The Hindu sages emphatically enjoin upon
every person the duty of maintaining the dependant members
of his family. The following are a few of the many texts on the
subject:--
MANU: 'The ample support of those who are entitled to
maintenance is rewarded with bliss in heaven; but hell is the
portion of that man whose family is afflicted with pain by his
neglect: therefore let him maintain his family with the utmost
care.'
NARADA: 'Even they who are born, or yet unborn and
they who exist in the womb, require funds for subsistence;
deprivation of the means of subsistence is reprehended.'
BRIHASPATI: 'A man may give what remains after the food
and clothing of his family, the giver of more who leaves his
family naked and unfed, may taste honey at first, but still
afterwards find it poison.’ ”
The text of MANU as added reads:
"He who bestows gifts on strangers, with a view to
worldly fame, while he suffers his family to live in distress,
though he has power to support them, touches his lips with
honey, but swallows poison; such virtue is counterfeit: even
what he does for the sake of his future spiritual body, to the
injury of those whom he is found to maintain, shall bring him
ultimate misery both in this life and in the next." "where the women are praised and worshiped, there lies the Gods"
(yathra naryasthu pujyanthe, ramanthe, thatra devatha)." (Wife under 125 means legally wedded wife) The phrase “unable to maintain herself” would mean that means available to the deserted wife while she was living with her husband and would not take within itself the efforts made by the wife after desertion to survive somehow.
Under the law, the burden is placed in the first place upon the wife to show that the means of her husband are sufficient. In the instant case, there is no dispute that the appellant has the requisite means. But there is an inseparable condition which has also to be satisfied that the wife was unable to maintain herself. These two conditions are in addition to the requirement that the husband must have neglected or refused to maintain his wife.
(Nature of proceeding is summary in nature and its basically a civil proceeding.) Grant of interim maintenance is an interlocutory order (Mamta v. ashok M. Viadya 1992 Cr LJ2605 (Bom) ) M.A Rahman V. Venkata Ramamma ( 1980 Cr LJ NOC 3 AP) Conversion to islam will not absolve the person from the liability of maintain his wife and children. Bombay High Court
Bhikaiji Maneckji vs Maneckji Mancherji on 26 February, 1907
the conduct and acts of the husband from which the Court may draw the inference of neglect or refusal to maintain the wife. A neglect or refusal by the husband to maintain his wife may be by words or by conduct. It may be express or implied. If there is evidence of cruelty on the part of the husband towards the wife from which, with other evidence as to surrounding circumstances, the Court can presume neglect or refusal
Patna High Court
Rajesh Kochar vs Reeta Kumari on 18 March, 2002
Equivalent citations: 2002 CriLJ 3357
in the instant case, pertinent question was whether Reeta Kumari had surrendered her right of maintenance contemplated within Section 127(3)(c). It was the case of Reeta Kumari that the alleged agreement surrendering her right of maintenance was obtained under duress. Moreover, simply because in the divorce case before the Lucknow Family Court, the party had filed an agreement paper, that in itself will not suggest that Reeta Kumari had voluntarily surrendered right of maintenance to be claimed under Section 125, Cr.P.C. Voluntary surrender had to be substantiated on the basis of evidence on record. The Court held on the basis of evidence that there was no such case of voluntary surrender of the right of maintenance by Reeta Kumari.
Ceilings on maintainance allowance has been abolished : Supreme Court of India
Manoj Yadav vs Pushpa @ Kiran Yadav on 11 January, 2011 after the amendment to Section 125 Cr.P.C., which is a Central Act, by the Code of Criminal Procedure (Amendment) Act, 2001 which deleted the words "not exceeding five hundred rupees in the whole", all State amendments to Section 125 Cr.P.C. by which a ceiling has been fixed to the amount of maintenance to be awarded to the wife have become invalid. Nanak Chand vs Shri Chandra Kishore Agarwala on 20 May, 1969
Equivalent citations: 1970 AIR SC 446 section provides a summary remedy and is applicable to all persons belonging to all religions and has no relationship with the personal law of the parties. Nandlal Misra vs K. L. Misra on 1 April, 1960
Equivalent citations: 1960 AIR 882 The relief given under this Chapter is essentially of civil nature. It prescribes a summary procedure for compelling a man to maintain his wife or children. The findings of a magistrate under this Chapter are not final and the parties can legitimately agitate their rights in a civil court. This Chapter is a self-contained one. It recognizes the right of a child or wife to claim maintenance. It prescribes the procedure to be followed and provides for the enforcement of the decision of the magistrate. Delhi High Court
Mohd. Shakeel vs Smt. Shaeehna Parveen, And Others on 6 November, 1986 maintenance to the wife which is her right and who has been able to establish it under S. 125 Cr.P.C. cannot be denied merely because the husband has obtained a decree for restitution of conjugal rights against her. The two proceedings, one under S. 125 Cr.P.C. and the other under the respective personal laws of the spouses operate in different spheres though in a very limited area, they do overlap. Generally, they are intended to serve different purposes.The aim and object of this provision under section 125 and other provisions in Chap. IX of the Code is to help the weaker of the two to obtain assistance of the Code in getting maintenance. Discarded or helpless wives, deserted children and destitute parents can get much relief by invoking S. 125 of the Code. In Captain Ramesh Chander Kaushal v. Veena Kaushal and Ors. [AIR 1978 SC 1807], Supreme Court held that Section 125 is a reincarnation of Section 488 of the Cr.P.C. of 1898 except for the fact that parents have also been brought into the category of persons entitled for maintenance. It observed that this provision is a measure of social justice specially enacted to protect, and inhibit neglect of women, children, old and infirm and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. Speaking for the Bench Justice Krishna Iyer observed that- "We have no doubt that sections of statutes calling for construction by courts are not petrified print but vibrant words with social functions to fulfill. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it is to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advance the cause- the cause of the derelicts." Supreme Court of India
Chaturbhuj vs Sita Bai on 27 November, 2007
The object of the maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves and who have a moral claim to support. The phrase "unable to maintain herself" in the instant case would mean that means available to the deserted wife while she was living with her husband and would not take within itself the efforts made by the wife after desertion to survive somehow.In an illustrative case where wife was surviving by begging, would not amount to her ability to maintain herself. It can also be not said that the wife has been capable of earning but she was not making an effort to earn. Whether the deserted wife was unable to maintain herself, has to be decided on the basis of the material placed on record. Where the personal income of the wife is insufficient she can claim maintenance under Section 125 Cr.P.C. The test is whether the wife is in a position to maintain herself in the way she was used to in the place of her husband.
In Bhagwan v. Kamla Devi (AIR 1975 SC 83) it was observed that the wife should be in a position to maintain standard of living which is neither luxurious nor penurious but what is consistent with status of a family. The expression "unable to maintain herself" does not mean that the wife must be absolutely destitute before she can apply for maintenance under Section 125 Cr.P.C.
No strict proof of performance of marriage is required:-
In Mohabbat Ali Khan v. Mohd. Ibrahim Khan MANU/PR/0068/1929 : AIR 1929 PC 135 the Privy Council has laid down that the law presumes in favour of marriage and against concubinage when a man and woman have cohabited continuously for number of years.
In Gokal Chand v. Parvin Kumari MANU/SC/0077/1952 : AIR 1952 SC 231, Supreme Court held that continuous cohabitation of man and woman as husband and wife may raise the presumption of marriage, but the presumption which may be drawn from long cohabitation is rebuttable and if there are circumstances which weaken and destroy that presumption, the Court cannot ignore them
Dwarika Prasad Satpathy vs Bidyut Prava Dixit And Another on 14 October, 1999
Supreme Court held that no strict proof of performance of marriage is required if the claimant prima facie satisfied the Court that claimant and her husband lived as husband and wife . The Court also observed that the standard of proof of marriage in proceedings under Section 125(1) of CrPC is not as strict as required in trial of offences under Section 494 of the Indian Penal Code.
It is to be remembered that the order passed in an application under Section 125 Cr.P.C. does not finally determine the rights and obligations of the parties and the said section is enacted with a view to provide summary remedy for providing maintenance to a wife, children and parents.
Supreme Court opined that if the claimant in proceedings under Section 125(1) of CrPC succeeds in showing that she and the respondent have lived together as husband and wife, the court can presume that they are legally wedded spouse, and in such a situation, the party who denies the marital status can rebut the presumption.
That once it is admitted that the marriage procedure was followed then it is not necessary to further probe into whether the said procedure was complete as per the Hindu Rites in the proceedings under Section 125(1) of CrPC. From the evidence which is led if the Magistrate is prima facie satisfied with regard to the performance of marriage in proceedings under Section 125(1) of CrPC which are of summary nature strict proof of performance of essential rites is not required. ( view reiterated in Kamala Vs. M.R. Mohan Kumar Decided On: 24.10.2018)
ANIRBAN GHOSH vs SANCHITA GHOSH on 03.12.2019.
SC actually enhanced order of maintenance to daughter with regard being had to her age. So age may be a factor in enhancement of maintenance. "Since the daughter is stated to be aged about 16 years, in modification of Order of this Court dated 05.10.2018, we direct the appellant to pay the maintenance of Rs.20,000/- (Rupees Twenty Thousand) per month to the daughter, instead of Rs.15,000/- as ordered earlier, in the same manner, either by way of RTGS or by way of Demand Draft/Cheque, until further orders from this Court." Shailja & Anr. v. Khobanna Criminal Appeal Nos. 125-126 of 2017 (Special Leave Petition (Crl.) Nos. 6025-6026 of 2013) 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.
Supreme Court - Daily Orders
Sanju Devi vs The State Of Bihar on 6 December, 2017
An argument was submitted by learned counsel for the respondent – husband that there is already a decree of judicial separation and in view of Section 125(4) of the Code of Criminal Procedure, 1973, the petitioner is not entitled to any maintenance. Supreme court noted this argument only to reject it since it find no substance in this argument. If a divorced wife is entitled for maintenance there is no reason why a wife who is judicially separated is not entitled for maintenance.
Sukhjinder Singh Saini vs Harvinder Kaur (Delhi High Court judgment) CRL.REV.P. 494/2015 and Crl.M.A.No. 11437/15, decided on November 10, 2017 That it is a settled principle of law that both the parents have a legal, moral and social duty to provide to their child the best education and standard of living within their means.
That the mere fact that the spouse with whom the child is living is having a source of income, even if sufficient, would in no way absolve the other spouse of his obligation to make his contribution towards the maintenance and welfare of the child.
