Maintenance of Wife, Children and Dependable

BY-
Parth Bhuta

Page 1 of 21
 SVKM’S

NMIMS SCHOOL OF LAW

A PROJECT SUBMITTED

ON

Maintenance of Wife, Children and Dependable

IN COMPLIANCE TO PARTIAL FULFILLMENT OF THE MARKING

SCHEME, FOR TRIMESTER V OF 2015-2016, IN THE SUBJECT OF LAW OF
CRIMES - II

SUBMITTED TO FACULTY:

Prof. Nimish Desai

FOR EVALUATION

SUBMITTED BY:

Parth Bhuta

B.A L.L.B. (Hons.)

ROLL NO – 65

RECEIVED BY: ____________________________

ON DATE: __________ TIME: _________

Page 2 of 21
 TABLE OFCONTENTS

 Table Of Abbreviations 4

 Table Of Cases and Statutes 4

 Research Methodology 5
1. Significance of the study 5
6
2. Limitations of study

Chapter 1 Introduction 7

Chapter 2 Legal Analysis 9

Chapter 3 Role of Judiciary 14

Chapter 4 Comparative study 17

Chapter 5 Conclusion 19

 Suggestions 20

1. Bibliography 21
1. Books referred 21
21
2. Websites- with date and time of access

TABLE OF ABBREVIATIONS

Sn. no Key word Expanded Form

Page 3 of 21
 1. Sec Section

2. Pg. Page
3. v. Versus
4. IPC Indian Penal Code
5. www World wide web
6. i.e. That is
7. Etc. Etcetera
8. USA United states of America
9. Ind. India

TABLE OF CASES AND STATUTES STATED

ACTS/ CONVENTION

 INDIAN PENAL CODE

 CRIMINAL PROCEDURE CODE

CASE LAWS
 Mohd Ahmed Khan v. Shah Bano Begum, (1985) 2 S.C.C 556

RESEARCH METHODOLOGY

Page 4 of 21
I have adopted secondary method of research including books, statistical data internet and articles. To
show the validity of the sources mentioned, proper footnoting has been done.

 RELEVANVE OF THE PROJECT-

Law of Crimes II, includes studying, analysing and interpreting the topics of the CrPC i.e. Criminal
Procedure Code. This paper aims to carry out a research study pertaining to ‘Maintenance of Wife
and Children’ and elucidate on how it is a crime against the society. Maintenance of Wife and
Children is an important factor as in India, the male is still majorly the head of the family and hence
the breadwinner. Therefore it is important to study the provisions of the CrPC pertaining to this topic.

 OBJECTIVE OF THE STUDY-

The Objective of this study is to provide an intensive research and analysis of ‘Maintenance of Wife
and Children' regarding its Technicalities, evolution, types, issues etc. These essential areas have been
studied in depth and briefed up in the project. It aims at exploring all aspects of Maintenance of Wife
and Children.

 SIGNIFICANCE OF THE STUDY-

The topics covered under my project are as follows-

1. History, evolution and emergence

2. Ingredients of the sections
3. Comparative study between countries
4. Conclusion from the project and analysis

 RESEARCH HYPOTHESIS-

During the study of this project, the researcher seeks to answer the following questions:

1. What is ‘Maintenance of Wife and Children’

Page 5 of 21
 2. What are the provisions of CrPC pertaining to ‘Maintenance of Wife and Children’
3. Cases where the law was used

 LIMITATION OF RESEARCH

The topic allotted to the Researcher was vast and dynamic, therefore, more use of internet was
required so as to be relevant with the information. Information from Books and Journals
contributed a lot when it came on writing about evolution or analyzing and comparing the
current situation. Nevertheless material from books were not as useful as internet when the facts
and prevailing situation was to be analyzed. Thus, lot of effort had to be put in when it came to
paraphrase the internet material so as to avoid copy and paste feature.

CHAPTER - 1

INTRODUCTION

Page 6 of 21
The whole concept of maintenance was introduced in order to see that if there is a spouse who is not
independent financially then the other spouse should help him/her in order to make the living of the
person possible and independent. Providing maintenance means that the other person is getting the
maintenance should be able to live as he or she lived before marriage in case of divorce and in case
where the two partners are not living together and they seek maintenance than the spose getting
maintenance should be able to live a life as when they lived together.

