S ection 125, CrPC
Section 125, CrPC
It provides that any person who is charged under this section, cannot deny to give maintenance to his parents, children and wife if he is able to maintain himself. The maintenance provision provided under this section is applicable to people belonging all religions.
Maintenance to wife
The ‘wife’ under this section includes a woman who has obtained divorce from her husband and she has not remarried. The wife can be of any age, minor or major. The wife will not be allowed to obtain an allowance from her husband under the below-mentioned cases-
- In case the wife is living in adultery.
- If the wife refuses to live with her husband without giving any sufficient cause for the same.
- If the married couple is living separately by their mutual consent.
Maintenance to child
The child who is unable to maintain himself is given maintenance under this provision. The child can be legitimate or illegitimate. This proviso also entitles a daughter to obtain maintenance if she has attained majority but not able to maintain herself because of any abnormality physical or mental or by reason of any injury.
If there is a proof of neglect for maintaining the child then the Magistrate can direct to pay monthly allowance to the child on the rate it deems fit. If the child is a minor married daughter, then the father is required to provide her with maintenance if her husband is not possessed of sufficient means till the age of her majority. The word ‘minor’ would mean a person who has not attained his majority under the provisions of the Indian Majority Act, 1875. However, the word ‘child’ is not defined under the provisions of this Act.
Maintenance to parents
The maintenance would be provided to the father and mother under this Section who are unable to maintain themselves. This social and legal obligation to maintain the parents would apply equally to a daughter also if the parents have no means of income. This provision does not clearly mentions where parents word would include the adoptive father or adoptive mother or stepfather and stepmother. The stepmother is not included to receive maintenance but if the stepmother is childless then she is also entitled to receive maintenance under this provision if she is a widow. The mother is not required to pay maintenance to her husband or children.
Essential conditions for maintenance under this section
- Refusal to maintain- It is mandatory to prove that the person who has to provide maintenance has neglected or refused for doing so.
- Sufficient means- The person from whom the maintenance is claimed should have sufficient means to provide maintenance. It refers to the actual earning capacity of the person.
- Unable to maintain– The person who is claiming maintenance under this section must be unable to maintain himself or herself.
Procedure regarding maintenance
The maintenance procedure is dealt with under section 126 of the Criminal Procedure Code. The place where these proceedings will be taken up in the below-mentioned district:-
- where he resides
- where his wife resides
- where he last resided with his mother or wife of an illegitimate child
The evidence is to be taken in the presence of the person against whom the maintenance will be ordered. The ex-parte evidence is taken in case the person is willfully avoiding summons.
Nature of proceeding- It is a Quasi- criminal proceeding. The nature is of summary trial here.
Relief– The proceedings under this section have only one relief which is of maintenance.
Jurisdiction of the court– The Family Court has jurisdiction in these cases.
Maintenance of the husband- Under article 39 of the Indian Constitution, it is mentioned that the state shall ensure to all its citizens, a sufficient enough means for their subsistence, and the children are provided with enough facilities to develop in a dignified manner. The childhood innocence of the children must be protected from any kind of exploitation and abandonment whether moral or material. Sections 24 and 25 of the Hindu Marriage Act, 1955 are gender-neutral provisions which can be invoked for maintenance where the aggrieved party is the husband.
Supporting judgment on maintenance in favour of the husband-
‘Smt kanchan vs. kamalendra, 1992, AIR 1992 BOM 493’’ – The opinion of the Hon’ble High Court of Bombay, at Bombay in this case was that the husband must not rely solely on the wife’s income because granting maintenance to a person who is skilled would promote idleness in case the husband is able to work and earn for his livelihood.
Frequency and questions
Yes, the wife has to prove domestic violence by leading the evidences for getting final relief.
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