ASSIGNMENT NO.

14

APPLICATION FOR MAINTENANCE

“Maintenance” is an amount payable by the husband to his wife who is unable to maintain
herself either during the subsistence of marriage or upon separation or divorce.

Various laws governing maintenance are as follows:

● for Hindus – Hindu Marriage Act, 1955; Hindu Adoption and Maintenance Act, 1956
● for Muslims – Muslim Women (Protection of Rights on Divorce) Act, 1986
● for Parsis – Parsi Marriage and Divorce Act, 1936
● for Christians – Divorce Act, 1869
● secular laws – Criminal Procedure Code, 1973; Special Marriage Act,1954

Criminal Procedure Code, 1973, Section 125 – This section provides for maintenance not only
to the wife but also to child and parents. Court may order a husband who has sufficient means
but neglects or refuses to maintain his wife who is unable to maintain herself to provide monthly
maintenance to her. However, a wife shall not be entitled to receive maintenance if she is living
in adultery, or refuses to live with her husband without any sufficient reasons, or living
separately with mutual consent.

Sustenance defined
Maintenance of wife for her ‘sustenance’ does not mean animal existence but signifies leading
life in a similar manner as she would have lived in the house of her husband. Husband is duty
bound to enable his wife to live life with dignity according to their social status and strata,
Bhuwan Mohan Singh v. Meena, (2015) 6 SCC 353.

Wife defined
“Wife” Includes a woman who has been divorced by or has obtained a divorce from, her
husband and has not remarried, Section 125(1) Explanation (b), CrPC 1973.
“Wife” in Section 125 CrPC means a legally wedded wife and also includes a divorced wife, D.
Velusamy v. D. Patchaiammal, (2010) 10 SCC 469.

Maintenance only to legally wedded wife

Only a legally wedded wife is entitled to maintenance. A Hindu woman marrying a Hindu male
having a living wife, is not entitled to maintenance as this marriage is void, Yamunabai Anantrao
Adhav v. Anantrao Shivram Adhav, (1988) 1 SCC 530.

Maintenance to ‘previous wife’

A Muslim husband contracting another marriage or taking a mistress is liable to pay
maintenance to the previous wife who also has right to live separately which is payable from the
date of the other marriage. Irrespective of religion, the husband cannot absolve his liability by
offering to take back the wife and maintain her, Begum Subanu v. A.M. Abdul Gafoor, (1987) 2
SCC 285.

Maintenance to second wife

Husband who conceals subsistence of his earlier marriage while marrying the second wife is
entitled to give maintenance to the second wife. Second wife is to be treated as a legally
wedded wife for the purpose of maintenance, Badshah v. Urmila Badshah Godse, (2014) 1 SCC
188.

Wife ‘living separately with mutual consent’ does not include divorced wife
The meaning of ‘wife’ under Sections 125(1) and 125(4) CrPC is different. Section 125(4)
contemplates a married woman. Wife living separately from husband with mutual consent does
not mean wife who obtains divorce by mutual consent and lives separately and therefore cannot
be denied maintenance on this ground, Vanamala v. H.M. Ranganatha Bhatta, (1995) 5 SCC
299.

Is an earning wife entitled to maintenance?

Wife having a school of her own and possessing wet lands is in a better financial position than a
husband who is not doing well in his profession and has no land. Hence, it is unnecessary to
pay any maintenance to the wife, Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840.

Wife’s income to be accounted for determining maintenance

Wife’s income has to be taken into account while determining the amount of maintenance
payable to her. It is not an absolute right of a neglected wife to get maintenance nor it is an
absolute liability of husband to support her in all the circumstances, Bhagwan Dutt v. Kamla
Devi, (1975) 2 SCC 386.
Maintenance to woman in a live-in relationship

The Supreme Court expressed its opinion that a broad interpretation of “wife” should include
cases where man and woman live together as husband and wife for a reasonably long period of
time (live-in relationship/ presumed marriage/ de facto marriage/ cohabitation). A strict proof of
marriage should not be a precondition for maintenance under S. 125 CrPC so as to fulfill the
true spirit and essence of the beneficial provision of maintenance, Chanmuniya v. Virendra
Kumar Singh Kushwaha, (2011) 1 SCC 141. (This judgment has however been referred to a
larger bench)
Recently, it is held that a woman in a live-in relationship has an efficacious remedy to seek
maintenance under Protection of Women from Domestic Violence Act, 2005 even if it is
assumed that she is not entitled to the same under Section 125 CrPC. In fact, under the
Domestic Violence Act, the victim would be entitled to more relief than what is contemplated
under Section 125 CrPC, Lalita Toppo v. State of Jharkhand, 2018 SCC SC 2301.

