CODE OF CRIMINAL PROCEDURE, 1973: PREVENTIVE MEASURES

MAINTENANCE OF WIVES, CHILDREN AND PARENTS

It is the legal obligation of the concerned person to take care and provide maintenance to their respective dependants as of wife, children and parents. This concept is primarily should be dealt in Civil law and it provides the provisions as well. But the necessity of including the potion under the criminal is because of two reasons. Firstly, being the dependants her vulnerable group, some discriminations are occurring in the manner of offences. Secondly, to give effective and speedy limited relief or remedy for these neglected people from the concerned person who have the responsibility to look after. By this action, it can be ensured that the dependants are saved from being destituted, beggared. Under the criminal procedure code, sections 125 to 128 under chapter IX deals with the order for maintenance of wives, children and parents.

ORDER FOR MAINTENANCE OF WIVES, CHILDREN AND PARENTS (SECTION 125)

(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, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time shall direct for the same.

In Yamunabai v. Anantrao[1], a divorced woman cannot exist unless initially she was a legally wedded wife. This specific inclusion of a divorced woman in the term “wife” would clearly show that the term “wife” would only mean legally wedded wife.

(2) Any such allowance for the maintenance or interim maintenance and expenses for proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.

(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 each month’s [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if made sooner.

Special provision for maintenance of minor married girl, a minor married girl unable to maintain herself can claim maintenance from her husband if he, having sufficient means, neglects to maintain her.

In Rajathi v. C. Ganesan[2], the Supreme Court opined that it may be difficult in certain cases to prove the second marriage and therefore court need not look into the marriage laws for granting maintenance in cases where the husband is allegedly living with another “woman”.

(4) No wife shall be entitled to receive an [allowance for the maintenance or the interim maintenance and expenses of proceeding as the case may be,] from her husband under this section 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.

(5) On proof that any wife in whose favour an order has been made under this section 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.

The Supreme Court has now clarified in Danial Latifi v. Union of India[3] that the Muslim Women (Protection of Rights on Divorce) Act, 1986 requires the Muslim husband to make provision for the future maintenance of the divorced Muslim wife.

PROCEDURE (SECTION 126)

(1) Proceedings for maintenance under Section 125 may be taken against any person in any district,

(a) where he is or

(b) where he or his wife resides or

(c) where he last resided with his wife, or as the case may be, with the mother of the illegitimate child.

The proceedings under Section 125 are in the nature of civil proceedings, the remedy is a summary one and the person seeking the remedy is ordinarily a helpless person. So, the words in Section 126(1) should be liberally construed without doing any violence to the language in jagir Kaur v. Jaswant Singh[4].

(2) All evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed for summons cases:

Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex – parte and any order so made may be set aside 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 the Magistrate may think just and proper.

(3) The Court in dealing with applications under Section 125 shall have power to make such order as to costs as may be just.

ALTERATION IN ALLOWANCES (SECTION 127)

(1) On proof of a change in the circumstances of any person, receiving under Section 125 a monthly allowance, or ordered under the same section to pay a monthly allowance to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration in the allowance as he thinks fit.

(2) 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 varied, he shall vary the order accordingly.

(3) Where any order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the magistrate shall, if he satisfied that,

(a) the woman has, after the date of such divorce, remarried, cancel such order as from the date of her remarriage.

(b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order,

          (i) in the case where such sum was paid before such order, from the date   on which such order was made.

         (ii) in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman.

(c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights after divorce, cancel the order from the date thereof.

(4) 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 Section125, the civil court shall take into account the sum which has been paid to, or recovered by, such person as monthly allowances in pursuance of the said order.

An application for an increase or decrease of the allowance can be made consequent upon a change in the circumstance of either party at the time of the application for alteration in Meenakshi Ammal v. Balakrishnan[5]. It has been held in Ashok Yeshwant Samant v. Suparna Ashok Samant, that a court cannot insist upon payment of maintenance as a precondition to hearing his petition under Section 127[6].

ENFORCEEMNT OF ORDER OF MAINTENEANCE (SECTION 128)

A copy of the order shall be given without payment to the person in whose favour it is made, or to his guardian, if any, or to the person to whom is to be paid, and such order may be enforced by any magistrate in any place where the person against whom it is made may be, on such magistrate being satisfied as to the identity of the parties and the non – payment of the allowance, or the case may be, expenses due. Section 128 makes the maintenance order enforceable anywhere in India, even in a place outside the territorial jurisdiction of the Magistrate who passed the order of maintenance. In jangsm Srinivasa Kao v. Jangam Rajeswar, it was held that, if the reasons given by the wife for refusing to live with the husband are not satisfactory, the Magistrate may refuse to execute the order rather than cancel it.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this:
search previous next tag category expand menu location phone mail time cart zoom edit close