That monetary relief can be granted to meet the expenses incurred and losses suffered by the aggrieved person and the child of the aggrieved person as a result of the domestic violence. Prakash Babulal Dangi v. The State of Maharashtra on 10 October, 2017 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 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. ( Even though this judgment was stayed by the Supreme Court yet it did not hold the grant of maintenance to be granted to wife under domestic violence act)
Manoj Kumar v. Champa Devi, Special Leave to Appeal (Crl.) No(s).10137/2015 The Supreme Court, upholding an order of the Himachal Pradesh High Court, granted maintenance to a divorced wife who had deserted her husband. Her husband had obtained divorce on the ground of desertion, and opposed her maintenance petition on the strength of an exception under Sec. 125(4) of the Criminal Procedure Code. This subsection states that a woman is not entitled to maintenance if she refuses to cohabit with her husband without any reasonable cause. Reiterating its earlier position, the Court stated that a divorced wife also falls within the purview of Sec. 125 CrPC, and is thus entitled to maintenance. Anil S/o Shri Suganchandra Jain vs. Smt. Sunita W/o Shri Anil Kumar Jain [Criminal Revision No. 829 of 2014; decided on 29 November 2016]. In the factual matrix of this case, the wife left her husband’s home and resided at her matrimonial home. The husband 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 this context, 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. in the case of Badri Prasad v. Dy. Director of Consolidation & Ors. [(1978) 3 SCC 527], the Supreme Court held that a strong presumption arises in favour of wedlock where the partners have lived together for a long spell as husband and wife.
Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of legal origin.
In Tulsa and Ors. v. Durghatiya & Ors. [2008 (4) SCC 520], this Court held that where the partners lived together for a long spell as husband and wife, a presumption would arise in favour of a valid wedlock.
In Vimala (K) v. Veeraswamy (K) [(1991) 2 SCC 375], a three-Judge Bench of this Court held that Section 125 of the Code of 1973 is meant to achieve a social purpose and the object is to prevent vagrancy and destitution. Explaining the meaning of the word `wife' the Court held:
"...The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. When an attempt is made by the husband to negative the claim of the neglected wife depicting her as a kept-mistress on the specious plea that he was already married, the court would insist on strict proof of the earlier marriage. The term `wife' in Section 125 of the Code of Criminal Procedure, includes a woman who has been divorced by a husband or who has obtained a divorce from her husband and has not remarried. The woman not having the legal status of a wife is thus brought within the inclusive definition of the term `wife' consistent with the objective... " Supreme Court of India
Chanmuniya vs Virendra Kumar Singh Kushwaha & ... on 7 October, 2010
in those cases where a man, who lived with a woman for a long time and even though they may not have undergone legal necessities of a valid marriage, should be made liable to pay the woman maintenance if he deserts her. The man should not be allowed to benefit from the legal loopholes by enjoying the advantages of a de facto marriage without undertaking the duties and obligations. Any other interpretation would lead the woman to vagrancy and destitution, which the provision of maintenance in Section 125 is meant to prevent.
Second Wife can also Claim Maintenance u/ Section 125(1) of CrPC
Badshah vs Sou. Urmila Badshah Godse & Anr.– In this case, the marriage between the petitioner and respondent was solemnized; respondent co-habited with the petitioner after the said marriage a child was begotten out of the said co-habitation, whose biological father was the petitioner. The crux of the matter lies in the fact that at the time when the petitioner married the respondent, he had a living wife and the said marriage was still subsisting. Thus, the issue that fell for consideration before the Supreme Court was whether in such circumstances, the respondent could filed application under Section 125(1) of CrPC?
The Supreme Court in the case while ruling in favour of the respondent opined that the provision of maintenance would definitely fall in this category which aims at empowering the destitute and achieving social justice or equality and dignity of the individual. While dealing with cases under this provision, drift in the approach from “adversarial” litigation to social context adjudication is the need of the hour.
The Court held that an expansive and purposive interpretation needs to be given to the provisions of Section 125(1) of CrPC.
The Apex Court remarked that while dealing with the application of destitute wife or hapless children or parents under this provision, the Court is dealing with the marginalized sections of the society. The purpose is to achieve “social justice” which is the Constitutional vision, enshrined in the Preamble of the Constitution of India. Preamble to the Constitution of India clearly signals that we have chosen the democratic path under rule of law to achieve the goal of securing for all its citizens, justice, liberty, equality and fraternity. It specifically highlights achieving their social justice. Therefore, it becomes the bounden duty of the Courts to advance the cause of the social justice. While giving interpretation to a particular provision, the Court is supposed to bridge the gap between the law and society. The Court as the interpreter of law is supposed to supply omissions, correct uncertainties, and harmonize results with justice through a method of free decision—“libre recherché sceintifique” i.e. “free Scientific research”. We are of the opinion that there is a non-rebuttable presumption that the Legislature while making a provision like Section 125(1) of CrPC to fulfill its Constitutional duty in good faith, had always intended to give relief to the woman becoming “wife” under such circumstances. Gauhati High Court
Sri Sabita Deka vs Shri Babul Deka on 4 September, 2017
In this case, a proceeding, under Section 125(1) of CrPC, was initiated by the petitioner against the present respondent claiming monthly maintenance allowance from the respondent. According to the petitioner wife, the respondent married her by executing a registered agreement at Guwahati, and, after the agreement was executed, he had put vermilion on her forehead accepting her as his wife in presence of village people.
However, the respondent contested the proceeding by denying the marriage and claiming that the present petitioner is not his wife and was not entitled to any maintenance allowance.
The High Court of Gauhati held that the fact of marriage was substantiated by the fact that respondent had put vermilion on the forehead of the petitioner, meaning thereby, that he had married her.
The High Court also made reference to Apex Court’s verdict in the case of Savitaben Somabhai Bhatiya v. State of Gujarat & ors.[6] wherein it was held that by putting vermilion on the forehead of the petitioner by the respondent, the marriage procedure was followed, and as such, it was not necessary for the petitioner to prove further as to whether the said procedure was completed as per Hindu rites, in a proceeding under Section 125(1) of CrPC.
Ganesh v. Sudhirkumar Srivastava and Ors., Civil Appeal No. 4031-4032 of 2019 (in my view judgment of supreme court in this case is wrong) In the present matter, the parties had entered into divorce through mutual consent. One of the terms of the settlement between the parties was that the applicant i.e. the mother has released the right of monthly maintenance to the daughter with the non-applicant i.e. father. The applicant has fully accepted responsibility for the child’s livelihood, education and health.
The Supreme Court though accepted the terms of settlement, it expressed its disapproval with reference to the aforesaid term. The Court stated that it was certainly open to the wife to give up any claim so far as maintenance or permanent alimony or stridhan but she could not have given up the rights which vest in the daughter insofar as maintenance and other issues are concerned.
Taking the aforesaid view, the Apex Court while exercising it’s powers under Article 142 of the Constitution of India, set-aside the impugned clause of the Consent Terms. Bombay High Court, in the matter of Ramchandra Laxman Kamble vs Shobha Ramchandra Kamble and Anr, Writ Petition No 3439 of 2016, while dealing with the right to maintenance under Section 125 CrPC, had held that even if the wife gave up or relinquished her right to claim maintenance, at any time in the future, it was opposed to public policy and therefore such an agreement, even if voluntarily entered into, would not be enforceable.
In the matter of Ranjit Kaur vs Pavittar Singh, 1992 CriLJ 262, a division bench of Punjab and Haryana High Court had to decide whether a wife who had voluntarily surrendered her right to maintenance in divorce proceedings, would not be entitled to claim subsequently maintenance allowance under Section 125 of the Code of Criminal Procedure. The court held:
“That right under S125 is a statutory right which the legislature has framed irrespective of the nationality, cast or creed of the parties. The statutory liability imposed by this Section is, therefore, distinct from the liability under any other law. Thus, where it is proved to the satisfaction of the Court that there is a refusal or neglect on the part of the husband to maintain his wife, children or parents, none of them can be deprived of the maintenance. This right being a right to survival or livelihood essentially survives and lives every moment of life of the person entitled to be maintained. Therefore, this statutory right of a wife to maintenance cannot be bartered, done away with or negatived by the husband by setting up an agreement to the contrary. Such an agreement in addition to it being against public policy would also be against the clear intendment of this provision. Giving effect to an agreement which over-rides this provision of law, would tantamount to not only giving recognition to something which is opposed to public policy but would also amount to negation of it."
Though the phrase "public policy" or "opposed to public policy" has neither been defined in the Contract Act nor anywhere else, yet by now in the light of various authoritative pronouncements of different Courts, including the final one, (Central Inland Water Transport Corporation Ltd. v. Tarun Kanti Sengupta, AIR 1986 SC 1571), it has come to acquire a definite meaning. It connotes some matter which concerns the public good and the public interest. In any case, it can broadly stated to be equivalent to the policy of law. Therefore, giving effect to an agreement which overrides this provision of law, that is, Section 125, Code of Criminal Procedure, would tantamount to not only giving recognition to something which is opposed to public policy but would also amount to negation of it. The law makes a clear distinction between a void and illegal agreement and a void but legal agreement. In the former case, the legislature penalises it or prohibits it. In the later case, it merely refuses to give effect to it. That is what exactly Section 23 of the Contract Act provides for. We are thus clearly of the opinion that the agreement of the type referred to in the question posed may not per se be illegal but it cannot be given effect to being a negation of the statutory right as provided for in this section and being opposed to public policy. In an authoritative pronouncement of the Apex Court in Bai Tahira v. Ali Hussain Fissalli Chothia, AIR 1979 SC 362 : (1979 Cri LJ 151). The facts of the case were that in a suit relating to a flat in which the husband had housed the wife resulted in a compromise decree which also settled the marital disputes. The decree recited that the respondent had transferred the suit premises, namely, a flat in Bombay, to the appellant and also the shares of the Co-operative Housing Society which built the flat concerned. There was a reference to mehar money (Rs. 5,000/- and 'iddat' money Rs. 180) which was also stated to have been adjusted by the compromise terms. There was a clause in the compromise:
"The plaintiff declares that she has now no claim or right whatsoever against the defendant or against the estate and the properties of the defendant,"
Later, during the course of proceedings initiated by the wife under Section 125 of the Code, one of the contentions raised to defeat her claim related to the above noted contractual arrangement as recorded in the consent decree. The Supreme Court negatived the contention with the following observations (paras 10 and 12 of AIR 1979 SC 362) :--
"No settlement of claims which does not have the special statutory right of the divorce under Section 125 can operate to negate that claim."....
