly allowance for the maintenance, or interim maintenance, to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration, as he thinks fit, in the allowance for the maintenance or the interim maintenance, as the case may be.]
(2) Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made under section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly.
(3) Where any order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that–
(a) the woman has, after the date of such divorce, remarried, cancel such order as from the date of her remarriage;
(b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order,–
(i) in the case where such sum was paid before such order, from the date on which such order was made;
(ii) in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman;
(c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to [maintenance or interim maintenance, as the case may be,] after her divorce, cancel the order from the date thereof.
(4) At the time of making any decree for the recovery of any maintenance or dowry by any person, to whom a [monthly allowance for the maintenance and interim maintenance or any of them has been ordered] to be paid under section 125, the Civil Court shall take into account the sum which has been paid to, or recovered by, such person 3[as monthly allowance for the maintenance and interim maintenance or any of them, as the case may be, in pursuance of] the said order.
STATE AMENDMENTS
Madhya Pradesh–
Amendment of section 127.–In sub-section (1) of section 127 of the principal Act, for the words “father or mother”, the words “father, mother, grand father, grand mother” shall be substituted.
[Vide Madhya Pradesh Act 15 of 2004, s. 4.]
West Bengal
In the proviso to sub-section (1) of section 127 of the principal Act, for the words “five hundred rupees”, the words “one thousand and five hundred rupees” shall be substituted.
[Vide West Bengal Act 14 of 1995, s. 3.]
West Bengal
In Sub-section (1) of section 127 of the principal Act, the proviso shall be omitted.
[Vide West Bengal Act 33 of 2001, s. 4.]
Section 128 stating Enforcement of order of maintenance under section 125:
A copy of the order of [maintenance or interim maintenance and expenses of proceedings, as the case may be,] shall be given without payment to the person in whose favour it is made, or to his guardian, if any, or to the person to [whom the allowance for the maintenance or the allowance for the interim maintenance and expenses of proceeding, as the case may be,] is to be paid; and such order may be enforced by any Magistrate in any place where the person against whom it is made may be, on such Magistrate being satisfied as to the identity of the parties and the non-payment of the [allowance, or as the case may be, expenses, due].
STATE AMENDMENTS
Andhra Pradesh and Telangana.–
Amendment of section 128.–In section 128 of the principal Act, the expression “where the person against whom it is made, may be,” shall be omitted.
[Vide Andhra Pradesh Act 18 of 2007, s. 3]
Landmark Judgements on Order for maintenance of wives, children and parents:
Strict Proof of Marriage not required u/Section 125 CrPC- Supreme Court
Kamala and ors. v. M.R. Mohan Kumar
The Supreme Court in this recent case has reiterated the settled principle of law that unlike other matrimonial proceedings, a strict proof of marriage is not essential in claim of maintenance under Section 125 of CrPC and that when the parties live together as husband and wife, there is a presumption that they are legally married couple for claim of maintenance under Section 125 CrPC.
The Two-Judge Bench of the Supreme Court in view of the evidence and material available on record allowed the appeal holding that there was a valid marriage between the parties and moreover a strict proof of marriage was not a pre-requisite for claiming maintenance under Section 125 of CrPC. The other observations made by the Apex Court in the case are as under:
The Supreme Court also made reference to it’s judgment in the case of Dwarika Prasad Satpathy v. Bidyut Prava Dixit, wherein it was held that the standard of proof of marriage in a Section 125 proceeding is not as strict as is required in a trial for an offence under Section 494 IPC.
It was also noted in the case that an application under Section 125 does not really determine the rights and obligations of the parties as the section is enacted with a view to provide a summary remedy to neglected wives to obtain maintenance.
The apex Court in the case also remarked that a broad and expansive interpretation should be given to the term “wife” to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time, and strict proof of marriage should not be a precondition for maintenance under Section 125 CrPC, so as to fulfil the true spirit and essence of the beneficial provision of maintenance under Section 125.
