MAINTENANCE OF PARENT

A final research proposal submitted in partial fulfilment of the course Criminal

Law II, Semester – IV during the Academic Year 2017 – 18.

Submitted by

MITESH KUMAR, 151344

BA.LLB

Submitted to

Dr. FATHER PETER LADIS

April 2018

Chanakya National Law University

Nyaya Nagar, Mithapur

800001, Patna
D ECLARATION PAGE

I Mitesh Kumar, student of B.A., LL.B. (Second year) in Chanakya National

Law University declare that the research project entitled ―Maintenance of
Parent submitted by me for the fulfillment of ―Criminal Law-II course is my
own work. This project has not been submitted for any other Degree /
Certificate / Course in any Institution / University.

2|Page
A CKNOWLEDGEMENT

I am feeling highly elated to work on under the guidance of my Criminal law

faculty. I am very grateful to him for the exemplary guidance. His assignment
of such a relevant topic made me work towards knowing the subject with a great
interest and enthusiasm.

I would like to enlighten my readers through this topic and I hope I have tried
my best to bring more luminosity to this topic. I am overwhelmed in all
humbleness and gratefulness to acknowledge from the bottom of my heart to all
those who have helped me to put these ideas, well above the level of simplicity
and into something concrete effectively and moreover on time.

I also want to thank all my friends, without whose cooperation this project was
not possible. Apart from all these, I want to give special thanks to the librarian
of my university who made every relevant material regarding to my topic
available to me at the time of my busy research work and gave me assistance.

I owe the present accomplishment of my project to my friends, who helped me

immensely with sources of research materials throughout the project and without
whom I couldn’t have completed it in the present way. I would also like to thank
the library staff for working long hours to facilitate us with required materials
going a long way in quenching our thirst for education. I would also like to
extend my gratitude to my parents and all those unseen hands who helped me
out at every stage of my project.
TABLE OF CONTENTS
DECLARATION PAGE.......................................................................................................................... 2
ACKNOWLEDGEMENT........................................................................................................................ 3
INTRODUCTION.................................................................................................................................. 5
OBJECTIVE OF THE STUDY.............................................................................................................. 6
HYPOTHESIS................................................................................................................................... 6
RESEARCH METHODOLOGY............................................................................................................ 6
SOURCES OF DATA......................................................................................................................... 6
1. PARENT’S RIGHT TO MAINTENANCE...............................................................................................7

1.1 DAUGHTER’S OBLIGATION TO MAINTAIN HER PARENT............................................................9

2. NATURE OF PROCEEDINGS............................................................................................................ 11

3. ESSENTIAL CONDITION FOR GRANTING MAINTENANCE...............................................................13

3.1 SUFFICIENT MEANS TO MAINTAIN..........................................................................................13

3.2. NEGLECT OR REFUSAL TO MAINTAIN.....................................................................................13

3.3. PERSON CLAIMING MAINTENANCE MUST BE UNABLE TO MAINTAIN HIMSELF OR HERSELF: . 14

3.4. Special requirements where maintenance is claimed by wife...............................................14

4. PROCEDURE AND PROCEEDING.................................................................................................... 16

4.1 QUANTUM OF MAINTENANCE................................................................................................17

CONCLUSION AND SUGGESTIONS....................................................................................................19

BIBLIOGRAPHY................................................................................................................................. 21
I NTRODUCTION
Available to all neglected wives, discarded divorcees, abandoned children and hapless
parents, belonging to any religion, community or nationality or having any domicile, who can
lay hand [under section 126 (l)(a), Criminal Procedure Code 1973, if husband, father or son is
found anywhere in India, the magistrate, 1st class, of the place has the jurisdiction to entertain
a petition under section 125 of the Criminal Procedure Code] on their husbands, fathers or
sons, the benign provision of section 125 which has the objective, as expressed by Krishna
Iyer J. in 1979, "to ameliorate the economic condition of neglected wives and discarded
divorcees”. The learned judge enjoined that such

“welfare laws must be so read as to be effective delivery s> stems of the salutary objects
sought to be served by the Legislature and when the beneficiaries are weaker sections, like
destitute women, the spirit of Art. 15(3) of the Constitution must be light the meaning of the
Section. The Constitution is a pervasive omnipresence brooding over the meaning and
1
transforming the values of every measure.”