Evolution: -

“In the older times, after the completion of 50 years of life, one had to detach oneself from
the responsibilities of a ‘Grihastha’ and switch over to the third stage of human life which was known as
‘Vanpristha’ which referred to the devotion of the next 25 years of life by the ‘Vanpristha’ by mana,
vachana and karma to the selfless service of the suffering humanity and the larger society in return to the
services received form society during the first 50 years of life.” People used to consider old age as the
age to rest and relax and spend the rest of their lives peacefully. This was valid because then these people
had children who didn’t view looking after their parents as a difficulty and burden on them. “The moral
duty to maintain parents is recognized by all people”. “It is this law and morality by which it is
supported, that have saved our government the trouble of enforcing that complicated system of poor laws
which is social necessity in other countries.”  In India since historical times there has been a tradition,
followed by nearly every community under Hindu law, to treat elderly people of the family with love,
care and respect. Changing times have resulted in a situation where these traditions have weakened and
the term individuality has superseded it. Nowadays everyone wants to lead a life on his terms and tries to
escape from the responsibilities he or she has using the alibi of individuality. They have imbibed this
term in the wrong sense in their lives. Individuality does not get’s in way of traditions and morality. It’s
up to you how to maintain the balance between the two. Moreover, treating elderly people with love, care
and respect is more a sign of morality than traditions. “Aged mother and father, the infant children and,
the chaste wife must be maintained even by doing a hundred misdeeds” .In today’s time children feel
burdened to keep their parents with them. Some of them even go to such an extent where they leave them
stranded on the roads.

What is Maintenance: -

Maintenance is the amount which a husband is under an obligation to make

to a wife either during the subsistence of the marriage or upon separation or divorce, under certain
circumstances. Maintenance not only includes basic necessities like food, clothing and residence but it

Page 7 of 21
also includes the things necessary for comfort and status in which the person entitled is reasonably
expected to live.  

Scope of the Study: -

The scope of the study is to explore in detail the provisions of Section 125 of
CrPC. In particular it focuses on the below mentioned issues and the application of the current legal
procedures in addressing them.

 If a man and woman are living as husband and wife for a considerable duration of time, will it be
presumed as a valid marriage and whether this presumption would allow the woman to claim
maintenance under Section 125 of CrPC?
 If a marriage is performed according to traditional rites and ceremonies without strictly fulfilling
the provisions of Section 7(1) of the Hindu Marriage Act, 1955 will the woman be allowed to
claim maintenance under Section 125 of CrPC.?

Scheme of the Study: -

The first introductory chapter begins with the evolution of maintenance and
its historical origin. It dwells upon the way Criminal Procedure Code got introduced in India through the
British during their rule and the way the code went through its various amendments till its current form.
The chapter also covers the scope of study and the issues that would be discussed as part of the study.

The second chapter explores in detail the criminal provisions in Section 125. It includes the concept of
maintenance, conditions for claiming maintenance, persons who can claim the maintenance and the
quantum of maintenance. It covers the criminal and legal bodies which are relevant to this law.

The third chapter covers the role of judiciary in which the researcher has found what all the cases are
related to the Section 125 through the case: - Mohd Ahmed Khan v. Shah Bano Begum, (1985) 2 S.C.C
556.

The fourth chapter does a comparative study of the relevant laws currently prevailing in Canada as well
as the Muslim Law v. Hindu Law.

The fifth chapter is the conclusion and the suggestion given by the researcher.

CHAPTER - 2

Legal Analysis
Page 8 of 21
 I. Sec. 125 of Criminal Procedure Code1
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
e. 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.
Explanation.- For the purposes of this Chapter,-
i. minor" means a person who, under the provisions of the Indian Majority Act, 1875
(9 of 1875 ); is deemed not to have attained his majority;
ii. wife" includes a woman who has been divorced by, or has obtained a divorce
from, her husband and has not remarried.
2) Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the
application for maintenance.