Merely because the wife is capable of earning it is not a reason to reduce the maintenance awarded to her
Shailja & Anr. v. Khobanna
In this case, the Supreme Court made a remarkable observation by stating that merely because the wife is capable of earning it is not a reason to reduce the maintenance awarded to her and said that whether a wife is capable of earning and is actually earning are two different factors.
What should be the Quantum of Maintenance?
The Supreme Court answered this question in the case of Kalyan Dey Chowdhury v. Rita Dey Chowdhury Nee Nandy by holding that 25% of the husband’s net salary would be just and proper as maintenance to wife.
The Supreme Court while deciding the review petition made reference to the case of Dr. Kulbhushan v. Raj Kumari & Anr., wherein it was held that 25% of the husband’s net salary would be just and proper to be awarded as maintenance to the respondent-wife.
Other remarkable observations made by the Court in the case were:
- That the amount of permanent alimony awarded to the wife must be befitting the status of the parties and the capacity of the spouse to pay maintenance.
- That maintenance is always dependant on the factual situation of the case and the Court would be justified in moulding the claim for maintenance passed on various factors.
A similar observation has been recently made by the High Court of Kerala in the case of Alphonsa Joseph v. Anand Joseph, wherein the Court remarked that Maintenance to Wife can’t be rejected on ground that she is earning
The High Court thus, while making reference to Apex Court’s judgment in Sunita Kachwaha and ors. V. Anil Kachwaha, noted that even if the wife was earning some amount that may not be a reason to reject her application for maintenance outright.
It was also stated by the High Court that as held by the Apex Court in a catena of decisions, the concept of sustenance does not necessarily mean to live the life in penury and roam around for basic maintenance. The wife is entitled in law to lead a life in the same manner as she would have lived in the house of her husband with respect and dignity.
That the husband is not entitled to contend that he is not prepared to pay any maintenance and the courts are not expected to accept the blatant refusal of the husband with folded hands. If the Family Court decides to deny interim maintenance to the wife or pay a lesser amount than claimed to the minor child, it can only be on legally permissible reasons and not on the strength of a memo filed by the husband.
Maintenance Order under Domestic Violence Act cannot be substituted by Maintenance under Section 125 CrPC- Bombay HC
Prakash Babulal Dangi v. The State of Maharashtra
In this case, the wife had initially claimed maintenance under Section 125 CrPC and the Court had awarded maintenance of Rs. 6000 to the wife and Rs. 4000 to her minor daughter. While the case under Section 125 of CrPC was pending, a case was filed and an interim maintenance was sought by the wife under Domestic Violence Act, whereby the husband was directed to pay maintenance of Rs. 8000 and Rs. 5000 to wife and daughter respectively.
In view of the aforesaid context, the Bombay High Court made reference to Section 36 of Domestic Violence Act, 2015 which entails that the provisions of the Act shall be in addition to, and not in derogation of the provisions of any other law and held that that the amount of maintenance awarded under the Domestic Violence Act cannot be substituted to the order of maintenance under Section 125 of CrPC.
Can Husband Claim Maintenance?
Nivya V.M. v. Shivaprasad N.K.
Yes, a husband can claim maintenance, however, the Courts have time and again remarked that maintenance is to be paid to husband only if he is incapable or handicap. In a recent case of Nivya V.M. v. Shivaprasad N.K., the Kerala High Court dismissed husband’s claim for maintenance from his wife holding that maintenance under Section 24 of Hindu Marriage Act, 1955 is to be paid to the husband only when he is able to prove any incapability or handicap.
The Court also observed that in absence of such circumstances as enumerated above, endowing maintenance on the husband would only promote idleness.
The Court also remarked that a husband seeking maintenance from the wife can be treated only as exceptional case as normally he has got the liability or obligation to maintain the wife and vice versa is only exceptional.