Whether woman having live-in-relationship with married man is entitled to get maintenance?
In D. Velusamy v. D. Patchaiammal, MANU/SC/0872/2010 : the Hon'ble Apex Court, while looking into the question whether the appellant-husband therein would be entitled to maintain the respondent-wife, gave certain findings with regard to holding a live in relationship to be valid that is, if the couple held themselves out to society as being akin to spouses; they must be of legal age to marry; they must be otherwise qualified to enter into a legal marriage, including being unmarried; and they must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time. What is noteworthy in this judgment is the opinion that the parties must be otherwise qualified to enter into a legal marriage. In the case of Badri Prasad v. Dy. Director of Consolidation and Others, MANU/SC/0004/1978 : 1978 (SLT Soft) 149 : MANU/SC/0004/1978 : 1978 AIR (SC) 1557, the Hon'ble Apex Court held that there was a presumption in favour of wedlock and that law leaned in favour of legitimacy and frowned upon bastardy in a situation where the parties had been in live in relationship for about 50 years. In Lata Singh v. State of U.P. [AIR 2006 SC 2522] it was observed that a live-in relationship between two consenting adults of does not amount to any offence even though it may be perceived as immoral. However, in order to provide a remedy in Civil Law for protection of women, from being victims of such relationship, and to prevent the occurrence of domestic violence in the society, first time in India, the DV Act has been enacted to cover the couple having relationship in the nature of marriage, persons related by consanguinity, marriages etc. We have few other legislations also where reliefs have been provided to woman placed in certain vulnerable situations. Supreme Court of India
Indra Sarma vs V.K.V.Sarma on 26 November, 2013 Hon'ble Apex Court went into the question whether a "live in relationship" would amounts to a "relationship in the nature of marriage", falling within the definition of "domestic relationship" under Section 2(F) of the Protection of Women from Domestic Violence Act, 2005 and whether the failure to maintain a women involved in such a relationship amounts to "domestic violence" within Section 3 of the DV Act. The Hon'ble Apex Court, delineated upon the definition of "domestic relationship", "domestic violence", "marriage", as well as "relationship in the nature of marriage" and on the basis of discussion culled out some guidelines for testing under what circumstances a live in relationship would fall within the expression "relationship in the nature of marriage" as under:
"We may, on the basis of above discussion cull out some guidelines for testing under what circumstances, a live-in relationship will fall within the expression "relationship in the nature of marriage" under Section 2(f) of the DV Act. The guidelines, of course, are not exhaustive, but will definitely give some insight to such relationships.
(1) Duration of period of relationship
Section 2(f) of the DV Act has used the expression "at any point of time", which means a reasonable period of time to maintain and continue a relationship which may vary from case to case, depending upon the fact situation.
(2) Shared household
The expression has been defined under Section 2(s) of the DV Act and, hence, need no further elaboration.
(3) Pooling of Resources and Financial Arrangements Supporting each other, or any one of them, financially, sharing bank accounts, acquiring immovable properties in joint names or in the name of the woman, long term investments inbusiness shares in separate and joint names, so as to have a long standing relationship, may be a guiding factor.
(4) Domestic Arrangements
Entrusting the responsibility, especially on the woman to run the home, do the household activities like cleaning, cooking, maintaining or upkeeping the house, etc. is an indication of a relationship in the nature of marriage.
(5) Sexual Relationship
Marriage like relationship refers to sexual relationship, not just for pleasure, but for emotional and intimate relationship, for procreation of children, so as to give emotional support, companionship and also material affection, caring, etc.
(6) Children
Having children is a strong indication of a relationship in the nature of marriage. Parties, therefore, intend to have a long standing relationship. Sharing the responsibility for bringing up and supporting them is also a strong indication.
(7) Socialization in Public
Holding out to the public and socializing with friends, relations and others, as if they are husband and wife is a strong circumstance to hold the relationship is in the nature of marriage.
(8) Intention and conduct of the parties
Common intention of parties as to what their relationship is to be and to involve, and as to their respective roles and responsibilities, primarily determines the nature of that relationship." Can maintenance be rejected because wife is drawing more salary than the husband ? if difference is not at all substantial ? (in the case reproduced below , the argument that wife earns more than husband was rejected by the High Court) Amit Kumar v. Navjot Dubey CR No.6198 of 2013 (Punjab and Haryana High Court)
Decided on: 12.12.2016 "the parties
performed marriage on 10.10.1999 and two children one son and a
daughter born out of their wedlock have been residing with the
respondent – wife. The respondent – wife is working as a teacher in a
government school and the petitioner – husband is working in the office
of S.P. Kandi Township. The wife is drawing salary more than the
husband and there is difference of approximately Rs.10,000/- in the
gross emoluments of the wife viz-a-viz that of the husband. As per the
settled position in law, the wife is entitled to enjoy the same amenities
of life as she would have been had she been staying in the matrimonial
home. Taking into consideration prices of daily necessities of life,
expenses on education of the children who have to meet the challenges
of the society and face peer pressure, I find it difficult to accept
contention of the petitioner that maintenance pendente lite assessed by
the Court below is on higher side and requires reduction." Denial Of Maintenance Is A Continuing Cause Of Action; Claim Not Time Barred After 3 Years ANTHONY JOSE v. STATE OF NCT OF DELHI & ORS W.P.(CRL) 2325/2017 Relying on Supreme Court precedent Arun Vyas Vs. Anita Vyas (1999) 4 SCC 690, the Delhi High court held that matrimonial offences are to be treated as continuing offence under Section 472 CrPC. The Court referred to Section 473 of the CrPC, which enjoins the Court to condone or ignore delay in the interests of justice. The Court referred to Supreme court's decision Vanka Radhamanohari Vs. Vanka Venkata Reddy (1993) 3 SCC 4, which held that while considering question of limitation in complaints of domestic violence, courts should examine the issue from the angle of "interest of justice" under Section 473 CrPC. Because, criminal complaints are filed in matrimonial cases as a last resort most often. Maintenance Claim under Domestic Violece Act Not time barred.
Right to maintenance accrues since inception of marriage:-
Bimla Devi Vs Shamsher Singh (2015) 224 DLT (CN8) 8 where it was observed “Maintenance is a right which accrues to a wife against her husband since the inception of her getting married with him. A moral and legal obligation and duty is cast upon the husband to maintain his wife. The necessary corollary is that from the time the wife starts residing separately from her husband, she can claim maintenance from him”.
NISHA SAIFI vs MOHD SHAHID on 03.04.2019 One has to look at the nature of the maintenance awarded under section 125 Cr.P.C. If the object of section 125 Cr.P.C is to afford subsistence allowance to the wife, who is not able to maintain herself, then the award normally should be from the date of the application”.“For the court to award maintenance from the date of the order there have to be compelling circumstances for the court to take such a view. Maintenance awarded to a wife is not a bounty. It is awarded to her so that she can survive. The fact that time is spent between the date of the application and a final adjudication and an award in favour of the wife, does not mean that she had enough funds to maintain herself. When the trial court comes to conclusion that wife is entitled to an award of maintenance, the assessment in fact relates back to the date of the application. When the assessment relates back to the date of the application then there have to be compelling circumstances for the trial court to restrict the award of maintenance to a period post the date of the application”. maintenance is awarded to a wife so that she can survive and it is not a bounty, normally it should be awarded from the date of the application and for valid reasons, to be recorded, from the date of the order" Ajay Kumar vs. Latha @ Sharuti CRIMINAL APPEAL NO(S). 617 OF 2019 Supreme Court has observed that a brother in law can be ordered to pay maintenance to a widow.
In this case, the lady and her deceased husband were residing at a house which constitutes ancestral Hindu Joint Family Property.The deceased husband and the brother in law jointly carried on a business of a kiryana store.
The woman, filed a complaint under Domestic Violence Act alleging that, after the death of her husband she and her child was not permitted to reside in her matrimonial home. The Trial court passed an interim order granting monthly maintenance in the amount of Rs 4,000 to the woman and Rs 2,000 to the child. The brother in law was directed to pay the said amount. This order came to be affirmed by the High court. Supreme Court observed that substantive part of Section 2(q) indicates that the expression "respondent" means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom relief has been sought. It said
"The proviso indicates that both, an aggrieved wife or a female living in a relationship in the nature of marriage may also file a complaint against a relative of the husband or the male partner, as the case may be.. Section 2(f) defines the expression 'domestic relationship' to mean a relationship where two persons live or have lived together at any point of time in a shared household when they are related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are members living together as a joint family…. All these definitions indicate the width and amplitude of the intent of Parliament in creating both an obligation and a remedy in the terms of the enactment." "Ultimately, whether the requirements of Section 2(f); Section 2(q); and Section 2(s) are fulfilled is a matter of evidence which will be adjudicated upon at the trial. At this stage, for the purpose of an interim order for maintenance, there was material which justifies the issuance of a direction in regard to the payment of maintenance."
A condition for future automatic cost may be imposed for non payment of maintenance:- Mukesh Kumar Grover vs State on 17.06.2019.
Delhi High Court has allowed the husband to avail the concession of bail when he proposed to give some maintenance to wife but it has also imposed a future automatic cost in case of default in maintenance in this case. RAKESH MALHOTRA VERSUS KRISHNA MALHOTRA Criminal Appeal No(s).246-247/2020 The Supreme Court has observed that a petition filed by a wife under Section 125 of the Code of Criminal Procedure who was earlier granted permanent alimony under Section 25 of the Hindu Marriage Act, cannot be entertained.
In this case, the wife's petition seeking divorce was allowed and the appeal against the same was pending before the High Court. The Court, while allowing the divorce petitions, also granted her permanent alimony under Section 25 of the Hindu Marriage Act. In parallel proceedings, the wife also preferred an application for maintenance under Section 125 CrPC. This was dismissed by the magistrate, and the High Court allowed the revision petition against this order.