In 1882, James Fitz James Stephen, who piloted the Code of Criminal Procedure, spoke thus
of section 488 (corresponding to the present section 125), the objective of the provision being
"preventing vagrancy or at least of preventing its consequences." Then the provision was
looked upon as a legislative effort to prevent vagrancy or the consequences resulting from it.
In 1963 Subba Rao J., as he then was, observed that section 488 was intended "to serve a
social purpose." In 1985, Chandrachud C.J. observed3 that section 125 imposed on an
individual obligation towards the society to maintain some of his close relations listed therein
so as to prevent vagrancy and destitution. He also rightly said that it is a measure which
enacts a uniform law applicable to all persons belonging to any community, caste or religion.
It is essentially of a prophylactic nature and cuts across the barriers of religion. It is also,
according to him, a moral edict of law, and morality could not be clubbed with religion. In
our submission; section 125 is meant to serve a social, economic and moral purpose. It is also
a projection of equality of sexes and protective discrimination in favour of weaker sections of
society, viz., neglected wives and discarded divorcees, abandoned children and needy and
hapless parents. 2

1
Bai Tahira v. Alt Hussain Fissalli, A.I.R, 1979 S.C. 36
2
Mohd. Ahmed Khan v. Shah Bano Begum, A.I.R. 1985 S.C.
The provisions of section 125, though part of the criminal law, are essentially remedial and
not punitive. In the words of R. Chandra J.: The object of a proceeding for maintenance is to
prevent vagrancy by compelling the husband or the father to support his wife or child unable
to support itself. These provisions are not in the nature of penal provisions but are only
intended for the enforcement of a duty, a default in which may lead to vagrancy. The real
object is to provide food, clothing and shelter to deserted wife and children

O BJECTIVE OF THE STUDY:

The researcher has undertaken this study to understand the existing provisions with respect to
maintenance, procedural aspects and the rights of such person entitled to maintenance under
Cr.P.C.

H YPOTHESIS:
The researcher assumes that the provision for maintenance is not gender- neutral. It does not
discriminate against men or women. It is also assumed that most maintenance claims are
settled by consent. This means that the mother and the father agree on maintenance together
with the maintenance officer, without even appearing in court.

R ESEARCH METHODOLOGY:
The researcher would like to follow doctrinal method for this research. The researcher will
gather data from both the primary and secondary sources. In the project titled
“MAINTENANCE OF PARENT” the researcher has used the doctrinal method of research.
According to it the researcher has used the books and journals available in the law library of
Chanakya National Law University, Patna.

S OURCES OF DATA
Primary Sources- Cr.P.C, Case laws

Secondary sources- Journals, Articles, Websites.

1. PARENT’S RIGHT TO MAINTENANCE
The right of parents to claim maintenance was not recognized under the Code of Criminal
Procedure until 1973. The corresponding provision in Section 488 of Criminal Procedure
Code, 1898 did not make any provision to safeguard the right of either the father or the
mother. This drew the attention of the Joint committee of the Parliament while redrafting the
new code. The ‘The Committee considered the condition and felt that the right of the parents
not possessed of sufficient means, to be maintained by their son should be recognized by
making a provision. The Committee also suggested that where the father or mother is unable
to maintain himself or herself the order for payment of maintenance may be directed to a son
who is possessed of sufficient means. If there are two or more children, the parents may seek
the remedy against any one or more of them. When the new code was drafted the right of
such infirm parents was recognised. Interestingly the code uses the phrase ‘father’ or
‘mother’, but not parent. Perhaps the intention behind this might be to fix the obligation only
on legitimate children and not on those issues born out of wedlock. The term mother in a
restrictive sense means only a natural mother. Doubt may arise whether the phrase ‘mother’
used under Section 125 of the Code includes adoptive and step mothers. The personal law of
Hindus includes step mother in its usage of the term mother.” 3Section 3(20) of the General
Clauses Act refers ‘father’ to include adoptive fathers. Courts have recognized the right of
adoptive mothers to claim maintenance under Section 125. 4 But the position of step mother is
still unsettled. Section 125 is a beneficial provision intended to curb social evil. Towards
fulfilling this objective the term mother must be given a liberal interpretation to include step
mothers also. Judicial opinion on this is not convergent. The High Courts of Orissa 5 and
Allahabad have construed the word liberally and provided relief under Section 125 to step
mother also. Whereas the Madhya Pradesh and Andhra Pradesh High Courts held that the
term mother includes only natural and adoptive mothers but not a step mother and hence
rejected the petition claiming maintenance.