Husband’s Foremost Duty is to Maintain Wife & Child- He may Beg, Borrow or Steal- Punjab & Haryana HC
Rajesh v. Sunita & ors.
The High Court of Punjab & Haryana has held that if the husband fails to pay maintenance then the defaulter i.e. the husband has to suffer imprisonment on each default to pay the maintenance.
The High Court while pronouncing it’s verdict in the case heavily relied on Supreme Court’s verdict in the case of Shantha v. B.G. Shivnanjappa, wherein the Apex Court had observed that the arrears of maintenance which is payable to the respondents is for about 45 months. Sentencing a person to jail is a ‘mode of enforcement’. It is not a ‘mode of satisfaction’ of the liability.
The liability can be satisfied only by making actual payment of the arrears. The whole purpose of sending to jail is to oblige a person liable to pay the monthly allowance, who refuses to comply with the order without sufficient cause, to obey the order and to make the payment.
The purpose of sending him to jail is not to wipe out the liability which he has refused to discharge. Monthly allowance is paid in order to enable the wife and child to live by providing with the essential economic necessities. Neither the neglected wife nor the neglected child can live without funds for purchasing food and the essential articles to enable them to survive. The first and foremost duty of the husband is to maintain the wife and the child. He may beg, borrow or steal.
It was thus concluded by the Court that the maintenance claim has to be construed continuing liability which becomes due at the end of every month. So, the defaulter has to suffer imprisonment on each default to pay the maintenance. On undergoing imprisonment in default of maintenance will not wipe out the liability which shall subsist till the payment is made.
Can a Divorced or Judicially Separated Wife claim Maintenance?
Sanju Devi v. State of Bihar
In this the Supreme Court, the Court rejected High Court’s order whereby the Petitioner was disentitled from maintenance under Section 125 of the Code of Criminal Procedure, 1973 on the ground that the husband and wife had already judicially separated. The Court also remarked that that if a divorced wife is entitled for maintenance then there is no reason why a wife who is judicially separated is not entitled for maintenance.
Maintenance under Section 125 CrPC cannot be denied to a Divorced Wife
Manoj Kumar v. Champa Devi
In the case, the husband had contended that as the decree of divorce had been passed he was under no obligation to pay maintenance to the wife as contemplated under Section 125(4) of CrPC. However, the High Court held that a divorced woman continues to enjoy the status of ‘wife’ for claiming maintenance under Section 125 of CrPC.
Estranged Wife or Live-in-Partner can Claim Maintenance u/Domestic Violence Act- Supreme Court
Lalita Toppo v. State of Jharkhand & anr.
The Three-Judge Bench of the Supreme Court headed by Chief Justice Ranjan Gogoi, in this recent case has categorically held that maintenance can be claimed under the provisions of the Protection of Women from Domestic Violence Act, 2005 (Domestic Violence Act) even if the claimant is not a legally wedded wife and therefore not entitled to claim of maintenance under Section 125 of Code of Criminal Procedure.
The Bench explained that the provisions contained in Section 3(a) of the DVC Act, 2005 which defines the term “domestic violence” also constitutes “economic abuse” as domestic violence. The Court further opined that under the provisions of the Domestic Violence Act, the victim i.e. estranged wife or live-in-partner would be entitled to more relief than what is contemplated under Section 125 of the CrPC i.e. to a shared household also.
Wife living separately from Husband without any reason cannot claim maintenance under Section 125 CrPC
Anil v. Mrs. Sunita
In this case, the wife left her husband’s home and resided at her matrimonial home. In the case, the husband also claimed that he went to bring her wife back but she refused. The wife in the case had claimed maintenance from her husband of Rs. 5000.
The husband in the case claimed that the wife without any sufficient reason was refusing to stay with him and also that she was an advocate and capable of earning and still was demanding maintenance.
In view of the aforesaid facts, the Madhya Pradesh High Court denied maintenance to the wife and observed that in view of the facts of the case, wife resided in her matrimonial home for the first time for 7 days and second time for 12 days and it is alleged that in these 12 days she was harassed.