The issue considered by the Apex Court in appeal thus was whether after grant of permanent alimony under Section 25 of the Act, a prayer can be made before the Magistrate under Section 125 of the Code for maintenance over and above what has been granted by the Court while exercising power under Section 25 of the Act. Supreme Court examined the scope of Section 25 and observed thus:
Section 25(1) of the Act empowers the Court, while passing any decree, to consider the status of the parties and whether any arrangement needs to be made in favour of the wife or the husband; and by way of permanent alimony, an order granting maintenance can also be passed by the Court. At the stage of passing a decree for dissolution of marriage, the Court thus considers not only the earning capacity of the respective parties, the status of the parties as well as various other issues. The determination so made by the Court has an element of permanency involved in the matter. However, the Parliament has designedly kept a window open in the form of subsections (2) and (3) in that, in case there be any change in 5 circumstances, the aggrieved party can approach the Court under sub-section (2) or (3) and ask for variation/ modification. Since the basic order was passed by the concerned Court under Section 25(1), by very nature, the order of modification/variation can also be passed by the concerned Court exercising power under Section 25(2) or 25(3) of the Act.
The judgment in Sudeep Chaudhary vs. Radha Chaudhary [(1997) 11 SCC 286] was relied on by the High Court to grant maintenance to the wife. In the said judgment, the bench noted that, the initial order was passed by the Magistrate under Section 125 of the Code and subsequently in proceedings under the Act, interim maintenance was granted while exercising power under Section 24. It was in that context it was observed that despite the award of maintenance under Section 125 of the Code, the wife was competent to maintain the proceedings under Section 24 of the Act. But the present case is completely to the contrary, observed the bench and said thus:
Since the Parliament has empowered the Court under Section 25(2) of the Act and kept a remedy intact and made available to the concerned party seeking modification, the logical sequittor would be that the remedy so prescribed ought to be exercised rather than creating multiple channels of remedy seeking maintenance. One can understand the situation where considering the exigencies of the situation and urgency in the matter, a wife initially prefers an application under Section 125 of the Code to secure maintenance in order to sustain herself. In such matters the wife would certainly be entitled to have a full-fledged adjudication in the form of any challenge raised before a Competent Court either under the Act or similar such enactments. But the reverse cannot be the accepted norm.
Whether divorced wife who has voluntarily surrendered right to claim maintenaince can claim maintenaince u/s 127 of CRPC on proof of change in circumstances?
Dr. Shahid Rizwan Khan v. Dr. Smt. Masoor CRIMINAL APPLICATION NO. 1588 /2010
From the reading of Section 127, it is clear that on proof of a change in circumstances of a person receiving a monthly allowance for maintenance under Section 125 may seek such alteration before the Magistrate as he thinks fit in respect of the interim maintenance awarded. However, as per sub-section (3) of Section 127 of the Code, a Magistrate has got power to cancel the maintenance awarded in favour of a woman provided divorced woman has re-married and that such divorced woman has received whole of the sum which has been ordered under any customary or personal law applicable to the parties at the time of obtaining divorce and similarly if the wife has voluntarily surrendered her rights to maintenance after her divorce same can be cancelled at the instance of the husband from the date of such divorce. From the reading of Clause (c) of sub-section (3) of Section 127 of the Code, it is clear that if a woman had been granted maintenance under Section 125 of the Code on an earlier occasion and if such woman had voluntarily surrendered to claim maintenance at the time of divorce, based on such voluntarily surrendering of her right, husband may approach the Magistrate for cancellation of the maintenance awarded under Section 125 of the Code, prior to the date of such divorce. But that does not mean that a divorced wife who had voluntarily surrendered rights to maintenance cannot maintain a petition under Section 127 of the Code. Under Section 127 of the Code, even though a divorced women had voluntarily surrendered to claim maintenance from her divorced husband on proof of change in the circumstances, she can maintain a petition under Section 127 of the Code, and as long as the divorced wife has not been remarried and or not living in adultery, husband cannot shirk from his responsibility to maintain a divorced wife. Section 127 can be pressed into service only for cancellation of maintenance ordered in favour of a wife under Section 125 if she had voluntarily surrendered her right to claim maintenance from the divorced husband while obtaining a divorce. But the same cannot be made applicable to a divorced woman who is claiming maintenance considering the changed circumstances in her life.
Can an area where family court has been established , then there Judicial magistrate first class can excercise jurisdiction to pass interim order under section 125 of Cr.PC? The jurisdiction exercised by the Family Court under Section 7(2)(a) of the Family Court Act is the one exercisable by a Judicial Magistrate 1st Class under the Code, wherever a Family Court is established for any area, the jurisdiction of judicial Magistrate 1st Class having territorial jurisdiction over that area ceases (section 8 of Family courts act , 1984) and the Family Court is entitled to exercise the said jurisdiction. No doubt under Section 7(2)(a) of the Family Court Act, what is exercised by the Family Court is the jurisdiction exercisable by the Magistrate under Chapter IX of the Code. Nevertheless it is not a Criminal Court. It is a Civil Court. There is an inherent jurisdiction in a Civil Court to pass ex parte orders and ex parte interim orders in aid of the main relief in order to protect the interest of the party who approaches the Court and/or to protect the subject-matter of the suit, in order to ensure that the relief which the party will be granted in the suit or a proceeding is not rendered infructuous. This issue was further dwelt upon in :- Supreme Court in Smt. Savithri vs. Govind Singh Rawat (1986 Cri LJ 41) "The Magistrate, may, however, insist upon an affidavit being filed by or on behalf of the applicant concerned stating the grounds in support of the claim for interim maintenance to satisfy himself that there is a prima facie case for making such an order. Such an order may also be made in an appropriate case ex-parte pending service of notice of the application subject to any modification or even an order of cancellation that may be passed after the respondent is heard. If a civil Court can pass such interim orders on affidavits there
is no reason why a Magistrate should not rely on them for the purpose of issuing directions regarding payment of interim maintenance. The affidavit may be treated as supplying prima facie proof of the case of the applicant. If the allegations in the application or the affidavit are not true, it is always open to the person against whom such an order is made to show that the order is unsustainable. Having regard to the nature of the jurisdiction exercised by Magistrate under S. 125 of the Code, we feel that the said provision should be interpreted as conferring power by necessary implication on the Magistrate to pass an order directing a person against whom an an application is made under it to pay reasonable sum by way of Interim maintenance subject to the other conditions referred to the pending final disposal of the application. In taking this view we have also taken note of the provisions of S. 7 (2)(a) of the Family Courts Act, 1984 (Act No. 66 of 1984) passed recently by Parliament proposing to transfer the jurisdiction exercisable by Magistrates under S. 125 of the Code to the Family Courts constituted under the said Act."
(Thus, it is clear from the aforesaid decision that the court of the Judicial Magistrate 1st Class and the Family Court exercising jurisdiction under Section 7(2)(a) of the Family Court Act exercisable by the Court of the Judicial Magistrate 1st Class under Section 125 of the Code can grant an interim order of maintenance.) Supreme Court of India
Sudeep Chaudhary vs Radha Chaudhary on 31 January, 1997 The amount awarded under Section 125 of the Cr.P.C. for maintenance was adjustable against the amount awarded in the matrimonial proceedings and was not to be given over and above the same.
In Pandurang v. Babura, 1980 Cri LJ 256 (Bom).. In this case the father was the claimant. The son from whom maintenance was claimed raised a plea that the father had not cared him and his younger brother and had married second time after death of their mother. It was specifically contended that he was brought up by maternal grandfather and then by aunt. The Division Bench of this Court negatived the plea raised by the son and has held that the obligation to maintain an aged, infirm parent, who is unable to maintain himself or herself does not at all depend upon fulfillment of the parental obligation to maintain and bring up the children during the childhood of the children. The son cannot, therefore, ask to be relieved from the statutory obligation on any such moral considerations.
Son can not refuse to pay maintenance to the mother taking a plea that his father is liable to maintain mother? Mahendrakumar Vs. Gulabbai and Ors. Criminal Revn. Appln. No. 272 of 1996 (Bombay high Court)
"the respondent No. 1 (husband) is legally wedded wife of respondent No. 2 (son) but the petitioner (mother), being real son of respondent No. l, cannot successfully absolve himself from his statutory duty towards his mother in the matter of providing monthly allowance for her maintenance if she is found penniless. It is to be noted that when application under Section 125 was filed in the Family Court in 1995, the respondent No. 1 was 58 years old. We are in the beginning of years 2000. Now the respondent No. 1 is approximately 62 years of age. Her husband i.e. respondent No. 2 was 63 years of age on the date of filing of the application for maintenance. Therefore, today, he is approximately, 67 years of age. The respondent No. 2 retired long back as a teacher. He is getting pensionary benefits. It has come in the evidence that he receives monthly pension of Rs. 2,496/-. The petitioner No. 2 is a patient of diabetes and sodalities and, therefore, he requires constant medical treatment. Respondent No. 1 has absolutely no source of income of her own. In the given circumstances, she cannot expect any monetary assistance from her husband i.e. respondent No. 2. Therefore, only remedy available to such a helpless mother is to claim maintenance from her son. It is very unfortunate that an affluent son tries to avoid his moral as well as statutory obligation in the matter of payment of maintenance to his mother on the ground that it is primary duty of respondent No. 2, being husband, to maintain respondent No. 1.If there are two or more children, the parents may seek remedy against anyone or more of them."
High Court of Delhi in Chander Prakash
Bodhraj v. Shila Rani Chander Prakash [AIR 1968 Delhi 174]
wherein it has been opined thus:-
“An able-bodied young man has to be presumed to be
capable of earning sufficient money so as to be able
reasonably to maintain his wife and child and he cannot be
heard to say that he is not in a position to earn enough to be
able to maintain them according to the family standard. It is
for such able-bodies person to show to the Court cogent
grounds for holding that he is unable to reasons beyond his
control, to earn enough to discharge his legal obligation of
maintaining his wife and child. When the husband does not
disclose to the Court the exact amount of his income, the
presumption will be easily permissible against him.” From the aforesaid enunciation of law, it is absolutely
clear that once the husband is an able-bodied young man capable of
earning sufficient money, he cannot simply deny his legal obligation
of maintaining his wife.