As referred earlier the non usage of the phrase ‘parent‘ under Section 125 (1) (d) raises a
doubt as to whether father or mother of an illegitimate child has any right to claim
maintenance as against their children. No opinion has come so far from the judiciary. The
global changes in the sanctity of marriage and motherhood definitely enjoin a need for

3
Section 20 of the Hindu Adoption and Maintenance Act, 1956.
4
Oona Gowry Sankar Rao v. Oona Rajeswari 1996 Cr.L.J. 1158 (AP). Ram Chandra Balu v. Rakhma Bai, 1992
Cr.L.J. 1919 (Bom).
5
Pitei Bewe v. Larimidhar Jena, 1985 Cr.L.J. 1124 (Ori).
protection of atleast the mother. She must be provided a right under Section 125 to be
enforceable as against her child born out of wedlock.

The code enables the Magistrate to make an order against a son for the payment of monthly
allowance of maintenance to his father or mother who is unable to maintain himself or
herself. The facts that need to be asserted before the court are: (i) The father or mother is
unable to maintain himself or herself, and (ii) The person against whom the claim is sought
has sufficient means to maintain his father or mother and yet has neglected or refused to
maintain them. The provision is one of general application and is not related to the personal
law of the parties. Implicit in the provision is the statutory recognition of the obligation that a
son who has sufficient means is bound to maintain his father or mother who is unable to
maintain himself or herself. Moral indignation has no role to play towards enforcement of the
right under this provision. Though the duty to maintain as between father and son is
reciprocal, a son cannot refuse payment of maintenance to his father on the ground that his
father has not fulfilled his parental obligation towards him at his younger age. An issue of
interest of this sort was raised before the Patna High Court in Pandurang Baburao Dabhade v.
Baburao Bhaurao Dabhade and another.6

A father who had no source of income claimed maintenance from his son. The son
admittedly was fairly well placed in the employment in Central Government. He contested
the claim on the ground that after the death of his mother he and his younger brother were left
uncared for by the father who had married for the second time and that he was brought up and
educated initially by his maternal grandfather and then by his aunt. The father having failed
to fulfill his parental obligation of bringing up his children, the father did not have any right
to claim maintenance and throw the responsibility of maintaining him at his children. The
Trial Court and the Revisional Court negatived the claim, where after the appellant
approached the High Court. The Court did admit the fact of neglect by the father when
applicant was much younger and was imminently in need of care. The Court further observed
"Section 125(1)does not contemplate that the obligation to maintain an aged, infirm parent
who is unable to maintain himself or herself can be enforced only if it is preceded by the
fulfillment of the parental obligation to maintain and bring up the children during the
childhood of the children7. Thus, the duty to maintain as between father and son though

6
1980 Cr.L.J. 256.
7
id., at p.258.
reciprocal the son cannot refuse payment of maintenance to his father on the ground that his
father had not fulfilled his parental obligation towards him at his younger age.

1.1 AUGHTER’S OBLIGATION TO MAINTAIN HER PARENT

A daughter's liability towards her parent is another issue that remained unsettled for
sometime until the intervention of the Supreme Court to clarify the position. The use of the
word ‘his’ in relation to Section 125(d) tends to give an impression that only sons have an
obligation to maintain their father or mother and such an obligation is not there with the
daughter. A normal interpretation will certainly exclude daughters from paying maintenance
towards their father or mother. But such a rigid and narrow interpretation cannot be adopted
while enforcing a social welfare legislation like Section 125 of the Cr.P.C. For precision the
legislation has omitted the word ‘her’ which if used might not have given rise to this conflict.
Moreover, Section 2(1) of the Cr.P.C. read with Section 8 of the l.P.C. will certainly include
daughter within the phrase ‘his’ under Section 125.

