Persons Entitled To Claim Maintenance Under Section 125 Of The Cr.P.C | Overview

Introduction
Applicability of the Provisions
Persons Entitled to Claim Maintenance
Conclusion
References

Introduction

The essay discusses the Persons Entitled To Claim Maintenance Under Section 125 Of The Cr.P.C. Section 125 to 128 of the Code of Criminal Procedure, 1973 provide for “speedy, effective and rather inexpensive remedy” to certain persons who are specifically entitled to claim maintenance under these provisions. The subject matter of these provisions technically deal with family matters and therefore, it is in the nature of a civil dispute.

Nevertheless, the rationale for imbibing these provisions into Cr.P.C is to accord an accelerated and economical remedy than that is available in civil courts. The Supreme Court in Bhagwan Dutt v. Kamla Devi justified the presence of Section 125 under Cr.P.C by stating that “these provisions are aimed at preventing starvation and vagrancy leading to the commission of the crime” [1].

Applicability of the Provisions

The provisions entailed under Sections 125 to 128 of the Code are applicable to all persons irrespective of their religions and runs parallel to the personal laws of the parties. It means that even if a personal law has specific and detailed provision for maintenance, it cannot make the provision under Cr.P.C inapplicable. In Nanak Chandra v. Chandra Kishore Aggarwal, the apex held that “sections 125 to 128 have no relationship with the personal law of the parties” [2].

The application of these provisions went through a great deal of turmoil during 1985 when the apex court decided the landmark case of Md. Ahmed Khan v. Shah Bano Begum[3]. The court, in this case, granted the maintenance to the respondent-wife who belonged to Islam where it is believed that no maintenance needs to be paid to the wife since the husband pays dower (reverse of dowry) at the time of marriage.

The controversy led to the enactment of Muslim Women (Protection of Rights on Divorce) Act, 1986 to reverse the effect of the judgment in Shah Bano. However, in Daniel Latifi v. Union of India[4], the apex court once again upheld its decision in Shah Bano and the applicability of the Act was held independent of Section 125.

Persons Entitled to Claim Maintenance

Under certain circumstances mentioned under Section 125, a person is required to pay maintenance to the following persons:

His Wife: The first person entitled to claim maintenance is the wife of the person who is required to pay maintenance. In Savitabenben Bhatiya v. the State of Gujarat, the apex court held that for the application of this section the “term ‘wife’ means is a legally wedded wife” [5]. Thus, there are two essential conditions to claim maintenance under this provision by a wife; firstly, the wife must be legally wedded wife and secondly, the marriage must be valid in the eyes of law.

In Anupama Pradhan v. Sultan Pradhan[6], the court laid three criteria to determine the status of husband-wife. First, the persons claiming to be husband and wife must have lived as spouses for a considerable period of time. Second, it should be in the knowledge of the public that they live together as husband and wife and third, the parties must have been married according to their personal laws.

With respect to the condition of living together for a certain period and with knowledge of the public, the burden is on the wife to prove that they have been living together as husband and wife before their separation. Further, explanation (b) to Section 125 (1) provides that a “the term wife also includes a divorced woman”. A woman cannot be divorced unless she was a legally wedded wife of the man. Thus, the right to maintenance has been extended to a divorced woman as well.

Now, with respect to the validity of a marriage, it always depends upon the rituals and culture and the personal laws applicable on the parties to decide whether the marriage was valid or not[7]. For instance, in Naresh Chandra v. Reshma Bai[8], the court observed that a “marriage by an exchange of garlands is invalid” since the parties were Hindu.

Moreover, a second marriage solemnised in the subsistence of the first marriage is invalid and the second wife cannot legally claim maintenance under this provision. When a person claims that his second marriage is invalid since it occurred without obtaining a decree of divorce from the first marriage, the burden lies on him to prove that his first marriage is valid and second is, therefore, invalid[9].

The courts can, however, pass an order of maintenance in case of the second marriage as well to prevent destitution leading to criminal conduct. In Rameshchandra Daga v. Rameshwari Rameshchandra Daga[10], the apex court held the second wife is entitled to maintenance under and averred that this “decision holds good even in case of Section 125 maintenance”.

