Maintenance under S125 CrPC and how the application is made
According to Indian law, maintenance can be provided to specific classes of society such as wife, children, and aged parents. Maintenance is generally allowed by the court to the affected party, just to bear the cost of the basic necessities like food, shelter, medical expenses. S125 of the CrPC is secular in nature. A Follower of any religion can apply to the court for maintenance. The Best Advocates for Maintenance under S125 CrPC explain the entire process.
Maintenance under S125 CrPc
125. Order for maintenance of wives, children, and parents.
(1) If any person having sufficient means neglects or refuses to maintain-
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.
Maintenance under S125 CrPC Person entitled to maintenance
1. Wife – how a wife can apply forÂ Maintenance under S125 CrPC
Under S125 of CrPC, every woman (who has been divorced by or has obtained a divorce from her husband and not remarried) is entitled to claim maintenance. The Best Advocates for Maintenance under S125 CrPC explain how for the applicability of this section it is essential that marriage between the couple is valid one i.e
(a) Both parties must be Hindu.
(b) Customary rites of both the parties must be observed.
(c) Neither party has a living spouse at the time of marriage.
(d) Both the parties are competent for marriage and are not related by sapindas.
The court does not provide maintenance to the second wife. Best Advocates for Maintenance under S125 CrPC state that In the eyes of laws second marriage is null and void if first marriage has not been dissolved.
Same is with the Muslim women. All the essentials of a valid nikah (marriage) must be fulfilled to become eligible to claim maintenance.
How Maintenance under S125 CrPCÂ applies to Live-In
Live-in- relationship is considered in the nature of marriage as per Sec 2 (f) of Domestic Violence Act, 2005. Wife is not entitled to claim maintenance if she lives separately without sufficient reasons. A divorced wife must not be remarried on the date she files an application for maintenance. The Court will allow only if she is unable to maintain herself out of her own earning or from the estate. This factor will affect the quantum of maintenance.
Case law- Mohd. Ahmed Khan v. Shah Bano Begum 1985 it was held that S125 CrPC applies to Muslim wife also. Court said this provision is secular in nature and it applies to everyone. Personal Law Board of Muslim contended that the judiciary is trying to interfere in their matters. Under pressure, Parliament passed the Muslim Women (Protection of Rights on Divorce) Act, 1986 which limited the liability of Muslim man to maintain their wife during iddat period only.
Now it is well settled by Case â€“ Daniel Latifi v Union of India 2001, that Muslim women can claim maintenance from her husband after the iddat period also. Defendants contended that their liability is limited by Section 127 (3) (b) which provides â€śwife is not entitled to maintenance if she has received any customary amount at the time of the marriage. â€ś Court rejecting this contention said that the amount that has been talked about is a wider term and does not include dower. The Muslim male has to make provision for future maintenance during the iddat period.
2. Children – HowÂ children can apply forÂ Maintenance under S125 CrPC
Male and female children, irrespective of whether they are born inside or outside the legally valid marriage of the father and mother, can claim maintenance. They must be minors to claim maintenance. They may be married or unmarried.
Adult children can claim maintenance from their parents only if they have a physical or mental abnormality that makes them unable to maintain themselves. An adult unmarried daughter can claim maintenance from her parents.
3. Parents – How Parents can apply for Maintenance under S125 CrPC
Both natural and adoptive parents are entitled to claim maintenance from their children. Now the liability to maintain is on the daughters also. In the case of a stepmother, she is entitled only if she does not have natural born children.
The Conditions for GrantingÂ Maintenance under Sec 125 CrPc:
The person on whom liability is imposed must have the ability to pay maintenance. It means it must have some source of income or he is employed in some work. It is also essential that claimants must be unable to maintain themselves. The person on whom liability is imposed must have neglected the claimant or refused to pay maintenance.
What is the amount of maintenance that can be given in a case ofÂ Maintenance under Sec 125 CrPc:
Best Advocates for Maintenance under S125 CrPC explain that the appeal under Sec 125 can be heard only by the magistrate (first class). Factors like the income of the person, the standard of living of the claimant, separate earning if any is taken into consideration while granting maintenance. The maintenance must aid in ensuring the same standard of living for the claimant.
Maintenance is payable either from the date of an order of payment or from the date of application for maintenance, depending on the courtâ€™s judgment of the cooperation and decent behavior demonstrated by the parties.
Where canÂ Maintenance under Sec 125 CrPcÂ Proceedings be Filed?
Best Advocates for Maintenance under S125 CrPC state that a wife can file maintenance proceedings in any place where:
(a) Where the husband resides; or
(b) Where wife resides; or
(c) Where husband is physically present at the particular point of time; or
(d) Where husband last resided with the wife
Enforcement ofÂ Order ofÂ Maintenance under S125 CrPCÂ and its importance:
It is necessary that a copy of the order must be provided to the claimant free of cost when an order for maintenance is passed by the first class magistrate. The person on whom an order is executed must obey the order. If a person fails to pay the amount of maintenance without sufficient reason it will result in a court warrant for collecting the amount due. The immovable property or salary of the person can be attached under a court warrant. Even then also a person doesnâ€™t pay the maintenance then a person is liable to imprisonment for a period of a maximum of 1 month or until the amount is paid, whichever is earlier. The limitation period is 1 yr for filling application for enforcement of maintenance the date on which it becomes due. Otherwise, the application will be dismissed.