It is unfortunate that some of the courts in India have given the word ‘his’ its natural
interpretation and denied the claim of maintenance by parents. 8For the first time, the Kerala
High Court recognized such a right and imposed the duty on daughters to maintain her
parents.” The Court observed that it was as much the duty of a daughter to maintain her
parents as it is the duty of a son. Then came the decision of the Supreme Court in Dr. Mrs.
Vijaya Manohar Arbat v. Kasirao Rajaram Sawai and another 9which held that the word ‘his’
includes both male and female children. This appears to be a reasonable interpretation of the
provision. The Court observed that maintenance of parents being a moral duty there was no
reason why a daughter should be excluded. lnspite of means, if a daughter is to make her
parents stan/e denying the remedy under Section 125 it would amount to injustice. The
Supreme Court did point the need of reading the word ‘his' in Section 125 Cr.P.C. in
conjunction with Section 2(y) of the same code with Section 13(1) of the General Clauses
Act and Section 8 of the Indian Penal Code. The position of daughters who are married,
warrants a differential and cautious treatment. Even after marriage and having gone to live in
another family, if she has her own means there is no bar in imposing the liability on
10
daughters. Courts in lndia have recognized such a duty the part of married daughters.

8
Raj Kumari v. Yesodha Devi, 1978 Cr.L.J. 600 (P&H).
9
87 Cr.L.J. p.977.
10
Ibid
In Dr. Mrs. Vijaya Manohar Arbat v. Kashirao Rajaram Sawai and anotheraz, the appellant
Dr. Mrs.Vijaya Arbat, a Medical Practioner was the married daughter of the respondent
Kashirao Rajaram Sawai through his first wife. Her mother died whereafter the respondent
remarried and was living with his second wife. The respondent filed an application for claim
of maintenance before the Magistrate from his daughter. The appellant raised a preliminary
objection to the maintainability of the application on the ground that Section 125 (1) (d) of
the Code does not entitle a father to claim maintenance from his daughter. The objection was
overruled and the Magistrate held that the application was maintainable. Aggrieved by the
order of the Magistrate, the appellant moved the High Court of Bombay in revision. The High
Court having dismissed the revision the matter came before the Supreme Court. The Supreme
Court emphasised by its ruling that the word ‘his’ does not exclude the parents from claiming
maintenance from their daughter.11

The social economic conditions of the society have changed a vast. Girls now have the right
to own property on their own and the right to inherit property. A large number of them now
take up jobs and are financially sound. They come to occupy responsible position at varying
levels. Politically too they have now a say in the governance of the country. ln short the
condition and status of women is not the same as it prevailed decades ago. Equality exists
now in reality. Moral obligations rest not on the basis of sex. Legal recognition of this moral
right under the provision of Section 125 will not go away from its avowed objective.
Moreover in the society which progressively controls birth at family level and where people
too show inclination towards limiting the number of issues it seems more essential. For
parents with mere daughters this will remain as an indispensable right too.

11
Id., at p.1102

10 | P a g e
2. NATURE OF PROCEEDINGS
Proceedings under section 125 are not civil but criminal proceedings of a summary nature. In
the words of Dua C.J.:

T he proceedings envisaged by chapter XXXVI of the Code cannot be considered to be

purely civil proceedings, though the person in default, against whom maintenance order is
sought, may not be an accused person whose examination without oath is mandatory. . . .

