Jurisdiction And Enforcement Of The Order Of The Magistrates Under Section 125, Cr.P.C, 1973.

By | August 24, 2019
Jurisdiction And Enforcement Of The Order Of The Magistrates Under Section 125, Cr.P.C, 1973.

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The article discusses the Jurisdiction And Enforcement Of The Order Of The Magistrates Under Section 125, Cr.P.C, 1973. Section 125 to 128 of Criminal Procedure Code, 1973 deal with the grant of maintenance by a person who neglects to maintain his wife, parents or children. It is a common legal axiom that says “ubi jus ibi remedium”, i.e. where is right there is the remedy.

On one hand Section 125 vests the right of maintenance upon such neglected persons whereas sections 126 to 128 provide for the jurisdiction, order and enforcement of such order of the Magistrates.

Jurisdiction of Magistrates

According to the Code, only “Judicial Magistrates of the First Class can deal with and decide petitions for maintenance”[1] under Chapter IX. It has been provided by clause (g) of Section 461 that “if any Magistrate, not being empowered by law in this behalf, makes an order of maintenance, his proceedings and such order shall be void”[2].

Under Section 126, proceedings for maintenance “may be taken against any person in any district:

  • Where he is or
  • Where he or his wife/parents/children reside or
  • Where he last resided with his wife or as the case may be with the mother of his illegitimate child”[3].

However, the jurisdiction of the Magistrates under this provision is ousted by Section 7 (2) (a) of the Family Courts Act, 1984. According to this section, “wherever family courts have been established the jurisdiction to grant maintenance shall be exercised by family courts alone”[4]. The court in Chimata Nagarathnamma v. Chimata Naganail observed that “the alternative forums have purposefully given by Parliament so as to a discarded wife or helpless child to get the much-needed and urgent relief in one or the other of the three forums that are convenient to them”[5].

Now, since the provision is quite elaborate, the issue that often arises is that whether a woman deserted by her husband and does not have a permanent place, will have to initiate a proceeding before a court where she last resided with the husband. Thus, when it comes to the interpretation of Section 126, the apex court held in Jagir Kaur v. Jaswant Singh that “the words in Section 126(1) should be liberally construed without doing any violence to the language” [6].

Sections 125 to 128 of the code is in the nature of remedial legislation and therefore, for the convenience of the persons claiming remedy under this provision, “the venue of the proceeding is made wide enough to include any place where she may be residing on the date of the application for maintenance”[7]. However, the jurisdiction of the courts in this section has been restricted several times by the High Courts.

Besides the residential place of the person against whom the claim is made, the courts have held that the district and residence of the petitioner are also relevant. According to the courts, both the parties should be within the jurisdiction of the court[8].

Besides the wife, the parents of the person can also claim maintenance under this provision “where they reside or where their children reside”[9]. Etymologically, the word “reside” would mean to have a permanent place of residence; where a person enjoys food, shelter and clothing. In Jagir Kaur, the court observed that “the expression ‘resides’ means something more than a flying visit and does not include a casual stay in a particular place”[10]. To determine the meaning of ‘reside’ what is necessary “is the intention to stay for a period, the length of the period depending on the circumstances of the case”[11].

Order of Maintenance

Section 125 (1) of the Cr.P.C empowers the courts to order maintenance to helpless related-persons to prevent criminal conduct compelled by destitution and starvation. To comprehend the nature and circumstance in which such an order can be passed, it is essential to reproduce the section.

Section 125: 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 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 (b) 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,-

(a) ” 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;

(b) ” Wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

After complete perusal of the jurisdiction and evidence brought on record by both the parties, if the court is satisfied that the essential conditions under Section 125 for the grant of maintenance have been satisfied, “the court may order the person proceeded against to make a monthly allowance for the maintenance of the applicant”[12].

The “upper limit of the amount of maintenance, i.e. ₹500/- has been now removed by Parliament”[13] and the discretion is bestowed upon the deciding court to determine an appropriate amount to be paid as a whole and the duration in which it has to be paid.

The proviso to §125(1) also empowers the court to “order a father of a legitimate or illegitimate child minor female child to make such allowance as necessary until she attains majority”[14]. However, the code uses the word “may” under the provision which implies discretion and direction. Thus, discretion is conferred upon the courts to “justify the requirement of the situation considering the equity of each case separately”[15].

With respect to the circumstances that should be observed by courts while passing the order of maintenance, the apex court observed that “object of these provisions being to prevent vagrancy and destitution, the Magistrate has to find out what is required by the wife to maintain a standard of living which is neither luxurious nor penurious but is consistent with the status of the family”[16].