It is practically impossible that she could have been so harassed that it is impossible for her to live in her matrimonial home. After 12 days she had voluntarily gone with her brother with a view to select a girl for marriage of her brother. Thus, it cannot be held that she was thrown with force from her matrimonial home or she was forced to leave her matrimonial home.
Maintenance u/Section 125 of CrPC- Wife can Maintain Petition at any Place she is Residing
Sachin Gupta v. Rachana Gupta
In the case, the Petitioner has challenged the Trial Court’s order, whereby petitioner’s application objecting Respondent wife’s claim for maintenance under section 125 of CrPC on the ground of territorial jurisdiction has been rejected.
Here it would be relevant to mention that the Respondent had instituted application for maintenance in Delhi and the Petitioner opposed the same on the ground that in all proceedings except in these proceedings the Respondent has mentioned her residential address as Aligarh.
The Respondent on the other hand contended that though Aligarh is her parental home, she was residing in Delhi and had filed the petition in Delhi as she is living with her brother in Delhi.
The High Court of Delhi in dismissed the petition and made the following observations in the case:
The High Court of Delhi referred to Section 126 (1) of CrPC which stipulates that the proceedings under 125 CrPC may be filed in any district where the respondent resides or where his wife resides or where the respondent last resided with his wife, or as the case may be, with the mother of the illegitimate child.
In view of the facts of the instant case, the High Court of Delhi noted that keeping in view of the fact that the wife can maintain a petition at any place where she is residing and the fact that the respondent has placed on record copies of her Aadhar Card, Voter ID Card, which reflect the address of Delhi, the Trial Court did not commit any error in rejecting the application of the petitioner holding that the Trial Court has territorial jurisdiction.
Agreement to Waive Right to Maintenance by Wife is Unenforceable- Bombay HC
Ramchandra Laxman Kamble vs. Shobha Ramchandra Kamble And Anr.
In an interesting judgment, the Bombay High Court has ruled that an agreement wherein the wife waives her right to claim maintenance under section 125 of Code of Criminal Procedure is opposed to Public Policy and hence in unenforceable.
It was also observed by the Court that the consent decrees made by the courts are in effect of nothing but contracts with the seal of the court superadded to them.
Accordingly, if the term of the contract is itself opposed to public policy then, such term, is void and unenforceable. If the term is severable then, only the term can be declared as void. If the term is not severable, then, perhaps, the entire contract may fall.
The Court thus stated that an agreement, in which the wife gives up or relinquishes her right to claim maintenance at any time in the future, is opposed to public policy and, therefore, such an agreement, even if voluntarily entered, is not enforceable.
Daughter is liable to pay maintenance to parents
Dr. Mrs. Vijaya Manohar Arbat vs. Kashirao Rajaram Sawai & anr
An application under section 125(1)(d) of the Code of Criminal Procedure, 1973, by a father claiming maintenance from his married daughter is perfectly maintainable.
There can be no doubt that it is the moral obligation of a son or a daughter to maintain his or her parents. It is not desirable that even though a son or a daughter has sufficient means, his or her parents would starve.
Apart from any law, the Indian Society casts a duty on the children of a person to maintain their parents if they are not in a position to maintain themselves. It is also their duty to look after their parents when they become old and infirm.
The parents will be entitled to claim maintenance against their daughter provided, however, the other conditions as mentioned in the section are fulfilled. Before ordering maintenance in favour of a father or a mother against their married daughter, the court must be satisfied that the daughter has sufficient means of her own independently of the means or income of her husband, and that the father or the mother, as the case may be, is unable to maintain himself or herself.
Stepmother can claim maintenance
Kirtikant D. Vadodaria vs. State of Gujarat and anr
Supreme Court said that stepmother can claim maintenance.
A childless stepmother may claim maintenance from her stepson provided she is widow or her husband, if living, is also incapable of supporting and maintaining her.