Woman knowingly entering in a live-in relationship with a married man

All live-in relationships are not relationships in the nature of marriage. There has to be some
inherent/ essential characteristic of marriage though not a marriage legally recognised. A live-in
relationship between an unmarried woman knowingly entering into relationship with a married
male cannot be termed as a relationship in the “nature of marriage” and her status would be that
of a concubine or mistress and therefore is not entitled to maintenance, Indra Sarma v. V.K.V
Sarma, (2013) 15 SCC 755.

Muslim woman entitled to maintenance under CrPC

A divorced Muslim woman has right under Section 125 CrPC to claim maintenance even
beyond the iddat period. If the woman is able to maintain herself then the liability of husband to
maintain her ceases with the expiration of the iddat period. However, on the inability of
maintaining herself, she can take recourse of that section. Section 125 has an overriding effect
on personal law in case of conflict between the two, Mohd. Ahmed Khan v. Shah Bano Begum,
(1985) 2 SCC 556.

The present submission deals with drafting an application for under s. 125 pf CrPC for
maintenance.
 IN THE COURT OF METROPOLITAN MAGISTRATE (SOUTH-EAST DISTRICT)
SAKET COURT COMPLEX, NEW DELHI

MAINTENANCE APPLICATION NO. _________ OF 2020

IN THE MATTER OF :

SAVITRI SHARMA
w/o Kamal Kaushal
r/o Pocket A-9, Kalkaji Extension
New Delhi-110019 ...PETITIONER

VERSUS

KAMAL KAUSHAL
s/o Late Sh. Rakesh Kaushal
r/o G- 145, Greater Kailash-I
New Delhi-110048
...RESPONDENT

PETITION UNDER SECTION 125 OF THE CODE OF CRIMINAL PROCEDURE FOR

MAINTENANCE

The Petitioner above named most respectfully showeth:-

1. The Petitioner, Ms. Savitri Devi, is the legally wedded wife of the Respondent, Mr.
Kamal Kishore and the Petitioner resides within the jurisdiction of this Hon’ble Court.
2. The Petitioner was married to the Respondent according to Hindu rites as per the
Hindu Marriage Act, 1955 on 27.01.95 (Twenty-seventh of January, Nineteen-
Ninety five).

3. That Petitioner and Respondent stayed together after their marriage and for the last
ten years proceeding from February of 2010 (Two Thousand and Ten), they were
staying at Delhi.

4. That sometime during the period June-July of 2019 (Two Thousand and Nineteen),
the matrimonial life of Petitioner and the Respondent got disturbed on account of the
illegitimate affair of the Respondent with a woman named Mrs. Anuradha Das. The
Petitioner made best possible efforts to persuade the Respondent to desist from
indulging in an affair outside their wedlock. However, the same had no effect on the
Respondent. Rather, the behavior of the Respondent towards the became rude,
cruel and oppressive, and finally on 11.11.19 (Eleventh of November, Two
Thousand and Nineteen), the Respondent compelled the Petitioner to leave the
matrimonial home, since then, the Petitioner is staying with her brother.

5. That the Petitioner has made repeated attempts to join the Respondent in the
matrimonial home. However, the Respondent has refused to take back the Petitioner
and has clearly informed the Petitioner that he was planning to marry Mrs. Anuradha
Das, though the same is not permissible under law. As such, the Respondent has
deserted the Petitioner without any reasonable cause.

