India is a secular country, but the Indian understanding of the concept of secularism is different from the worldwide notion of the term. In India, secularism does not just simply mean that the government does not acknowledge any religion. Rather, it means that the state acknowledges and respects all religions, and allows everyone to follow their own personal laws.
The legal definition of maintenance is the financial support that is paid by one ex-spouse to another pursuant to a legal separation or divorce. This financial support is for the wife’s or the divorced wife’s livelihood, for her children, for the maintenance of the property, and in certain cases, even to unable her to be adequately represented in the lawsuit.
The provisions regarding maintenance are different in different laws. But, there is also secular law of maintenance that is given under section 125 of the Code of Criminal Procedure, 1973. For Hindus their laws of maintenance are provided in their personal laws; for Muslims, it is given in the Muslim Personal Law; and for the Christians and Parsis, in their respective personal laws. At the time, the law of maintenance under CrPC is also given, which is secular in nature, so can be evoked by any person, irrespective of their religion.
OBJECT: The object of this provision is to provide a summary remedy to the dependent wife, children and parents from destitution and to serve a social purpose. The right under these provisions cannot be defeated by anything in the personal law of the parties. Also the object is to frustrate the unscrupulous husbands from making easy divorces under personal law. Wife includes a woman who has not remarried after divorce. The wife needs to be a legally married woman. In the case of illegality due to bigamy, the victim has to suffer and the preparatory goes scot-free.
MAINTENANCE UNDER THE CrPC:
Maintenance under the CrPC is secular in nature, as any women belonging to and practicing any religion or faith can approach the court under this. The law of maintenance is given under the section 125-128 of criminal procedure code, and is civil in nature.
Under these sections maintenance can be claimed by the wife, children and parents. Section 125-128 provide for a speedy, effective and rather inexpensive remedy against persons who neglect or refuse to maintain their dependent wives, children and parents.
DEFINITION OF WIFE [section 125(b)]
The term wife includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. So the provision for maintenance under this section extends to a divorced wife also, and not only a married wife.
This law, though secular, is gender specific in one aspect. Maintenance under this law can only be claimed by the wife, and not by the husband.
According to the Supreme Court judgment in Savitaben Somabhai Bhatiya V. State of Gujarat the term “wife” appearing in section 125(1) means only a legally wedded wife.
But, in the recent judgment of D. Velusamy v. D. Pachaiammal and Virendra Kumar Singh Kushwaha the Supreme Court ruled that in cases where the woman who was in a marriage-like relationship, well though not be considered to be legally wedded wife under section 125, can still claim maintenance under the Protection of Women from Domestic Violence Act, 2005.
ORDER FOR MAINTENANCE OF WIVES AND CHILDREN:
Legal provisions regarding order for maintenance of wives and children under section 125 of the Code of Criminal Procedure, 1973.
The maintenance proceedings is not to punish the person for the past neglect, but to prevent vagrancy leading of the commission of crime and starvation by compelling those who can do so to support those who are unable to support themselves and who have a moral claim to support. The provisions of maintenance of the Code of Criminal Procedure are applicable to persons belonging to all religions and have no relationship with the personal laws of the parties.
Persons entitled to claim maintenance-
According to section 125(1) of the code, the following are entitled to claim maintenance under certain circumstances:
As per section125(1) (a) of the Code, if any person having sufficient means neglects or refuses to maintain his wife, unable to maintain herself, a Magistrate of the first class may, upon proof of such neglect or refusal, other such person to make a monthly allowance for the maintenance of his wife 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.
Here WIFE includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
The wife may be of any age minor or major. Wife for the purpose of the section 125 means a legally married woman. The legality of the marriage would be governed by the personal laws applicable to the parties. If the fact of legally valid marriage is disputed, the applicant will have to prove marriage. A marriage solemnized by exchange of garlands was held invalid.
Under the section 125(1)(a) of the code, maintenance allowance cannot be granted to every wife who is neglected by husband, but can only be granted to the wife who is unable to maintain herself.
In Savitaben Somabhai Bhatiya v. State of Gujarat, it was held that Section 125 of the Code has been enacted in the interest of a wife and one who wants to take the benefit under sub-section (1)(a) of the section 125 has to establish that she is the wife of the person concerned.
The wife is not entitled to receive an allowance from her husband in three cases, i.e.:
If she is living in adultery, or
If she refuses to live with her husband and without any sufficient cause, or
If they are living separately by mutual consent.
In Mohd. Ahmed Khan v. Shah Bano Begum, it is declared that a Muslim husband having sufficient means must provide maintenance to his divorced wife who is unable to maintain herself. Such a wife is entitled to the maintenance even if she refuses to live with the Muslim husband because he has contracted another marriage with within the limits of four wives allowed to him by Quran.