In Sudeep Chaudhary v. Radha Chaudhary[17], the apex court held that the expression “in the whole” means that the maintenance allowable to the claimant should not exceed amount ordered under Section 125 of the Code. Thus, if a claimant has obtained maintenance under the Hindu Marriage Act or any other personal law, such amount will be deducted with the maintenance ordered under Section 125.

Besides, the order of maintenance, the court is also empowered to grant any interim maintenance as a relief to the claimant. Now, let us assume, a situation where the wife was subjected to cruelty for 6 years and after such brutality, she accumulated all the energy and decided to move to her brother’s house and file a petition for divorce and maintenance.

Now, it is not possible for the woman to undertake the expense of fees of her two children and the cost of living in a new city and she cannot wait for the order of the court. The issue arose before the Supreme Court in Savitri v. Govind Singh Rawat[18] wherein the court allowed such interim orders holding that the magistrate has implied powers under §125 to do so.

Enforcement of Order of Maintenance

What is the use of an order if the person against whom it is passed does conform to it? Therefore, to avoid any injustice to the already suffering victim, the law always provides for an enforcement mechanism. The relevant procedure for enforcement of an order is provided under §125 (3) read with §128 of the Code.

If any person against whom an order of maintenance is passed fails to furnish the amount with registry of the court within the stipulated period, the claimant can make an application before the court of Judicial Magistrate of the First Class to enforce the order of maintenance and order the person to adhere to the previous order and make the due payment.

The essential ingredients under this provision are:

  • The application can be made in any court of Judicial Magistrate with the certified copy of the order of maintenance irrespective of the jurisdiction of the court[19].
  • The application must be made within 1 year of the date of default of payment.
  • The person who fails to make payment of maintenance must not have sufficient reasonable grounds for doing so.
  • The court, if satisfied that the non-compliance of the order was without sufficient reason, will issue a warrant of arrest against such person.
  • The defaulting person can be sent to imprisonment for 1 year or until he makes the payment whichever is earlier.
  • The defaulting cannot put any unreasonable condition for payment of such money. For instance, if the person asks his wife to stay with him and she has reasonable cause to deny, he cannot evade payment saying the condition was not fulfilled.

In Ram Bilas v. Bhagwati Devi,[20] the court laid down the rule that for recovery of one year’s maintenance, the person is sentenced to one month’s imprisonment; for one month’s accrued maintenance, the imprisonment shall be of one week. The rule does not bind other courts as it was merely an obiter but, however, the spirit was to set a fixed system for non-payment of maintenance amount.

Section 128 acquires importance for enforcement of an order of maintenance because this provision requires the court to provide the claimant with a certified copy of the order of maintenance to the actual claimant or his/her guardian or any other authorized person to whom the maintenance is payable. The copy of the order must be provided free of cost and without any delay.

[1] §125, Cr.P.C, 1973.

[2] §461 (1) (g), Cr.P.C, 1973.

[3] §126 (1), Cr.P.C, 1973.

[4] §7(2)(a), Family Courts Act, 1984.

[5] Chimata Nagarathnamma v. Chimata Naganail, 1991 Cri. L.J 291 (AP).

[6] Jagir Kaur v. Jaswant Singh, AIR 1963 SC 1521.

[7] 41st Parliamentary Joint Committee Report at 306 (2008).

[8] Shakuntala v. Thirumalayya, (1996) 2 MLJ 326 and Abdul Qayyum v. Durdana Begum, (1974) Cri. L.J 873 (AP).

[9] N.B. Bhikshu v. State of A.P., 1993 Cri. L.J 3280 (AP).

[10] Supra note 6.

[11] Balakrishna Naidu v. Sakuntala Bai, (1943) 44 Cri. L.J 741.

[12] K.N. Chandrasekharan Pillai, R.V. Kelkar’s Criminal Procedure 858 – 59 (6th ed. 2014).

[13] Code of Criminal Procedure (Amendment) Act, 2001.

[14] §125(1), Cr.P.C, 1973.

[15] Pillai, supra note 12 at 859.

[16] Bhagwan Dutt v. Kamla Devi, AIR 1975 SC 83.

[17] Sudeep Chaudhary v. Radha Chaudhary, (1997) 11 SCC 286.

[18] Savitri v. Govind Singh Rawat, (1985) 4 SCC 337.

[19] §128, Cr.P.C, 1973.

[20] Ram Bilas v. Bhagwati Devi, 1991 Cri. L.J 1098 (All).

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