Nature of provisions u/s 125 CrPC is social justice legislation
Badshah Vs. Urmila Badshah Godse & Anr
Nature of provisions u/s 125 CrPC is a social justice legislation. Distinct approach should be adopted while dealing with cases u/s 125 CrPC. Drift in approach from “adversarial” litigation to social context adjudication is needed.
Nature of proceeding u/s 125 CrPC is civil
Vijay Kumar Prasad Vs. State of Bihar
The jurisdiction of magistrate under chapter IX Cr PC is not strictly a criminal jurisdiction. Proceedings u/s 125 CrPC are civil in nature
Proceeding u/s 125 CrPC summary in nature
Nagendrappa Natikar Vs. Neelamma
Proceeding u/s 125 CrPC is summary in nature and intended to provide speedy remedy to wife.
Woman not lawfully married not to be treated as ‘wife’ and not entitled to maintenance u/s 125 Cr PC
Savitaben Somabhai Bhatiya Vs. State of Gujarat
The Supreme Court held that the legislature considered it necessary to include within the scope of Sec. 125 an illegitimate child but it has not done so with respect to woman not lawfully married.
As such, however, desirable it may be to take note of the plight of the unfortunate woman, who unwittingly entered into wedlock with a married man the legislative intent being clearly reflected in Sec. 125 of the Cr PC, there is no scope for enlarging its scope by introducing any artificial definition to include woman not lawfully married in the expression ‘wife’.
This may be an inadequacy in law, which only the legislature can undo. Even if it is true that husband was treating the woman as his wife it is really inconsequential. It is the intention of the legislature which is relevant and not the attitude of the party. The principle of estoppels cannot be pressed into service to defeat the provision of Sec. 125 of the Cr PC.
Second wife entitled to maintenance u/s 125 CrPC if the husband had concealed from her the subsistence of his first marriage
Badshah Vs. Urmila Badshah Godse and Anr
Supreme Court said that Second wife is entitled to maintenance under section 125 CrPC if the husband had concealed from her the subsistence of his first marriage.
Where the husband had duped the second wife by not revealing to her the fact of his earlier marriage, it has been held by the Supreme Court that the husband cannot deny maintenance to his second wife u/s 125 CrPC in such a case and he cannot be permitted to take advantage of his own wrong by raising the contention that such second marriage during the subsistence of his first marriage, being void under the Hindu Marriage Act, 1955, the second wife was not entitled to maintenance as she was not his legally wedded wife.
The earlier judgments of the Supreme Court reported in (i) Yamunabai Anantrao Adhav Vs. Anantrao Shivram Adhav, (1988) 1 SCC 530 and (ii) Savitaben Somabhai Bhatiya Vs. State of Gujarat, (2005) 3 SCC 636 supporting the said contention of the husband would apply only in those circumstances where a woman marries a man with full knowledge of subsistence of his first marriage. Second wife thus having no knowledge of first subsisting marriage is to be treated as legally wedded wife for purposes of claiming maintenance.
Bigamous child entitled to maintenance
Bakulabai Vs. Gangaram
Supreme Court said that Even though bigamous marriage is illegal u/s 11 of the Hindu Marriage Act, 1955 but when after such marriage Hindu male and female are living together for a number of years as husband and wife, the child born as a result of such union acquires legitimate status u/s 16(1) of the above Act and such child is entitled to maintenance u/s 125 Cr PC.
Wife and children of a Muslim husband having entered irregular marriage entitled to maintenance u/s 125 CrPC
Chand Patel Vs. Bismillah Begum
Supreme Court said that The bar of unlawful conjunction (jama bain-almahramain) renders a marriage irregular (fasid) and not void (batil). Consequently, under the Hanafi law as far as Muslims in India and concerned, an irregular marriage continues to subsist till terminated in accordance with law and the wife and the children of such marriage would be entitled to maintenance under the provision of Section 125 CrPC.