3) If any person so ordered fails without sufficient cause to comply with the order, any such
Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the
manner provided for levying fines, and may sentence such person, for the whole or any part of

1
Central Government Act Sec. 125 in The Code Of Criminal Procedure, 1973

Page 9 of 21
 each month' s allowances remaining unpaid after the execution of the warrant, to imprisonment
for a term which may extend to one month or until payment if sooner made: Provided that no
warrant shall be issued for the recovery of any amount due under this Sec. unless application be
made to the Court to levy such amount within a period of one year from the date on which it
became due: Provided further that if such person offers to maintain his wife on condition of her
living with him, and she refuses to live with him, such Magistrate may consider any grounds of
refusal stated by her, and may make an order under this Sec. notwithstanding such offer, if he is
satisfied that there is just ground for so doing.
4) Explanation: - If a husband has contracted marriage with another woman or keeps a mistress, it
shall be considered to be just ground for his wife’s refusal to live with him.
5) No Wife shall be entitled to receive an allowance from her husband under this Sec. if she is
living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if
they are living separately by mutual consent.
6) On proof that any wife in whose favour an order has been made under this Sec. is living in
adultery, or that without sufficient reason she refuses to live with her husband, or that they are
living separately by mutual consent, the Magistrate shall cancel the order.

Explanation

Under CrPC, only wife (a woman who has been divorced by or has obtained divorce from her husband &
hasn’t remarried) can claim for maintenance. A wife who refuses to stay with her husband due to legal
grounds such as (bigamy, cruelty & adultery) has the right to special allowance under this act. But a wife
does not possess right to claim maintenance if she’s living in adultery or she’s living separately by
mutual consent. The various Sections of CrPC are criminal in nature and are used for the criminal
charges. Under CrPC, only wife (a woman who has been divorced by or has obtained divorce from her
husband & hasn’t remarried) can claim for maintenance. A wife who refuses to stay with her husband
due to legal grounds such as (bigamy, cruelty & adultery) has the right to special allowance under this
act. But a wife does not possess right to claim maintenance if she’s living in adultery or she’s living
separately by mutual consent. The magistrate has the power to give the maintenance from the date of the
order and if he gives the allowance from the date of filling the application than in that case he has to give
reasons as to why he/she is giving the maintenance from the date of the application. Bombay High Court
which said in its judgment that no maintenance will be granted to the second wife of a Hindu.”  This
judgment is in a way differentiating amongst women and also there is an angle of gender bias to this
judgment..

Quantum of maintenance

Maintenance apart from covering food, clothing and shelter, also includes other necessities. The quantum
of maintenance varies, considering the status of the person, his financial condition and number of
Page 10 of 21
dependents and is at the court’s discretion. The court takes into consideration any maintenance that may
have been already ordered under the personal law before passing an order under Section 125. The wife is
entitled to live according to the same standards and status that she enjoyed when she was living with her
husband.

Types of Maintenance

There are two types of maintenances:-

A. Interim maintenance and maintenance pendente lite

 The interim maintenance is payable from the date of presentation of the petition till the date of
dismissal of the suit or passing of the decree.
 Interim maintenance is supposed to meet the immediate needs of the petitioner, and maintenance
pendente lite is for providing the litigation expenses to the claimant.
 Interim maintenance is the amount that is paid by the financially independent spouse to their
counterpart during the pendency of the proceedings in the matrimonial cause and which covers
the expenses of the proceedings as well as the other expenses of the spouse during the course of
the proceedings.
 The basis of the claim for interim maintenance is that the claimant has no independent income of
his/her own to support himself/herself.
 The provision is silent on the quantum of maintenance and it is upon the discretion of the court to
determine the quantum.
 Sec. 24 of Hindu Marriage Act, 1955 (HMA) provides for maintenance. It talks about how either
the wife or the husband can claim for interim maintenance. The interim maintenance is payable
from the date of presentation of the petition till the date of dismissal of the suit or passing of the
decree.
 Interim maintenance can be claimed either by the husband or the wife, under the Hindu Marriage
Act and the Parsi Marriage and Divorce Act and is called “Alimony Pedente Lite.” Under all
other statutes, the wife is the only spouse who can claim it.  
 Sec. 36 of the Divorce Act of 1869 says that the wife may file a petition for interim maintenance,
regardless of who instituted the suit and whether the wife obtained an order for protection. It also
says that the petition for the expenses of the proceedings and alimony pending the suit should be
disposed of within sixty days of the service of the petition on the husband.

B. Permanent Maintenance

Page 11 of 21
  Permanent maintenance, on the other hand, is the maintenance that is paid by one spouse to the
other after the judicial proceedings have resulted in either the dissolution of the marriage or a
judicial separation.
 Sec. 25 of the act talks about permanent maintenance. It states that how the court can order the
respondent to pay the applicant for her or his maintenance a gross sum or a monthly or periodical
sum for a term not exceeding the life of the applicant unless there are changes in circumstances
under which the court can change its order.