It has to be remembered that when the woman leaves
the matrimonial home, the situation is quite different. She is deprived
of many a comfort. Sometimes the faith in life reduces. Sometimes,
she feels she has lost the tenderest friend. There may be a feeling
that her fearless courage has brought her misfortune. At this stage,
the only comfort that the law can impose is that the husband is
bound to give monetary comfort. That is the only soothing legal balm
for which she cannot be allowed to resign to destiny. Shamima Farooqui vs. Shahid Khan JT 2015 (3)
SC 576, wherein it has been held as follows:-
“15. ………Sometimes, a plea is advanced by the husband that
he does not have the means to pay, for he does not have a job or
his business is not doing well. These are only bald excuses and, in
fact, they have no acceptability in law. If the husband is healthy,
able bodied and is in a position to support himself, he is under the
legal obligation to support his wife, for wife’s right to receive
maintenance under Section 125 CrPC, unless disqualified, is an
absolute right. While determining the quantum of maintenance
Court in Jabsir Kaur Sehgal v. District Judge Dehradun & Ors. [JT
1997 (7) SC 531: 1997 (7) SCC 7] has held as follows:-
“The court has to consider the status of the parties, their
respective needs, the capacity of the husband to pay having
regard to his reasonable expenses for his own maintenance
and of those he is obliged under the law and statutory but
involuntary payments or deductions. The amount of
maintenance fixed for the wife should be such as she can
live in reasonable comfort considering her status and the
mode of life she was used to when she lived with her
husband and also that she does not feel handicapped in the
prosecution of her case. At the same time, the amount so
fixed cannot be excessive or extortionate.” Grant of maintenance to wife has been perceived as a
measure of social justice by Court. In Chaturbhuj v. Sita Bai
[JT 2008 (1) SC 78 : 2008 (2) SCC 316], it has been ruled that:-
“Section 125 CrPC is a measure of social justice and is
specially enacted to protect women and children and as
noted by Supreme Court in Captain Ramesh Chander Kaushal v.
Veena Kaushal [1978 (4) SCC 70] falls within constitutional
sweep of Article 15(3) reinforced by Article 39 of the
Constitution of India. It is meant to achieve a social purpose.
The object is to prevent vagrancy and destitution. It provides
a speedy remedy for the supply of food, clothing and shelter
to the deserted wife. It gives effect to fundamental rights and
natural duties of a man to maintain his wife, children and
parents when they are unable to maintain themselves. The
aforesaid position was highlighted in Savitaben Somabhai
Bhatiya v. State of Gujarat [JT 2005 (3) SC 164]”.
This being the position in law, it is the obligation of the
husband to maintain his wife. He cannot be permitted to plead that
he is unable to maintain the wife due to financial constraints as long
as he is capable of earning. Shantha Vs. B.G. Shivananjappa Criminal Appeal No. 673 of 2005 It must be borne in mind that Section 125 Cr. P.C. is a measure of social legislation and it has to be construed liberally for the welfare and benefit of the wife and daughter. It is unreasonable to insist on filing successive applications when the liability to pay the maintenance as per the order passed under Section 125(1) is a continuing liability. Subsequent applications U/S 125 CRPC for recovery of payment of maintenance amount is maintainable if first application was made within limitation. Can a husband can enforce consent decree passed by Lok Adalat in which wife has waived her right to claim maintenance? Ramchandra Laxman Kamble Vs. Shobha Ramchandra Kamble and Ors.Writ Petition No. 3439 of 2016
Decided On: 21.12.2018
The consent decrees made by the courts are in effect of nothing but contracts with the seal of the court super-added 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.
There are several rulings, which take the view 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. The two courts in the present case have basically relied upon such rulings and held that even if it is assumed that the parties had voluntarily agreed to give up their time to claim maintenance from each other, such agreement is opposed to public policy and, therefore, the same is not enforceable, or the same does not bar the maintainability of an application under Section 125 of Cr.P.C. There is no jurisdictional error in the view taken by these two courts so as to warrant interference under Article 227 of the Constitution of India.
Aher Mensi Ramsi v. Aherani Bal Mini Jetha (AIR 2001 Sc 148)
An order of maintenance does not foreclose the remedy under 18(2) of Hindu adoptions and maintenance Act. These are co-existent , mutually complimentary , and in aid and addition to each other.
In Shahnaz Bano d/o Aslam Khan (Smt.) vs. Babbu Khan s/o Nanhekhan Pathan & Another MANU/MH/0440/1985 : 1985 Mh.L.J. 853, learned Single Judge of this Court has held, considering the trend of decisions of different courts in India and the Supreme Court, that he was firmly of the view that even in a case covered by Clause (c) of Section 127 (3) of Cr.P.C., where the wife has surrendered her rights voluntarily, in a given case, if after waiving her rights to maintenance, she becomes vagrant and destitute and is unable to maintain herself, then irrespective of her personal law, she would be entitled to avail statutory remedy for maintenance under Section 125 of Cr.P.C.
In Rameshwar s/o Sandu Kachkure vs. State of Maharashtra & Anr. 2018(4) Mh.L.J. (Cri.), another learned Single Judge of this Court has taken a view that an agreement, by which the wife relinquishes her right to receive maintenance any time in future, is contrary to public policy and consequently unenforceable.
In Tejaswini d/o Anandrao Tayade And Anr. vs. Chandrakant Kisanrao Shirsat And Anr. MANU/MH/0338/2005 : 2005(3) Mh.L.J. 137, another Single Judge of this Court refused to reject an application under Section 125 Cr.P.C. on the ground that wife in the customary divorce deed and consent deed executed by her relinquished her claim for past and future maintenance. To the same effect are the observations of a learned Single Judge of Allahabad High Court in Mahesh Chandra Dwivedi vs. State of U.P. & Anr. MANU/UP/1062/2008 : 2009 All Mr. (Cri.) Journal 182.
In Rajesh R. Nair vs. Meera Babu MANU/KE/0255/2013 : 2013 CRI. L.J. 3153, Division Bench of Kerala High Court has held that an agreement, by which the wife waived her right to claim maintenance, would be a void agreement as against public policy. Such an agreement would amount to ousting of jurisdiction of Magistrate and Family Court to entertain maintenance claim, which cannot be permitted by law. Therefore, the claim for maintenance cannot be rejected on the basis of such agreement of waiver of right to maintenance. Whether woman who is previously married can claim maintenance from her subsequent husband? Yamuna Yamunabai Anantrao Adhav v. Anantrao Shivram
Adhav and Anr. (1988) 1 SCC 530 wherein the Hon’ble Apex
Court, has held that “Section 125 Cr.PC has been enacted in the
interest of a wife, and one who intends to take benefit of the said
Section has to establish the necessary condition, namely, that she
is the wife of the person concerned. The Hon’ble Apex Court while interpreting the
expression “wife” especially while dealing with the case
under Section 125 of the Code has held that the word ‘wife’
used under Section125 Cr.PC of the Code should be
interpreted to mean only “legally wedded wife”. Careful
reading of the Section 125 Cr.PC suggests that wife means
legally wedded wife because while providing provision under
Section 125 Cr.PC, interest of wife who intends to take benefit
under Sub Section 125 (1) (a), has been specifically
protected. Whosoever intends to take benefit of this provision
necessarily needs to establish that she is the wife of the
person concerned, meaning thereby, same can be decided
only by referring to the law applicable to the parties.(Apex Court in Savitaben Somabhai
Bhatiya v. State of Gujarat and Ors., (2005) 3 SCC 636, again reiterated this view) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No.129 of 2007.
Date of Decision: 7.5.2016.
Kamla Devi V. Uttam Chand
petitioner (wife) has miserably failed to prove that she is a legally
wedded wife of the respondent. Hence, she cannot be held
entitled to maintenance in terms of Section 125 Cr.PC. In the
present case, respondent(husband) has been successful in proving that
the petitioner is not a legally wedded wife of the respondent
as earlier marriage was in subsistence , when as
per her own version, she-petitioner had actually started living
with the respondent. It is also proved on record that previous
husband of the petitioner was alive which
undisputed fact persuaded this Court to take a view that the
present petitioner cannot be termed as legally wedded wife
of the respondent, which is a strict requirement of Section 125
Cr.PC .
Supreme Court in case of Kirtikant D. Vadodaria v. State of Gujarat and Anr. MANU/SC/1159/1996 : (1996)4SCC479 and submitted that in the said judgment the Apex Court has held that the stepmother is not entitled for maintenance. The expression "mother" in Section 125(1)(d) of Cr.P.C. means only real or natural mother and does not include stepmother. Stepmother is a distinct and separate entity and cannot be equated with the natural mother who has given birth to the child.In the peculiar facts and circumstances of that case, the Apex Court came to the conclusion that surviving real and natural born sons who are well to do, the stepmother was not entitled to claim maintenance from stepson. In paragraph 15 of the said judgment, the Supreme Court, while dealing with the benevolent provision and ambit of Section 125 of Cr.P.C., observed:
...Consequently to achieve this object a childless stepmother may claim maintenance from her stepson provided she is a widow or her husband, if living, is also incapable of supporting and maintaining her. The obligation of the son to maintain his father, who is unable to maintain himself, is unquestionable. When she claims maintenance from her natural born children, she does so in her status as their 'mother'. Such an interpretation would be in accord with the explanation attached to Section 20 of the Hindu Adoptions and Maintenance Act, 1956 because to exclude altogether the personal law applicable to the parties from consideration in matters of maintenance under Section 125 of the Code may not be wholly justified. However, no intention of legislature can be read in Section 125 of the Code that even though a mother has her real and natural born son or sons and a husband capable of maintaining her, she could still proceed against her stepson to claim maintenance." Factors to decide the amount of maintenance :- Jabsir Kaur Sehgal v. District Judge Dehradun (1997) 7 SCC 7, the Supreme Court laid down the following yardstick for determining the liability as well as the amount of maintenance:
"The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate."
In Nagendrappa Natikar vs Neelamma, AIR 2013 SC 1541, the question was whether a compromise entered into by husband and wife under Order XXIII, Rule 3 of the Code of Civil Procedure (CPC) agreeing for a consolidated amount towards permanent alimony and thereby giving up any future claim for maintenance, accepted by the Court in a proceeding under Section 125 of the Code of Criminal Procedure (CrPC), would preclude the wife from claiming maintenance in a suit filed under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 ? In this case, after the petition was disposed on the basis of compromise, the respondent wife filed a Misc. Application under Section 127, Cr.P.C. before the Family Court for cancellation of the earlier order and also for awarding future maintenance. While the application under Section 127, Cr.P.C. was pending, respondent wife also filed a suit before the Family Court under Section 18 of the Hindu Adoption and Maintenance Act claiming maintenance at the rate of Rs.2,000/- per month. Both the petitions were resisted by the husband stating that the parties had already reached a compromise with regard to the claim for maintenance. The question of maintainability was raised as a preliminary issue. The Family Court held by its order dated 15.9.2009 that the compromise entered into between the parties in a proceeding under Section 125, Cr.P.C. would not be bar in entertaining a suit under Section 18 of the Act. The suit was then finally heard on 30.9.2010 and the Family Court decreed the suit holding that the respondent is entitled to monthly maintenance of Rs.2,000/- per month from the defendant husband from the date of the filing of the suit. The High Court also confirmed the same.