Such maintenance proceedings are. . .criminal proceedings designed by way of summary

process to provide to deserted wives and neglected children adjudication of their civil right of
maintenance up to a limited amount, enforceable through criminal Courts, to avoid the
notorious delays of civil proceedings, which may still be utilized for fuller relief under the
general law in the ordinary civil Courts.12

That the criminal proceedings under section 125 are of civil nature is made evident by clause
(3) of section 126 which empowers the court to make such orders as to costs as may be just.
Further, where the magistrate is satisfied that the person against whom an order for payment
of maintenance is proposed to be made is wilfully either avoiding service, or neglecting to
attend the court, he may proceed to hear and determine the case ex parte. He has also the
power to set aside the ex parte order for good cause shown on an application made within
three months from the date thereof subject to such terms including terms as to payment of
costs to the opposite party as he may think just and proper.13

It is in this context that the argument advanced in some cases could be understood that after
coming into force of the Hindu Adoptions and Maintenance Act 1956, the provision of
section 488, Criminal Procedure Code 1898 stood repealed. In Nanak Chand v. Chandra
Kishore Aggrawal, 14 Sikri J., as he then was, observed:

We are unable to see any inconsistency between the Maintenance Act [Hindu Adoption and
Maintenance Act 1956] and Section 488, Criminal Procedure Code. Both can stand together.
The Maintenance Act is an Act to amend and codify the law relating to adoptions and
maintenance among Hindus. The law was substantially similar before and nobody ever
suggested that Hindu Law, as in force immediately before the commencement of this Act, in
so far as it dealt with the maintenance of children was in any way inconsistent with section

12
Harbhajan Kaur v. Major Sent Singh, A J.R. 19(9 Del. 29% at 3C
13
Proviso to sub-sec. (2) of s. 126.
14
Supra note 7.

11 | P a g e
488, Criminal Procedure Code. The scope of the two laws is different. Section 488 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. 15

Thus, the provision existing in any personal law regarding maintenance of wife, children,
mother and father is separate and distinct. There is no conflict between the two provisions. A
person may sue for maintenance under section 125 of the Criminal Procedure Code. If a
person has already obtained a maintenance order under his or her personal law, the magistrate
while fixing the amount of maintenance may take that into consideration while fixing the
quantum of maintenance under the code. But he cannot be ousted of his jurisdiction.
Similarly, when a civil court is called upon to adjudicate the claim of maintenance of any
person, it would take into consideration the amount of maintenance fixed by the magistrate
under section 125. Sub-section (4) of section 127 specifically lays it down. That sub-section
runs-

At the time of making any decree for the recovery of any maintenance or dowry by any
person, to whom a monthly allowance has been ordered to be paid under section 125, the
Civil Court shall take into account the sum which has been paid to, or recovered by, such
person as monthly allowance in pursuance of the said order. In this regard the provision of sub-
section (2) of section 127 should be noticed which lays down that

"Where it appears to the Magistrate that in consequence of any decision of a competent Civil
Court, any order made under section 125 should be cancelled or varied, he shall cancel the
order or, as the case may be, ^a^y the same accordingly.”

15
Id. at 448. See also Purnasashi Devi v. Nagendra Nath, A.I.R. 1950 Cal. 465, State v. Ishwarial, A.I.R. 1950
Nag. 231; Bela Rani Chatterjee v. Bhupal Chandra Chatterjee, A.I.R. 1956 Cal. 134; Mahabir Agarwalla v. Gita
Roy, 1962 (2) Cr. L J. 528, Ram Singh v. State, A.I.R. 1963 All. 355; Nalini Ran/an v.Kiran Rani, AI.R. 1965 Pat.
442; Subhagi Devi v. Murii Pradhan, A.I.R. 1968 Pat. 139.
 3.ESSENTIAL CONDITION FOR GRANTING
M AINTENANCE
3.1 UFFICIENT MEANS TO MAINTAIN:
According to Section 125(1) of the Code of Criminal Procedure, the person from whom
maintenance is claimed must have sufficient means to maintain the person or persons
claiming maintenance. Here, the expression ‘means’ does not signify only visible means such

If a man is
property o

Earning capacity or ability to earn requires something more than a fit state of mind or body. It requires opportunity
maintenance.

3.2. GLECT OR REFUSAL TO MAINTAIN:

nial of obligation to maintain after demand. A neglect or refusal to maintain may be by words or by conduct. It may be express or implied

The expression wilful negligence is a question of law though it has to be decided on given
facts. ‘Wilful’ means designedly, deliberately of set purpose, that is to say, the mind and the
overt action moving together.