II. MAINTENANCE UNDER HINDU LAW2

 The right of maintenance under Hindu law is very old and it was one of the basic necessities of
the joint family system. The maintenance of the women in the joint family system was an
important system and this was followed as a tradition which governed the families.
 It was the obligation of the head of the family (karta) to look after the women of the family i.e.
their wives and their daughters until they were married. Latter when the women grew older it was
the duty of their children to mother and other old women of the family.
 The unchastely on part of the women disentitled them to maintenance. Their remarriage ended the
claim and the amount of maintenance depended upon various factors like the status of the family,
necessary requirements, wants, age, etc. 
  Sec. 24 provides of Hindu Marriage Act, (HMA) 1955 provides for maintenance.
 Under this Act also, only a wife has a right to claim maintenance. The Hindu husband has a legal
obligation to maintain his wife during his lifetime.
 However, if a wife ceases to be Hindu or lives separately under no legal grounds she loses the
right to claim maintenance too.
 Also, a Hindu wife under this act shall not be entitled to separate residence and maintenance from
her husband if she is unchaste or converts to another religion. Wife can claim separate residence
only if husband remarries and the other wife stays in the same house.
 Under this act (Sec. 19), a (Hindu) wife after the death of her husband is entitled to be maintained
by her Father in-law, provided she has no means of her own earnings. However, the right cannot
be enforced if her Father in-law does not have means to do so and if the wife remarries.
 The liabilities of a Hindu to maintain others are personal liability and liability dependant on
possession of property where the former arises from mere relationship between the parties and the
latter arises due to possession of property.  

2
http://www.legalserviceindia.com/articles/hmcp.htm visited on November 8 2015
Page 12 of 21
III. Maintenance of Wife under Sec. 18, the Hindu Adoptions and Maintenance Act, 1956
 Under the Sec. 18(1) of the HAMA, 1956 wife is entitled to maintenance by her husband for
lifetime i.e. she will be given maintenance until she dies or her husband dies.  
 Under Sec. 18 of this Act a Hindu wife is entitled to live separately from her husband without
cancelling her right to claim maintenance. The grounds under which she can live separately are:-
(1) Husband is guilty of desertion
(2) The Husband has treated her with cruelty
(3) The husband is suffering from a virulent form of leprosy
(4) The husband has any other wife living.
(5) The husband keeps a concubine elsewhere
(6) The Husband has ceased to be a hindu by conversion to another religion and
(7) If there is any other cause justifying living separately
 But there are two bars which will prevent a wife from claiming maintenance from her husband i.e.
(i) if she is unchaste or (ii) if she ceases to be a Hindu by conversion to another religion.
 The wife is entitled to live separately without forfeiting her right to maintenance, if her husband is
guilty of desertion, if he subjects the women to cruelty, if he is suffering from a leprosy, if he has
any other wife living, keeps a concubine in the house where his wife resides, if he has ceased to
be a Hindu, or if there is any other cause justifying her to live separately under Sec. 18(2) of the
HAMA. 

CHAPTER - 3

Role of Judiciary

Page 13 of 21
The court awards maintenance to the wife considering various factors into consideration like status and
position of the parties, wife’s wants, the value of wife’s property and income if any, derived from that
property and the number of persons entitled to maintenance. The Sec. says that the maintenance is given
on the basis of the decree of relation between the two partners.

I. Maintenance under Muslim Law3

 Muslim Law passively considers male to be superior to the woman. It is believed that a man can
take care of himself whereas the woman cannot, in other words it is deduced that a woman cannot
be self reliant. Hence, in Muslim law the wife has been bestowed with an absolute right to be
maintained and the husband is bound to maintain her regardless of the fact whether she’s poor or
not. Wife’s right to maintenance is a debt against the husband.
 In muslim law, wife is preferred over all the other persons (even the young children & other
necessitous relations). However, the woman’s right and husband’s obligation exists only if the
wife remains faithful to her husband and obeys all his reasonable orders.
 Nonetheless, the wife does not loose the right to maintenance if she refuses access to her husband
on legal grounds such as her illness or if the marriage cannot be consummated i.e. cannot be
concluded by the sexual intercourse because of her old age, illness, his minority or faulty organ.
However if the wife being too young for sexual intercourse, lives with her parents, she does not
possess any right for maintenance.
 The wife also possess the right to claim maintenance on the account of a pre/ante- nuptial
agreement i.e. maintenance in the event of ill treatment. Along with this, the wife also gets the
privilege of being entitled to a special allowance called Kharch-i-pandan, guzara under such
agreement.
 Muslim law provides provisions for the right to maintenance if the wife stays separately due to
cruel behavior or non-payment of prompt dower. But a wife cannot claim any maintenance during
widowhood or Iddat because of her entitlement to inheritance.