Upholding the judgment, the supreme court pointed out that section 23 of the Contract Act provides that any agreement which is opposed to public policy is not enforceable in a Court of Law and such an agreement is void, since the object is unlawful. The Court held that 'Proceeding under Section 125, Cr.P.C. is summary in nature and intended to provide a speedy remedy to the wife and any order passed under Section 125, Cr.P.C. by compromise or otherwise cannot foreclose the remedy available to a wife under Section 18(2) of the 1956 Act' and observed:
"Section 125, Cr.P.C. is a piece of social legislation which provides for a summary and speedy relief by way of maintenance to a wife who is unable to maintain herself and her children. Section 125 is not intended to provide for a full and final determination of the status and personal rights of parties, which is in the nature of a civil proceeding, though are governed by the provisions of the Cr.P.C. and the order made under Section 125, Cr.P.C. is tentative and is subject to final determination of the rights in a civil court."
Whether husband is liable to pay maintenance to wife and children even if wife is residing in house of husband? Naresh Sharma Vs. Jyoti Sharma
Citation: 2016 CRLJ3113 MP there was no infirmity in the order
passed by the Trial Court primarily because it was not a
case, where the wife has left the house of the husband,
but under the peculiar facts and circumstances of the
case, it is the husband who has left the shared
household, but that would not relieve him from
paying maintenance to his wife and children.
Apparently children were aged 16 and 14 years and in
these days of inflation, schooling is expensive and the
aged father-in-law has also supported the daughter-inlaw,
whereas the husband has lost the suit of divorce
then, under the circumstances, MP High Court held
that wife is entitled to the maintenance as
alleged by the Courts below. When daughter in law is liable to pay maintenance to mother in law under S125 of CRPC? IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)
Criminal Revision Application No. 86 of 2007
Decided On: 06.03.2009
Smt. Saroj W/o Govind Mukkawar V.Smt. Chandrakalabai Polshetwar and The State of Maharashtra
Held, at the time of obtaining appointment on compassionate grounds present applicant gave undertaking to support Respondent No. 1 - Deceased only son of Respondent No. 1 - Respondent No. 1 aged person and has no source of income - Respondent No. 1 entitled to claim maintenance from present Applicant - Revision application dismissed
Mother-in-law, who is aged and has no source of income, is entitled to claim maintenance from her daughter-in-law. (it was in this peculiar fact and circumstances of the case where there was a compassionate appointment obtained and undertaking was made to maintain the mother in law). Concept of palimony:-
In USA the expression `palimony' was coined which means grant of maintenance to a woman who has lived for a substantial period of time with a man without marrying him, and is then deserted by him (see `palimony' on Google). The first decision on palimony was the well known decision of the California Superior Court in Marvin vs. Marvin (1976) 18 C3d660. This case related to the famous film actor Lee Marvin, with whom a lady Michelle lived for many years without marrying him, and was then deserted by him and she claimed palimony. Subsequently in many decisions of the Courts in USA, the concept of palimony has been considered and developed. The US Supreme Court has not given any decision on whether there is a legal right to palimony, but there are several decisions of the Courts in various States in USA. These Courts in USA have taken divergent views, some granting palimony, some denying it altogether, and some granting it on certain conditions. Hence in USA the law is still in a state of evolution on the right to palimony.
Although there is no statutory basis for grant of palimony in USA, the Courts there which have granted it have granted it on a contractual basis. Some Courts in USA have held that there must be a written or oral agreement between the man and woman that if they separate the man will give palimony to the woman, while other Courts have held that if a man and woman have lived together for a substantially long period without getting married there would be deemed to be an implied or constructive contract that palimony will be given on their separation.
The New Jersey Supreme Court in Devaney vs. L' Esperance 195 N.J., 247 (2008) held that cohabitation is not necessary to claim palimony, rather "it is the promise to support, expressed or implied, coupled with a marital type relationship, that are indispensable elements to support a valid claim for palimony". A law has now been passed in 2010 by the State legislature of New Jersey that there must be a written agreement between the parties to claim palimony.
Written palimony contracts are rare, but some US Courts have found implied contracts when a woman has given up her career, has managed the household, and assisted a man in his business for a lengthy period of time. Even when there is no explicit written or oral contract some US Courts have held that the action of the parties make it appear that a constructive or implied contract for grant of palimony existed.
AS TO REFUSAL TO LIVE:-
Supreme Court of India
Saygo Bai vs Chueeru Bajrangi on 19 November, 2010 Apex Court while granting maintenance to the appellant held : - "The finding of the Courts that initially she had left the company and desisted from joining the husband for 4-5 years and, therefore, she would always be disentitled to claim maintenance is clearly erroneous and incorrect. In the wake of the admitted second marriage of the respondent, the appellant would be entitled to claim maintenance and her earlier refusal to join the company of the respondent would be of no consequence whatsoever. In fact from the evidence we find that she had not forsaken the company of her husband without any reason. She was very clear in her evidence that the respondent stopped visiting the matrimonial house after his second marriage. She may not have filed the maintenance application immediately on her being thrown out but she asserted that she had taken such action barely within two years after she was thrown out. She was very clear that she was thrown out on account of the respondent having contracted the second marriage. It is nowhere brought on record that she had left the house without any rhyme or reason. In fact, it would be completely unnatural for her to leave the house leaving her children as is claimed by the respondent. In that backdrop, the claim of the appellant appears to be correct that she was thrown out along with children and it was thereafter that the children were brought by the husband. She was candid enough in admitting that at the time of entering the witness box, it was the second wife who was taking care of the children. This suggested honesty on the part of the appellant. All this evidence was completely ignored. " Delay in claiming maintenance burden of proof :- D.Velusamy vs D.Patchaiammal on 21 October, 2010
When there is a delay to claim maintenance by a long span of years like 12 years . Generally the burden of proof for explaining delay is upon the wife. Daughter is also liable to maintain the parents :- Supreme Court of India
Dr. (Mrs.) Vijaya Manohar Arbat vs Kashi Rao Rajaram Sawai And Anr on 18 February, 1987
"We are unable to accept the contention of the appellant that a married daughter has no obligation to maintain her parents even if they are unable to maintain themselves. It has been rightly pointed out by the High Court that a daugh ter after her marriage does not cease to be a daughter of the father or mother. It has been earlier noticed that it is the moral obligation of the children to maintain their parents. In case the contention of the appellant that the daughter has no liability whatsoever to maintain her parents is accepted, in that case, parents having no son but only daughters and unable to maintain themselves, would go desti- tute, if the daughters even though they have sufficient means refuse to maintain their parents.
After giving our best consideration to the question, we are of the view that section 125(1)(d) has imposed a liability on both the son and the daughter to maintain their father or mother who is unable to maintain himself or her- self. Section 488 of the old Criminal Procedure Code did not contain a provision like clause (d) of section 125(1). The legislature in enacting Criminal Procedure Code, 1973 thought it wise to provide for the maintenance of the parents of a person when such parents are unable to maintain themselves. The purpose of such enactment is to enforce social obligation and we do not think why the daughter should be excluded from such obligation to maintain their parents." Supreme Court of India
Shail Kumari Devi & Anr vs Krishan Bhagwan Pathak @ Kishun B ... on 28 July, 2008 It was held that normally, maintenance should be granted from the date of the application and not from the date of the order. If the Magistrate is inclined to make an order granting maintenance from the date of the order and not from the date of application, he should record reasons to do so. Again, maintenance is a right which accrues to a wife against her husband the minute the former gets married to the latter. It is not only a moral obligation but is also a legal duty cast upon the husband to maintain his wife. Hence, whenever a wife does not stay with her husband and claims maintenance, the only question which the Court is called upon to consider is whether she was justified to live separately from her husband and still claim maintenance from him? If the reply is in the affirmative, she is entitled to claim maintenance. It is, therefore, open to the Magistrate to award maintenance from the date of application and there is nothing which requires recording of `special reasons.while deciding an application under Section 125 of the code, a Magistrate is required to record reasons for granting or refusing to grant maintenance to wives, children or parents. Such maintenance can be awarded from the date of the order, or, if so ordered, from the date of the application for maintenance, as the case may be. For awarding maintenance from the date of the application, express order is necessary. No special reasons, however, are required to be recorded by the Court. In Judgment, no such requirement can be read in sub section (l) of Section 125 of the Code in absence of express provision to that effect. Supreme Court of India
Shahada Khatoon And Ors. vs Amjad Ali And Ors. on 7 April, 1999 The language of Sub-section (3) of Section 125 is quite clear and it circumscribes the power of the Magistrate to impose imprisonment for a term which may extend to one month or until the payment, if sooner made. This power of the Magistrate cannot be enlarged and therefore, the only remedy would be after expiry of one month, for breach of non-compliance of the order of the Magistrate the wife can approach again to the Magistrate for similar relief. By no stretch of imagination the Magistrate can be permitted to impose sentence for more than one month. Supreme Court of India
Smt. Kuldip Kaur vs Surinder Singh And Anr on 3 November, 1988 A distinction has to be drawn between a mode of enforcing recovery on the one hand and effecting actual recovery of the amount of monthly allowance which has fallen in arrears on the other. 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 Be it also realised that a person ordered to pay monthly allowance can be sent to jail only if he fails to pay monthly allowance 'without sufficient cause' to comply with the order. It would indeed be strange to hold that a person who `without reasonable cause' refuses to comply with the order of the Court to maintain his neglected wife or child would be absolved of his liability merely because he prefers to go to jail sentence of jail is no substitute for the recovery of the amount of monthly allowance which has fallen in arrears Monthly allowance is paid in order to enable the wife and child to live by providing with the essential economic wherewithal. Neither the neglected wife nor the neglected child can live without funds for purchasing food and the essential articles to enable them to live. Instead of providing them with the funds, no useful purpose would be served by sending the husband to jail Sentencing to jail is the means for achieving the end of enforcing the order by recovering the amount of arrears. It is not a mode of discharging liability. The section does not say so. The Parliament in its wisdom has not said so commence does not support such a construction. From where does the Court draw inspiration for persuading itself that the liability arising under the order for maintenance would stand discharged upon an effort being made to recover it? The order for monthly allowance can be discharged only upon the monthly allowance being recovered. The liability cannot be taken to have been by sending the person liable to pay the monthly allowance, to jail. (Punjab and Haryana High court has held to issuance of distress warrant as condition precedent to issue order of arrest for non payment of maintenance in Om Prakash v. Vidhya Devi 1992 Cr LJ 658) Orissa High Court