The Bench of the Supreme Court declared that a Muslim divorced woman who cannot maintain herself is entitled to maintenance from her former husband till the time gets remarried.
They rejected the plea that maintenance is payable for the iddat period only. Pointing to the ayats of the Quran, the judges declared that the Quran imposes an obligation to provide maintenance to the divorced wife.
The Supreme Court has held that if there is any conflict between personal law and section 125 of the Code, and then it is clear from the language of Section 125 that it overrules the personal law.
According to section 125(1)(b) of the Code of Criminal Procedure, if any person having sufficient means neglects or refuses to maintain his legitimate or illegitimate minor child, whether married or not, unable to maintain itself or as per section 125(1)(c) of the Code his legitimate or illegitimate child who has attained the majority, where such child is, by reason of any physical or mental abnormality or injury to maintain itself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make monthly allowance for the maintenance of such child, at such monthly rate, as such Magistrate thinks fit, and to pay the same to such person at the Magistrate may from time to time direct.
However, the Magistrate may order the father of a minor female child referred to in Section 125(1)(b) to take 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.
A Muslim minor girl would be entitled to get maintenance from her father even after the enforcement of Muslim Women (Protection of Rights on Divorce) Act, 1986.
FATHER OR MOTHER-
According to section 125(1)(d) of the Code of criminal procedure, if any person having sufficient means neglects or refuses to maintain 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 father or mother, at such monthly rate, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time direct.
The daughter whether married or unmarried would also be liable to maintain the parents as the Indian society casts a duty on the children to maintain the parents and this social obligation equally applies to a daughter.
Section 125 of the Code does not clearly state whether father or mother include adoptive father or adoptive mother or step father or stepmother. According to section 3(20) of the General Clauses Act, 1897, the word father shall include an “adoptive father”, and though the word mother has not been similarly defined, it has been held that the term mother includes “adoptive mother”.
If there are two or more children the parents may seek the remedy against anyone or more of them, at place or places where they live.
As per second proviso to section 125(1) of the Code of Criminal Procedure, during the pendency of the proceeding regarding monthly allowance for the maintenance under section 125(1) of the Code, order such proviso 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.
Further, an application for the monthly allowance for the interim maintenance and expenses for proceeding under the second proviso shall, as far as possible, be deposed of within sixty days from the date of the service of the notice of the application to such person.
ESSENTIAL CONDITIONS FOR GRANTING MAINTENANCE:
Sufficient means to maintain:
According to section 125(1) of the Code of Criminal Procedure, the person from whom maintenance is claimed must have sufficient means to maintain the person or persons claiming maintenance.
If a man is healthy and able-bodied, he must be held to possess the means such as real property or definite employment. The word ‘sufficient means’ should not be confined to the actual pecuniary resources but should have reference to the earning capacity.
Neglect or refusal to maintain:
As per Section 125(1) of the Code of Criminal Procedure, the person from whom maintenance is claimed must have neglected or refused to maintain the person or persons entitled to claim maintenance.
Neglect means a default or omission in the absence of a demand whereas ‘refuse’ means a failure to maintain or a denial of obligation to maintain after demand. A neglect or refusal to maintain may be by words or by conduct. It may be expressed or implied. Neglect or refusal may mean something more than mere failure or omission. Burden of proving neglect is on the claimant.
Where there is duty to maintain, mere failure or omission may amount to neglect or refusal. Maintenance means appropriate food, clothing and lodging.
Person claiming maintenance must be unable to maintain himself or herself:
As the object of Section 125 of the Code is mainly to prevent vagrancy; the requirement to pay maintenance should be only in respect or persons who are unable to maintain themselves.
The inability of the wife to maintain herself is a condition precedent to the maintainability of her application for maintenance.
The maintenance has to be determined in the light of the standard of living of the person concerned. The amount of maintenance should be that the woman should be in a position to maintain her and that it should not be much below that status which she used at the place of her husband.
On failure to maintenance detention in prison could not exceed one month:
A warrant has to be issued under Section 125(3) of the Code for payment of maintenance, when an application is made by the person who has been held entitled to maintenance Section 125 of the Code.
When such a warrant is issued for making payment of maintenance, it has to be levied as the amount due in the manner provided for levying fines and if this warrant is not responded by making the payment, then the Magistrate can order imprisonment which in no case can exceed one month. Therefore, it is immaterial whether there were arrears of twelve month or of any other duration.
All that we have discussed about is Section 125 of the Criminal Procedure Code which deals with the maintenance of Wife, Children and Mother or Father. Here, the maintenance to the wife is given by the husband. But in case of mother and father son as well as a daughter is liable to maintain. Also the Code has specified punishment on the failure to maintain any of the people mentioned under Section 125 which cannot exceed one month.
Student at Y.C. Law College, Pune.