Prior to the landmark judgment of Supreme Court in Shah Bano case, Divorced Muslim women did not
have right to maintenance. This in the point of fact handicapped the situation of Muslim women as the
husband according to Muslim law possesses the Authority to divorce from his wife whenever he wants
whereas the woman lack this right. Hence, the said case led to the enactment of Muslim women
(protection of rights on divorce) Act, 1986 which enables a divorced Muslim to have a reasonable and

3
http://www.lawteacher.net/free-law-essays/family-law/maintenance-of-wife-under-hindu-law-essays.php visited on 9
November 2015
Page 14 of 21
fair provision of maintenance from her husband and from the relatives who are entitled her property after
her death after Iddat.

II. Right of Maintenance of Muslim Sons

 The right to maintenance of Muslim sons is governed by CrPC 1973 and by CrPC 1973 &
Muslim women act, 1986 for Muslim daughters. The Muslim children are entitled to maintenance
for the period till they gain majority or are able to maintain themselves (Sec. 125, CrPC). In the
case of daughters, they possess the right to maintenance till they get married and two years post-
marriage.
 Sec. 125 of the CrPC is basically secular in nature. Due to the secular nature of this act this does
not affect the various personal laws and also the personal laws do not affect this Sec.. If any
Muslim women seek compensation under the Sec. 125 and she will be awarded maintenance by
the respected court only if she is not remarried. “If the wife exercises her right under the
Muhammadan Law and refuses to live with her husband on the ground of non-payment of dower,
cannot enforce her right to maintenance under this act.”  The Muslim women in case if she is
granted maintenance will be in the form of the monthly allowances.

Mohd Ahmed Khan v. Shah Bano Begum, (1985) 2 S.C.C 5564

There was a Muslim women who was divorced by her husband when she was 68 years old and was the
mother of five children. She filled a case in the court for granting of maintenance by the court. She was
given maintenance by the Supreme Court under Sec. 125 of the CrPC even after the iddat period was
over. Under the Muslim personal law a divorced women could be awarded maintenance only during the
iddat period and not latter. In case if she wants maintenance than she will have to be given maintenance
by the other relatives according to the Muslim personal law. This judgment of awarding maintenance to
Muslim women under Sec. 125 of the CrPC which is a secular Sec. of the law was widely critised by the
Muslim community throughout the country. The Supreme Court had its following judgment in the case:
“The Supreme Court of India mitigated the effect of Muslim laws that limited the maintenance payable to
a divorcée. It held that, regardless of any previous payment of maintenance by a divorced man to his
former wife during her iddat period and payment of her mahr, a former wife could still seek additional
maintenance from her ex-husband under Sec. 125 of the CrPC, which permits courts to order
maintenance payments for financially destitute women. In its decision, the Court quoted certain passages
from the Qur'an in support of the position that a divorced man has an obligation to materially support his

4
ShamimaFarooqui v. Shahid Khan, 2015 SCC OnLine SC 288, decided on 06.04.2015
Page 15 of 21
former wife. This decision triggered massive protests amongst conservative Muslim Indians, who viewed
the decision as a deliberate attempt to undermine "their" personal laws and were outraged that a secular
court tried to support its decision with references to the Qur'an. Fundamentalist Muslim leaders even
pressured Shah Bano, to withdraw her support for the Court's decision in her favor. Despite acclaim for
the decision from women's rights advocates, including from some Muslim women's groups, many
Muslim leaders lobbied for legislation to overturn the Court's decision. As a result, without any
consultation with either women's groups or moderate Muslim leaders, the national government hastily
passed the Muslim Women Act of 1986, which limited a Muslim man's duty to pay maintenance to his
former wife to her iddat period.”  