When there is duty to maintain, mere failure or omission may amount to neglect or refusal.
Maintenance means appropriate food, clothing and lodging.
 3.3. 3. PERSON CLAIMING MAINTENANCE MUST BE UNABLE TO
M AINTAIN HIMSELF OR HERSELF:
As the object of Section 125 of the Code is mainly to prevent vagrancy; the requirement to
pay maintenance should be only in respect of persons who are unable to maintain themselves.
The inability of the wife to maintain herself is a condition precedent to the maintainability of
her application for maintenance.

As per Section 125(1) (a) of the Code, maintenance to a wife can be granted when she is
elf. Maintenance means appropriate food, clothing and lodging. By the phrase ‘unable to maintain herself’, it is not meant that she shou
eet, should beg and be in tattered clothes.

living of the person concerned. The amount of maintenance should be such that the woman should be in a position to maintain hersel

self. The wife who is hale and healthy and is adequately educated to earn for herself but refuses to earn and claims maintenance from her
intenance.

3.4. 4. Special requirements where maintenance is claimed by wife:

entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, from

‘living in adultery’ has been consistently held to mean an outright adulterous conduct where
the wife lives in a quasi-permanent union with the man with whom she is committing
adultery.

(ii) Wife must not refuse without sufficient reasons to live with her husband:
According to’ Section 125(4) of the Code of Criminal Procedure, no wife shall be entitled to
receive an allowance for the maintenance from her husband, if she refuses to live with her
husband. Wife must not refuse to live with her husband without sufficient reason to get
maintenance. What could be considered as a sufficient reason for the wife’s refusal to live
with her husband would depend upon the facts and circumstances in each case.

Civil Court’s finding as to desertion by wife is binding on the criminal Court hearing petition
for maintenance. But, if the civil Court comes to hold, while directing divorce, that the wife is
not entitled to maintenance, it would not deprive her of her right to claim maintenance in a
criminal Court though the criminal Court has to consider the decision of the civil Court. In
the same way the civil Court’s finding on a fact on which interim maintenance is rejected by
it is not binding on the criminal Court.

As per explanation to Section 125(3) of the Code, if a husband has contracted marriage with
another woman or keeps a mistress, it shall be considered to be a just ground for his wife’s
refusal to live with him.

(iii) The wife must not be living separately by mutual consent:

As per Section 125(4) of the Code of Criminal Procedure, no wife shall be entitled to receive
an allowance for the maintenance from her husband if they are living separately by mutual
consent.

A divorced wife cannot be characterised as a wife living separately by mutual consent. A

divorced wife is a person who lives separately from her former husband by virtue of a change
in status consequent upon the dissolution of the marriage.

A divorce decree by mutual consent to live separately cannot disentitle the wife to claim
maintenance. The concept of living separately by mutual consent arises so long as the
marriage subsists and the parties agree to live separately by consent. Where the marital
relations have been terminated by an agreement, the wife would be entitled to claim
maintenance from her ex-husband so long she remains unmarried and is unable to maintain
herself. However, in the case of divorce by mutual consent if the wife had relinquished her
right to maintenance, she cannot later claim maintenance.

DNA Test for determination of parentity cannot be directed in a petition under Section 125.—
In a proceeding under Section 125 of Cr.P.C. the Magistrate was not justified in directing DNA
test of the child to determine parentity.
4. PROCEDURE AND PROCEEDING

The procedure laid down in this Chapter is enacted as a measure of social justice has,
therefore, to be essentially different from the procedure laid down in the subsequent Chapters
ofthe Code for a punitive trial. The jurisdiction ofa Magistrate is not strictly a Criminal
Jurisdiction.16

A case under S. 125, CrPC is not barred under Family Courts Act. The proceedings for
maintenance are in the nature of civil proceedings though the criminal process is applied for
the purpose ofsummary and speedy disposal of such matter in the interest of society.17

An order made under S. 125 is tentative and is subject to the final determination of rights in
civil Court.38 Section 112 of the Evidence Act have no application to a proceedings under
Chapter IX of the Code of Criminal Procedure, which is summary and provisional in nature
and does not decide finally the respective rights of the parties.18

A wife or a child has two remedies available for securing maintenance. The first is a suit in a
Civil Court, in which a decree may be obtained for an amount commensurate with the status
or means ofthe party liable. Even arrears of past maintenance can be recovered. The
maintenance can be made a charge on the property. The decree can be enforced against his
property in case of his death. The second remedy is a proceeding under this section. It is a
cumulative remedy.19

This remedy is open to a wife or child either legitimate or illegitimate. The mere existence of
a decree of a Civil Court awarding maintenance to a wife does not oust the jurisdiction of a
Magistrate to make an order under this section on the application of the wife. The Magistrate,
however, in such a case, should make it clear in his order that anything paid under the decree
of the Civil Court would be taken into account against anything which he may order to be
paid.