Rajendra Kumar Pradhan vs Smt. Pramila Pradhan on 6 July, 1993
Equivalent citations: 1993 CriLJ 3813 in normal circumstances issuance of distress warrant is a condition precedent for exercise of the power to sentence conferred by that Section It, however, deserves to be noticed and emphasised that even the language of the section does not require that after distress warrant had been issued, the wife should wait till the process visualised by Section 421 comes to an end, because all that the second part of the section requires to become operative is "execution of the warrant". The section has been so worded very rightly, according to us, because if the end of the process (which includes taking of necessary steps by the Collector to realise the amount as arrears of land revenue) were to be awaited, the wife would hardly be able to get the benefit of the order because of the delay Involved and the result would be that the speedy remedy made available by Section 125 to destitutes would be almost rendered nugatory. The high purpose which Section 125 is required to achieve would be lost in the oblivion and the help and succour which the wife or, for that matter, other persons contemplated by Section 125 are entitled to receive through the agency of the Criminal Court would become a marriage. We would further observe that in a case distress warrant may not be insisted upon, if the Court were to be satisfied on the facts of that case that such an exercise would be futile. (salary can be attached for non payment of maintenance but salary cannot be attached for non payment of future maintenance . The warrant for attachment of future salalry of the husband will remain dormant till the end of the month vide S mrudangia v. R. Mrudangia 1990 Cr LJ 639 Ori) Satish v. Yoglata AIR 2009 NOC (Raj) Where a decree for restitution of conjugal rights was passed by a civil court . The Court found that there was no sufficient reason for wife to live separately . The court said that decision of civil court must prevail and existing order of maintenance will become liable to be cancelled. Words living in adultery means continuous adulterous conduct , occasional lapse of virtue are not sufficient to deny maintenance. Furthermore , clause of living in adultery will not apply to a woman who has obtained divorce from the husband or she has remarried. Supreme Court of India
Smt. Vanamala vs Shri H.M.Ranganatha Bhatta on 27 July, 1995
Equivalent citations: 1995 SCC (5) 299 On a plain reading of this Section it seems fairly clear that the expression 'wife' in the said sub-section does not have the extended meaning of including a woman who has been divorced. This is for the obvious reason that unless there is a relationship of husband and wife there can be no question of a divorcee woman living in adultery or without sufficient reason refusing to live with her husband. After divorce where is the occasion for the women to live with her husband? Similarly there would be no question of the husband and wife living separately by mutual consent because after divorce there is no need for consent to live separately. In the context, therefore, sub-section (4) of Section 125 does not apply to the case of a woman who has been divorced or who has obtained a decree for divorce. Supreme Court of India
Rohtash Singh vs Smt. Ramendri And Ors on 2 March, 2000 Under this provision, a wife is not entitled to any Maintenance Allowance from her husband if she is living in adultery or if she has refused to live with her husband without any sufficient reason or if they are living separately by mutual consent. Thus, all the circumstances contemplated by Sub-section (4) of Section 125 Cr. P.C. presuppose the existence of matrimonial relations. The provision would be applicable where the marriage between the parties subsists and not where it has come to an end. Taking the three circumstances individually, it will be noticed that the first circum-stance on account of which a wife is not entitled to claim Maintenance Allowance from her husband is that she is living in adultery. Now, adultery is the sexual intercourse of two persons, either of whom is married to a third person. This clearly supposes the subsistence of marriage between the husband and wife and if during the subsistence of marriage, the wife lives in adultery, she cannot claim Maintenance Allowance under Section 125 of the Code of Criminal Procedure.
The second ground on which she would not be entitled to Maintenance Allowance is the ground of her refusal to live with her husband without any sufficient reason. This also presupposes the subsistence of marital relations between the parties. If the marriage subsists, the wife is under a legal and moral obligation to live with her husband and to fulfil the marital obligations. She cannot, without any sufficient reason, refuse to live with her husband. "Sufficient reasons" have been interpreted differently by the High Courts having regard to the facts of indivisual cases. We are not required to go into that question in the present case as admittedly the marriage between the parties came to an end on account of a decree for divorce having been passed by the Family Court. Existence of sufficient cause on the basis of which the respondent could legitimately refuse to live with the petitioner is not relevant for the present case. In this situation, the only question which survives for consideration is whether a wife against whom a decree for divorce has been passed on account of her deserting the husband can claim Maintenance Allowance under Section 125 Cr. P.C. and how far can the plea of desertion be treated to be an effective plea in support of the husband's refusal to pay her the Maintenance Allowance.
(a difference has to be created between continuous adulterous intercourse during the time of marriage and a new relationship after divorce has been obtained as the later may not be considered to be adultery because matrimonial bonds are dissolved after divorce and so are obligation)
Sanjivani Ramchandra Kondalkar
vs
Ramchandra Bhimrao Kondalkar However , where grounds of divorce are itself adultery Bombay High Court has ruled that such wife will not be entitled to maintenance under 125 Cr.PC. (IN light of conflicting observation Supreme court needs to clarify this position of Rohtash Singh case and take into view the judgments of the high court as well and clear the legal position completely)
Allahabad High Court
Mahesh @ Mahesh Chand vs State Of U.P. & Others on 22 September, 2016 "The term "adultery" is to be understood in the light of the social ideas of the community as being a serious breach of the matrimonial tie. "Living in adultery"- mere friendship with a man does not amount to adultery within the meaning of Section 125 (4) Cr.P.C.. "Living in adultery" means the following of a course of continuous adulterous conduct. While determining the factum of "Living in adultery" the Court must consider evidence on living in quasi-permanent union with man with whom she was allegedly committing adultery. It is for the husband to prove that the wife is continuously committing violation of the marriage bed, indulging in adulterous life, by living in quasi-permanent union with her paramour. In other words, "living in adultery" means an outright adulterous conduct where the wife lives in a quasi permanent union with a man with whom she is committing adultery, shortly before or after the petition for maintenance. It is only when the husband proves satisfactorily beyond reasonable doubt that his wife was living in adultery, she will not be entitled to maintenance and not otherwise. When an allegation of adultery is made against the wife, the Court is bound to enquire into her conduct. In the said enquiry, the husband has to begin his case and the wife must be given an opportunity for adducing evidence to rebut the allegation of "living in adultery." The words "living in adultery" are merely indicative of the principle that a single or occasional lapse from virtue is not a sufficient reason for refusing maintenance. To reiterate the continued adulterous conduct is what is meant by "living in adultery." Maintenance rights of muslim women under 125 Cr.PC in brief (topic belongs to Mohammedan law) :- It is to be noticed that the right of maintenance available to wife from husband is absolute right and even divorce cannot effect this right unless the wife is disqualified on account of remarriage or her sufficient earning. Section 125 of the Criminal Procedure Code has been enacted with a specific purpose to protect women and children and to prevent vagrancy and destitution among them. This law is not community centric or religion centric and perhaps, one of the most secular enactment ever made in the country. It is an instrument of social justice and aims to render justice on the basis of equality to wife in particular, may be divorced including a divorced Muslim wife. Gender justice is a constitutional promise and the provision of maintenance provided under section 125 of the Code is one of the tools to translate the constitutional promise into social reality. Moreover, Article 21 of the Constitution guarantees every person a right to live with dignity and a dignified life is not possible unless a fair and reasonable provision is made by the husband towards the maintenance of his divorced wife. Therefore, while interpreting and applying this beneficial legislation, the Constitutional vision of equality, liberty and justice, more particularly social justice to the women and marginalized sections of society, must be present when the courts are dealing with an application of destitute wife or helpless children and aged and infirm parents. Social justice adjudication or social context adjudication requires application of equality jurisprudence where the parties to a litigation are unequally situated in terms of socio-economic structure and dilution of the technical procedure often followed in adversarial system.
Hon'ble Supreme Court in the case of Shamima Farooqui Vs. Shahid Khan, Criminal Appeal Nos. 564-565 of 2015, decided on 06.4.2015, Hon'ble Supreme Court has held as under:
"A woman, who is constrained to leave the marital home, should not be allowed to feel that she has fallen from grace and move hither and thither arranging for sustenance. As per law, she is entitled to lead a life in the similar manner as she would have lived in the house of her husband. And that is where the status and strata of the husband comes into play and that is where the legal obligation of the husband becomes a prominent one. As long as the wife is held entitled to grant of maintenance within the parameters of Section 125 Cr.P.C., it has to be adequate so that she can live with dignity as she would have lived in her matrimonial home. She cannot be compelled to become a destitute or a beggar." (Bare perusal of Section 20 of the Family Act makes it crystal clear that the provisions of this Act shall have overriding effect on all other enactments in force dealing with this issue.
Thus, from the abovementioned provisions it is quite discernible that a Family Court established under the Family Act shall exclusively have jurisdiction to adjudicate upon the applications filed under Section 125 of Cr.P.C.) Iqbal Bano Vs. State of U.P.& Anr. whereby the provisions contained in Section 125 of the Cr.P.C. have been aptly considered and the relevant portion of the order passed in Iqbal Bano's case reads as under:
"10. Proceedings under Section 125 Cr.P.C. are civil in nature. Even if the Court noticed that there was a divorced woman in the case in question, it was open to it to treat it as a petition under the Act considering the beneficial nature of the legislation. Proceedings under Section 125 Cr.P.C. and claims made under the Act are tried by the same court. In Vijay Kumar Prasad Vs State of Bihar (2004) 5 SCC 196 it was held that proceedings under Section 125 Cr.P.C. are civil in nature." Danial Latifi vs Union of India, AIR 2001 SC 3958 1) A Muslim husband is liable to make a reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3(1)(a) of the Act. 2) Liability of Muslim husband to his divorced wife arising under Section 3(1)(a) of the Act to pay maintenance is not confined to iddat period." In Shabana Bano v. Imran Khan (2010) 1 SCC 666, in a petition for maintenance under section 125, one of the objections raised by the husband was that he has already divorced the wife prior to filing of petition in accordance with Muslim Law and under the provisions of Muslim Women (Protection of Rights on Divorce) Act, 1986 she is not entitled to any maintenance after the divorce and after the expiry of the iddat period. The learned Family Court partly allowed the wife's application directing the husband to pay Rs.2000/- per month as maintenance allowance from the date of institution of petition to the date of divorce, and thereafter to the period of iddat but amount of maintenance thereafter was denied. The order was upheld by the High Court. The question that arose for consideration before the Supreme Court was whether a Muslim divorced wife would be entitled for maintenance from her divorced husband under Section 125 of the Cr.P.C. and, if yes, then through which forum?