The Indian government which was the congress party at that time was under pressure from the Muslim
community to bring a law which would overrule this judgment. So the government under the pressure
and in order to save its Muslim vote bank brought the law The Muslim Women (Protection of Rights
on Divorce) Act, 1986.

According to this act a Muslim women is to be awarded maintenance by her husband only during the
iddat period and not after that. But in case if she is financially not independent and needs maintenance
than in that case her relatives who would get the share of her property will award her with maintenance.
In the scenario where she does not have any such relatives than the State Waqf Board has to pay her the
maintenance. or her relatives. She also has an option to use the Sec.s 125-128 of the CrPC, 1973. Finally
the cases pending under the provisions Sec. 125-127 shall be disposed by the Magistrate.

CHAPTER - 4

Comparative Study
Page 16 of 21
 I. Maintenance under Muslim Law in comparison with Hindu law
 A Hindu woman is entitled to maintenance by her husband throughout her life but in case of
Muslim women she is entitled to maintenance by her husband only during the iddat period.
 The court tried to make both the communities on the same line and tried to provide women of
both the communities with maintenance throughout the life.
 The judiciary tried to provide women of both communities with equal opportunities and rights.
But as usual in the case of Indian democracy the congress government bowed in front of the vote
bank politics and brought in the ‘The Muslim Women (Protection of Rights on Divorce) Act,
1986.’ This act completely took away the right of the women to maintenance beyond the period
of iddat by the husband. Hindu women can ask for award of maintenance under Sec. 125 of the
CrPC but in case of a Muslim women she can file a case under the same but will be awarded
maintenance under this act only if the husband recognizes this in a way.
 The laws of the Muslims are considered to be old. Also this is recognized by the Muslim
community there need some kind of reformation but in actual there are no reformations on the
ground.
 Same is the case with the Hindu law the religious leaders do recognize the need for reformation
but they are still sticking with the old traditions which are discriminatory in nature. The Muslim
women face much more discrimination as compared to the other women of our country (India).
 Muslim women are much more disadvantaged as they are the members of a minority community
of the country and relatively belong to the poor Sections of the society.

II. Alimony in Canada5

Types of spousal support

5
http://www.justice.gc.ca/eng/fl-df/spousal-epoux/ss-pae.html visited on 12 November 2015
Page 17 of 21
  In Canada, spousal support may be awarded upon divorce, under the federal Divorce Act, or upon
separation without divorce under provincial statutes. There are generally three different forms of
spousal support awarded:

1. Compensatory support – This form of support compensates an individual for her or his
contributions to the relationship as well as for any losses that individual has suffered;
2. Non-compensatory support – In some cases support may be awarded on a needs basis. This form
of support may be awarded by a Court where an individual is sick or disabled; and
3. Contractual support –This form of support upholds a contract between the parties which governs
support payments.

Married spouses and common-law spouses

Both married spouses and common-law spouses may be entitled to spousal support. An important
distinction between the two is that common-law spouses must start an action claiming spousal support
within one year of the breakdown of the relationship. A second important distinction is that only married
couples may divorce under the federal Divorce Act, common-law spouses may only separate under
provincial legislation, such as Ontario's Family Law Actor British Columbia's Family Relation's Act.No
such limitation arises for married individuals. In addition to being in a marriage or common-law
relationship, courts will look at the conditions, means, needs and other circumstances of each spouse.
This includes:

1. The length of time the spouses cohabited;

2. The functions performed by each spouse during the relationship; and
3. Any existing orders or agreements.
Factors for awarding spousal support
The federal Divorce Act at s.15.2 (6) states that there are four objectives of spousal support orders:

1. Recognize any economic advantages or disadvantages to the spouses arising from the marriage or
its breakdown;
2. Apportion between the spouses any financial consequences arising from the care of any child of
the marriage over and above any obligation for the support of any child of the marriage;
3. Relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
4. In so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable
period of time
In terms of comparison, it can be observed that, in Canada, the support is limited to the ‘spouse’ and
hence the term ‘spousal support’, while in India, under CrPC, the support extends to children and parents
of the man, in addition of the wife. This goes to show the difference in family structure and predicament
between India and Canada.