In proceedings under S. 125 CrPC, the Magistrate cannot decide the validity of marriage
between the parties.20 The findings of the Civil Court are binding on the Magistrate in some
respects. Where an application of a woman under S. 9 of the Hindu Marriage Act, 1956, for

16
5 Parthasarathy v. Banumathy , 1988 (3) crimes 642,645 (Mad
17
Rajesh Kochar v. Reeta Kumari, 2002 cr LJ 3357 (3358) : 2002 (2) PatLJR 277 : 2002 (4) Rec cri R 395 (Pat)
18
K.M.S Mani v Tamizharasi, 1988 (2) Crimes 806 (Mad)
19
Lingappa Goundan v. Esudasan, ( 1903) 27 Mad 13,15
20
Seerangan v Selvi (2003) 2 Mah LW (cri) 540 : (2003) 3 Rec Cri R 486 : 2003 Cr LJ 2092 (2094) Mad
restitution of conjugal rights had been dismissed on the ground that it was she who had
deserted her husband, that finding was binding on a ,Criminal Court which dealt with her
application under S. 125 for maintenance on the ground ofdesertion by husband.21

Civil Courts' decree that the petitioner is not the legally wedded wife of the respondent unless
it is a nullity or suffers from suppression of acts binds the petitioner and the petitioner is not
entitled to maintenance. It is settled by various judicial pronouncements that interim
maintenance pending the final disposal of an application under section 125 can be awarded in
case the court is satisfied that there are sufficient reasons to do so. Interim maintenance may
be granted even on filing of affidavits.

4.1 UANTUM OF MAINTENANCE

The earlier provision that only a sum of money not exceeding Rs. 500/- should be ordered to
be paid has now been omitted by an amendment ofthe year 2001. After this amendment the
maximum limit ofRs. 500/- has been removed and now the amount of allowance for the
maintenance or the interim maintenance shall be in the discretion of the Magistrate. Of course
no other payment in other shape such as tuition fees or medical expenses can be ordered to be
paid in addition to the allowance for the maintenance or interim maintenance.

The Magistrate can also not order the husband to provide other additional facilities like house
accommodation etc. Every wife and every child and father and mother can be awarded such
amount of allowance of maintenance or interim maintenance which the person ordered has
the means to pay. The amount of maintenance allowance or the interim maintenance can be
varied if a change in the circumstances is brought to the notice of the court. While
determining the amount of maintenance or interim maintenance the court will take into
consideration the existing situation, such as that one of the child, was a student of some
course involving heavy expenditure, at the time of passing order.22

Where the trial court and the court of appeal have given concurrent finding about amount of
maintenance, its correctness cannot ordinarily be questioned in revision petition in the High
Court.23However, the rate cannot be fixed on an abstract and hypothetical thing like capacity to
earn money.While awarding the amount of maintenance allowance or interim maintenance

21
Teja Singh vs Chhoto 1981 CrLJ1467 (Punj)
22
Nanak Chand v. Chandra Kishore, A.I.R. 1970 S.C. 446.
23
Jagir Kaur v. Jaswant Singh, A.I.R. 1963 S.C. 1521
the court shall fix it taking all the items of maintenance together and separate amount may be
ordered for each ofthe claimant.

It was held in Sudeep Chaudhary v. Radha Chaudhary, 24 that the amount awarded under
section 125, Cr. P.C., for maintenance was adjustable against the alimony amount awarded in
the matrimonial proceeding under Section 24 of the Hindu Marriage Act, 1955 and was not to
be given over and above the same. Whether maintenance be granted from the date of the
Order passed by the Family Court or from the date of application made under Section 125 of
the Code There is difference on opinion among different High Courts on the aforesaid issue.