6. That the Respondent is liable to maintain the Petitioner who has repeatedly
requested the Respondent to provide her the appropriate maintenance. However,
the Respondent has not only refused/neglected to maintain thePetitioner, but has
also refused to ever part with/return the articles belonging to the Petitioner towards
the dowry and Stridhan which are lying at the Respondent’s house.
7. That the Respondent is a man of status and is working as a Wing Commander in
Indian Air Force. He is getting monthly emoluments of about Rs. 80,000/- (Rupees
Eighty Thousand Only) per month and as such has sufficient means to maintain
himself and the Petitioner. He has no encumbrances or liabilities except that of
maintenance of thePetitioner.

8. That Petitioner has no independent source of livelihood and as such is unable to

maintain herself. She is staying with her brother at Delhi and as such the Petitioner
is dependent upon him.

9. That reference can also be made to Hemchandra v. Hemangini (1993) Cr. I.C. 43
wherein it was held that a wife’s petition cannot be dismissed because she has
relatives or friends willing to maintain her. Thus, in the present matter despite the
fact that the wife has a relative who has helped her and is willing to help her
maintain herself, she does not get disentitled to initiate an action for maintenance
under S. 125 of CrPC, 1973.

10. That the Petitioner claims an amount of Rs. 30,000/- (Rupees Thirty Thousand
Only) per month for maintenance. This amount shall incur daily basic expenses
including her electricity bill, groceries, vegetables, fruits, transportation expenses
etc. Therefore, in view of these necessary expenses, the Petitioner claims a meagre
amount only of Rs. 30,000/- (Rupees Thirty Thousand Only) per month as
maintenance.

11. That reference can also be taken to Nand Kishore Jaiswal v. Suchita Jaiswal 2008
(68) A.I.C.883, wherein with regard to the rate of maintenance fixing the Court held
the following:- “The necessities should be provided for according to the status in life
of the applicant and the means of the respondent.” That in view of the aforesaid
case, necessities should be provided to the petitioner according to the status in her
life. Therefore, in furtherance of the same, the Petitioner claims of Rs.30,000/-
(Rupees Thirty Thousand Only) per month as maintenance.
12. That the spouses are not living separately by mutual consent and thus, the
petitioner-wife is entitled to claim maintenance.

13. That the Petitioner is residing in Delhi and the Hon’ble Court therefore is competent
to entertain and try this petition.

PRAYER

It is, therefore, most respectfully prayed before this Hon’ble Court that it may be pleased
to:-
a) pass an order for maintenance of the Petitioner in favour of the Petitioner and
against the Respondent, directing the Respondent to pay the monthly allowance
of Rs. 30,000/- (Rupees Thirty Thousand Only) towards the maintenance of the
Petitioner;
b) pass an order in favour of the Petitioner that the costs of these proceedings, be
awarded to the Petitioner by the Respondent;
c) Pass any other order which this Hon’ble Court deems fit.

PETITIONER
THROUGH
New Delhi
Date:____
COUNSEL FOR THE PETITIONER
 IN THE COURT OF METROPOLITAN MAGISTRATE (SOUTH-EAST DISTRICT)
SAKET COURT COMPLEX, NEW DELHI

MAINTENANCE APPLICATION NO. _________ OF 2020

IN THE MATTER OF :

SAVITRI SHARMA
w/o Kamal Kaushal
r/o Pocket A-9, Kalkaji Extension
New Delhi-110019 ...PETITIONER

VERSUS

KAMAL KAUSHAL
s/o Late Sh. Rakesh Kaushal
r/o G- 145, Greater Kailash-I
New Delhi-110048
...RESPONDENT

AFFIDAVIT

I, Savitri Sharma, do hereby solemnly affirm and declare :-

1. I am the petitioner in the above matter and as such acquainted with the facts of
the above case.
2. That the contents of this petition have been drafted by my counsel under my
instructions and the contents of the same have been read over and understood
by me and are true as well as correct to my knowledge.
3. The content of the same may be treated as part and parcel of this Affidavit.

DEPONENT
 VERIFICATION

Verified at New Delhi on this XXth day of May, 2020 that the contents of this affidavit are
true and correct to my knowledge. No material part is false or concealed therefrom.

DEPONENT