The Supreme Court mentioned that the purpose the Family Court Act was essentially to set up family courts for the early settlement of family disputes, emphasizing on conciliation and achieving socially desirable results without adherence to rigid rules of procedure and evidence. The Act seeks to exclusively provide within jurisdiction of the family courts the matters relating to maintenance, including proceedings under Chapter IX of the Cr.P.C. Section 7 of the Family Act deals with Jurisdiction and Section 20 of the Family Court Act makes it crystal clear that the provisions of this Act shall have overriding effect on all other enactments in force dealing with this issue. Therefore, a Family Court established under the Family Act shall exclusively have jurisdiction to adjudicate upon the applications filed under Section 125 of Cr.P.C. Thereafter, the Court referred to the various provisions of the Muslim Women (Protection of Rights on Divorce) Act and quoted with approval the following observation made in Danial Latifi (supra):
"A comparison of these provisions with Section 125, CrPC will make it clear that requirements provided in Section 125 and the purpose, object and scope thereof being to prevent vagrancy by compelling those who can do so to support those who are unable to support themselves and who have a normal and legitimate claim to support are satisfied. If that is so, the argument of the petitioners that a different scheme being provided under the Act which is equally or more beneficial on the interpretation placed by us from the one provided under the Code of Criminal Procedure deprive them of their right, loses its significance. The object and scope of Section 125, CrPC is to prevent vagrancy by compelling those who are under an obligation to support those who are unable to support themselves and that object being fulfilled,..... ."
"Cumulative reading of the relevant portions of judgments of this Court in Danial Latifi, (2001 AIR SCW 3932) (supra) and Iqbal Bano, (2007 AIR SCW 3880) (supra) would make it crystal clear that even a divorced Muslim woman would be entitled to claim maintenance from her divorced husband, as long as she does not remarry. This being a beneficial piece of legislation, the benefit thereof must accrue to the divorced Muslim women.
It is held that even if a Muslim woman has been divorced, she would be entitled to claim maintenance from her husband under Section 125 of the Cr.P.C. after the expiry of period of iddat also, as long as she does not remarry." In Shamima Farooqui v. Shahid Khan AIR 2015 SC 2025, the application of wife for grant of maintenance was resisted by the husband alleging that he had already given divorce to her and has also paid the Mehar to her. The Supreme Court referred with approval the view expressed in Shamim Bano v. Asraf Khan (supra), Shabana Bano v. Imran Khan (supra), Danial Latifi (supra) and Khatoon Nisa v. State of UP (2002) 6 SCALE 165 and laid down that there can be no shadow of doubt that the divorced Muslim woman is entitled to claim maintenance under Section 125, CrPC.In Shamima Farooqui (supra), the Supreme Court referred to the aforesaid observation on the point and held the reduction of 50% in the amount of maintenance made by the High Court is based on no reasoning and is illegal and not sustainable under law. Upholding and restoring the order passed by the learned Family Court, it was observed by the Supreme Court:
"Be it clarified that sustenance does not mean and can never allow to mean a mere survival. A woman, who is constrained to leave the marital home, should not be allowed to feel that she has fallen from grace and move hither and thither arranging for sustenance. As per law, she is entitled to lead a life in the similar manner as she would have lived in the house of her husband. And that is where the status and strata of the husband comes into play and that is where the legal obligation of the husband becomes a prominent one. As long as the wife is held entitled to grant of maintenance within the parameters of Section 125, CrPC, it has to be adequate so that she can live with dignity as she would have lived in her matrimonial home. She cannot be compelled to become a destitute or a beggar."
Kerala High Court
Santhosh vs State Of Kerala- RPFC.No. 34 of 2010 The statutory provisions must lead to the inevitable and unmistakable conclusion that each month's default would be visited with the maximum sentence of one month's imprisonment. The mere fact that the destitute has not chosen to complain every month and has chosen to complain of the breach in respect of plurality of months in one petition within a period of 12 months cannot at all deliver to the defaulter any undeserved advantage. This contention is obviously unacceptable and unsustainable. The Supreme Court was obviously not considering the question whether more than one months imprisonment can be awarded for breach of the direction to pay maintenance committed in respect of more months than one. (a) If there is no payment of maintenance due for ' n' number of months the defaulter in one Execution Petition can be sentenced to imprisonment upto a maximum of 'n' months, provided 'n' does not exceed 12.
(b) If there is breach of payment of maintenance due for one particular month - notwithstanding the fact that such payment was not made for 'n' months from the date on which it became due, the defaulter can be sentenced only to maximum imprisonment for one month and not 'n' months. Even when the breach in respect of one particular month continues for any length of time, the maximum sentence for breach of the liability to pay one month's maintenance continues to be one month only." The decision of the Madhya Pradesh High Court in Durga Singh Lodhi v. Prembai & Ors. (2009 (3) Crimes 90) supports this view. ln that case for non-payment of maintenance the husband was sentenced to imprisonment. He challenged the order on the ground that he had no property. Division Bench considered the question whether a person against whom there is an order under S.125(1) of the Code with no property whatsoever could be sentenced to imprisonment under sub-s.(3) of S.125 of the Code. The Court held that that notwithstanding that husband had no property whatsoever, ".......if, with this visible capacity to earn, he avoids payment, it has to be held that he has so done for no sufficient cause. If such a person avoids to discharge that obligation despite issuance of a distress warrant, he can be sentenced to imprisonment." Bhuwan Mohan Singh vs.Meena: (2015) 6 SCC 353
held that the concept of sustenance does
not necessarily mean to lead the life of an animal, feel like an
unperson to be thrown away from grace and roam for her basic
maintenance somewhere else. She is entitled in law to lead a life in
the similar manner as she would have lived in the house of her
husband. That is where the status and strata come into play, and that
is where the obligations of the husband, in case of a wife, become a
prominent one. In a proceeding of this nature, the husband cannot
take subterfuges to deprive her of the benefit of living with dignity.
Regard being had to the solemn pledge at the time of marriage and
also in consonance with the statutory law that governs the field, it is the obligation of the husband to see that the wife does not become a
destitute, a beggar. it is the duty of the husband to maintain her wife. In BABITA BISHT ..... versus DHARMENDER SINGH BISHT Judgment delivered on: 29.05.2019 Delhi High Court ordered 1/3 of the income of the husband to be given to wife as maintenance. Section 126 In Arthur Flowers v. Minnie Flowers (1910) I.L.R. 32 All. 203 f. b. it was held that a mere temporary sojourn in a place, there being no intention of remaining there, would not amount to residence in that place within the meaning of Section 3 of the Indian Divorce Act, 1869, so as to give jurisdiction under the Act to the Court within the local limits of whose jurisdiction such place is situated. In that case the husband and wife resided in Hyderabad and paid a flying visit to Meerut for a temporary purpose and not with any intention of remaining there, and it was held that the mere casual residence in a place for a temporary purpose with no intention of remaining is not dwelling, and that where a party has a fixed residence outside the jurisdiction, an occasional visit within the jurisdiction will not suffice to confer jurisdiction by reason of residence within the meaning of Section 3 of the Indian Divorce Act. Bamdei v. Jhunni Lal (1926) 27 Cr. L.J. 820 where it was held that the words "last resided" in Section 488 of the Criminal Procedure Code (Now section 126 of the new code) did not contemplate a mere casual residence in a place for a temporary purpose, and that where the husband is employed as a carpenter in the Railway workshops in Lahore and has been residing there continuously for eleven years, a temporary sojourn to Lucknow by him with his wife would not confer on Lucknow Court jurisdiction to entertain an application by the wife for maintenance under that section. In Re: Khairunnissa vs Unknown on 8 July, 1929
where the husband and wife had a fixed place of abode or a permanent place of residence, a casual or temporary residence in any other place would not confer jurisdiction on the Court situate at that place. Punjab-Haryana High Court
Joginder Singh Surmukh Singh vs Smt. Balkaran Kaur on 2 April, 1971 a husband, against whom an ex parte order has been made fixing maintenance allowance, is entitled to reckon the period of limitation of three months from the date of knowledge of' the order for an application made to set aside that order on the ground that he had neither wilfully avoided service nor wilfully neglected to attend the Court and pleads want of the knowledge of the order. Km. Nafees Ara vs Asif Saadat Ali Khan on 25 July, 1962
Equivalent citations: AIR 1963 All 143 An enquiry for grant of maintenance is not a trial and the result of the previous enquiry is neither a conviction nor an acquittal. However, Its not expected that any Magistrate would reconsider the matter without there being some change in the circumstances, to be taken notice of, but that does not mean that a second application is barred, a second application would normally not be allowed on the same facts and in the same circumstances. Delhi High Court
S. Bhupinder Singh Makkar vs Smt. Narinder Kaur And Others on 5 March, 1990
inherent powers of High Court cannot be exercised in such a case where the petitioner had the efficacious remedy of moving the Magistrate concerned under Section 126 of the Code itself for setting aside of the ex parte order. Section 127 Words - "on proof of change in circumstances" (change of circumstances of both husband and wife can be taken into account) Supreme Court of India
Bhagwan Dutt vs Kamla Devi And Anr on 17 October, 1974
There is nothing in these provisions to show that in determining the maintenance and its rate, the Magistrate has to inquire into the means of the husband alone, and exclude the means of the wife altogether from consideration. Rather, there is a definite indication in the language of the associate s. that the financial resources of the wife are also a relevant consideration in making such a determination. Section provides inter alia, that "on proof of a change in the circumstances of any person receiving a monthly allowance, the Magistrate, may make such alteration in the allowance as he thinks fit". The "circumstances" contemplated by section must include financial circumstances and in that view,the inquiry as to the change in the circumstances must extend to a change in the financial circumstances of the wife. Keeping in view the object, scheme, setting and the language of these associate provisions , it seems to be clear that in determining the amount of maintenance the Magistrate is competent to take into consideration the separate income and means of the wife as well as that of husband.
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