24
1999 Cr. L.J. 466.
C ONCLUSION AND SUGGESTIONS

The remedy under Section 125 is speedy and inexpensive, as compared to personal laws. The
provision relating to maintenance under any personal law is however, distinct and separate
from Section 125. There is no conflict between both the legal provisions. A person is entitled
to maintenance under Section 125 despite having obtained an order under the applicable
personal law. It is also evident from the recent judicial decisions that the Indian courts have
been progressively liberal in deciding cases pertaining to maintenance. The bone of
contention however is whether a mistress can become entitled to receive maintenance merely
from the factum of living with a married man, coupled with the dispute as to whether the
bigamy is legally permissible. While it appears from the decisions passed under the personal
laws that the same may be possible, judicial decisions pertaining to Section 125 continue to
uphold the view that maintenance can be claimed only by a lawfully wedded wife. Although
Maintenance should be gender neutral and should be applicable both for husband and wife
respectively for the greater perspective of the society, still many women are being denied to
claim their rights of maintenance. The section is a measure of social justice and specially
enacted to protect women and children. By virtue of judicial pronouncements and other steps,
rights of women has been restored but it will become fruitful only when under lying thinking
are changed, the women should emancipate themselves educationally, economically and
socially for their well being only and then they can understand their rights and worth and
thereafter the social upliftment of the whole community is possible.

S UGGESTIONS

 In a maintenance order passed under Section 125 of Cr. P.c., husband/father should be
liable to undergo rigorous imprisonment (to serve as a deterrent) for a term that may
extend to 6 months and should also be liable to pay a fine equal to twice the amount
of arrears of maintenance or permanent alimony.
 In many cases where the husbands are the petitioners and maintenance orders are
passed against them, even after flouting these orders their matters continue to proceed.
Principally there should be a stay of the proceedings. The judges must not permit the
 defaulting petitioner to flout the orders of the same court before which he appears. In
this regard judges can play an active role.
 While assessing the income or assets of the husband for ascertaining the maintenance
amount, the judges must take assistance from social workers, NGOs and probation
officers who could, inter alia, draw inference from , standard of living of the family.
Amount of maintenance must be deposited in the court in the beginning of every
month, to ensure that the wife receives her dues in time.
 An important recommendation which was made by the Committee on the Status of
Women for the effective realization of amounts granted under maintenance orders,
namely, all maintenance orders should be deducted at source by the employer and that
in other cases arrears of maintenance should be recovered as 'arrears of land revenue
or by distress'. These statutory recommendations, which will mitigate the hardships of
women, still await implementation.
 The grant of maintenance should be made solely on the basis of need, and legislative
provisions that limit maintenance on the basis of subsequent conduct should be

deleted.
 Maintenance claims should be considered as secured debts.
 The recommendations contained in the 73rd Report of the Law Commission relating
to enforcement of maintenance claims must be implemented.
 Maintenance amounts granted by the courts should be deducted at source by
employers from salaries, and in other cases, arrears of maintenance should be
recoverable as arrears of land revenue, or by distress.
 The burden should be shifted to the earning member to prove his or her income.

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B IBLIOGRAPHY
B OOKS
 Bholeshwarnath & Malik, Code of Criminal Procedure, Eastern Book Company,
Lucknow, 1976.
 Durga Das Basu, Code of Criminal Procedure, Prentice Hall, New Delhi, 1979.
 Gandhi, A.B., The Law of maintenance of Wifes, Children and Parents in lndia, Milan
Law Pub., Bombay, 1982.
 Kelkars, R.V., Criminal Procedure (Revised by Dr.K.N. Chandrasekharan Pillai),
Eastern Book Company, Lucknow, 1993.

A RTICLES

 Brown, Neville, National Assistance and the liability to maintain ours‘ family,
1955, 18 Modern Law Review, 113.
 Newton, C.R., Variation of maintenance Orders, (1969) 119 New Law Journal,
831.

J OURNALS

 All India Reporter

 Criminal law journal
 Supreme Court Cases

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