CHAPTER - 5

Page 18 of 21
 Conclusion and Suggestions

I. Conclusion
1. Providing maintenance means that the other person who is getting the maintenance should be able
to live the life as he or she lived before marriage in case of divorce and in case where the two
partners are not living together and they seek maintenance than the spouse getting maintenance
should be able to live a life as when they lived together.
2. If we read the Shah Bano case we could see that the Muslim and the Hindu women were on the
same side. But later when the government passed The Muslim Women (Protection of Rights on
Divorce) Act, 1986 the Muslim women were again seen to be more unprivileged than the Hindu
women. However, subsequently, the court in the Daniel Latify judgment said that the Muslim
women can also be awarded the same maintenance as Hindu women for life time.
3. Law of maintenance is personal as well as legal in character and arises from the very existence of
relationship between the parties.
4. The issue of maintenance of wife, children and parents arises in criminal context only on the
denial of giving maintenance by civil means.
5. So, in order to deter people from abandoning people and take care of the so that their acts do not
lead to increase in the illicit activities within the society, Sec. 125 has been incorporated in the
criminal procedure code.
6. A case analyzing whether according to Sec. 125(1) can parents claim maintenance from
daughter’s as well. Daughters in the process of escaping from their responsibilities towards their
parents may argue that the Sec. Uses only word ‘he’ and not ‘he/she’. In the case M. Areefa beevi
vs. Dr. K.M. sahib the Kerala high court said that Sec. 2(y) of CrPC says “Words and expressions
used herein and not defined but defined in the penal code have the meanings respectively
assigned to them in that code”.
7. From the above discussion, it can be concluded that Law of maintenance with no doubts is
inclined towards the females in both the structures whether it be Hindu Law or Muslim Law.
8. Women have been bestowed with many more privileges in comparison to men and husbands have
been granted a lot more of responsibilities and obligations. Although the given laws may sound
unjust to a few but pragmatically they seem to be correct as in our country even till date women
do not have the social status equal to that of men.
9. Hence, it won’t be incorrect to extrapolate that Law makers while formulating these provisions
must have kept in mind the situation of the women in the patriarchal society of India.

II. Suggestions: -

Page 19 of 21
The following are the suggestions offered by this study –

1. Cases filed U/S125 usually take a lot of time to reach their judgment. This causes a lot of
grievance to the aggrieved party as that party may not have sufficient funds to carry on a
case for a prolonged period of time.
2. Another suggestion is that this S is extremely gender biased and thus is misused in n
number of cases. It favours the females and has assumed that the entire burden of taking
care of the family should be done by the male. This is a very wrong assumption as it could
also be possible in some cases that it is the husband who does not have the funds to look
after the family.
3. Judgments on maintenance are never considered in isolation and are closely linked with
the personal laws. Personal laws in almost all the communities are discriminatory in
nature and are also not uniform. The Constitution of India has mandated that the state
should provide for its citizens a uniform civil code. The Supreme Court has also reminded
the Government several times about this responsibility. It is highly recommended that we
implement a uniform civil code and all efforts should be made in that direction.
4. Under CrPC the parents can file the application only where the child lives, this Sec.
should be done away with, as in the days of globalization, one cannot restrict oneself to a
geographical boundary. Maintenance act 2007 has provided flexibility in this area by
incorporating that the parents can file the case where they live or where the child lives at
their discretion.
5. CrPC does not provide any scope for conciliation, and this proves to be a major loophole,
as many a times, the situation can be savaged and extreme means need not be subscribed
to.
6. Another suggestion would be that there should be specific tribunals just to deal with the
cases of maintenance, both u/s 125 and under the maintenance act 2007. The tribunals
should set a specific time limit for each case and should not exceed the time limit.
7. The courts should grant the right of interim maintenance to both the parties. I.e. if the
husband is in dire needs of funds, even he should have the right to ask for interim
maintenance and vice versa.

Bibliography

Page 20 of 21
BOOKS REFERED

 Criminal Procedure Code (Cr.P.C.) by Tandon, revised by Shailender Malik, 18th edition,reprint
2012
 Criminal Procedure Code (Theory with Q.A.) by Ashok K.Jain
 Criminal Procedure Code, 1973 (In 2 Vols.) by Durga Das Basu, 5th edition, 2014

Websites Referred: -
 http://www.hewn.com/choiceco.html
 http://www.law.bepress.com/expresso/ps/esp/1885
 http://wwwinternetlibrary.com/
 http://www.cptech.org/ecom/ucita/shrinkwraplegal.html
 http://www.lawbepress.com/

Page 21 of 21