The definition of “wife” has been expanded by the courts to meet the changing paradigms of society. In a modern society where parties are involved in a live-in relationship, several instances have been witnessed where on the promise to marry, the man deceives the woman to live with him and maintain a physical relationship. Now, in the case of live-in relationship, the parties live like husband and wife and to the knowledge of the public (in most of the cases) but are not legally married.

Thus, this question arose before the Hon’ble Supreme Court in D. Velusamy v. D. Patchaiammal[11] and Chunmuniya v. Virender Kushwaha [12]in 2010 and 2011 respectively. The court, in both cases, held that “a woman who was in a marriage-like relationship, though not a legally wedded wife under Section 125 could claim maintenance under the Cr.P.C and the Protection against Domestic Violence Act”.

His Minor Child: The section also obliges every person to maintain his minor child. The essential traits of this part of the provision can be enlisted as under:

The child must be a minor. Explanation (a) to Section 125 (1) defines ‘minor’ as any person who qualifies the criteria laid down in the Indian Majority Act, 1875 to be referred to as a minor. Section 11 of the Act of 1875 requires a person to be below the age of 18 years to be called a minor in the eyes of law.
The child can be a male or a female. The only requirement is that it must be a minor and not be able to maintain itself.
The child can be legitimate or illegitimate; married or unmarried. A minor married girl is entitled to maintenance from her husband and her father both at once. However, if the father can prove that the husband is able to maintain the minor girl he can avoid such maintenance, but if the husband is not able to maintain the minor girl the father is bound to maintain her.
The religion of the child is immaterial to decide maintenance under section 125. In Noor Saba khatoon v. Md. Quasim, the Apex court held that a person cannot be absolved from his obligation to maintain his child only because of his religion. A Muslim father similar to a Hindu father is responsible to pay maintenance for his children under this provision of Cr.P.C.

His Abnormal Child: The obligation of a father to maintain his minor child, as mentioned above, is extended to a child who has attained the age of majority if that child is “by reason of any physical or mental disability is unable to maintain itself”. The child can be a male or female, legitimate or illegitimate and married or unmarried. However, the father is not responsible to maintain his married daughter if she has attained the age of majority whether she is normal or abnormal. The responsibility to maintain a major married girl is of the husband and no one else.

His Father or Mother: With the change in time and societal needs, the structure of the family changes too. As seen today, families are more nuclear and children are not willing to take responsibility for their parents. This was anticipated by the legislators and to ensure that children maintain their parents and they do not become an offender or a victim of the certain offence, Section 125 includes parents to be maintained by their children.

The provision uses the term “his father or mother” which implies that the duty is bestowed upon the son to maintain his parents. However, the Kerala High Court, in Areefa Beevi v. K.M. Sahib[13] analysed the section and stated that “the expression his father or mother must be taken as to have the meaning her father and mother as well”.

Now, the next most significant issue raised with respect to this provision is whether the terms “father” and “mother” include “adoptive father or mother” and “stepfather or stepmother”. According to Section 3 (20) of the General Clauses Act, 1897, “father shall include an ‘adoptive father’”, but, however, “mother” has not been defined to include the adoptive mother. In such a situation, the Bombay High Court used its interpretative power and held that “mother” shall include “adoptive mother” as well[14].

Now, when it comes to stepmother or stepfather, the High Courts of Bombay, and Gujarat have the same opinion. In Ramabai v. Dinesh [15]and Havaben v. Razakbhai[16], these courts observed that “having regard to the object and intention of Section 125, the term “mother” will have its natural meaning and will not include stepmother”. The Supreme Court, on the other hand, though agreed with the conclusions of the High Courts, yet it further opined that “a childless stepmother may claim maintenance from her stepson provided she is a widow or her husband, if living, is also incapable of maintaining her”. The court further added that a stepmother also cannot claim maintenance if she has her own natural-born sons or daughters.

Conclusion

Thus, the provision contemplates the public duty of a person who is very much able to maintain himself to maintain those who are unable to maintain themselves. The provision does not follow a quid pro quo system and it is no defence to claim that the parents or his wife did not satisfy his needs or requirements and hence, he is not obliged to maintain them.

The provision is mandatory in nature and the person can approach a competent Magistrate to deal with the issue. It is also very important to note that an earlier maximum amount of maintenance allowed was Rs. 500/- in total which was done away by the 2001 amendment and it is now at the discretion of the Magistrate to decide the sum of compensation.

References:-

V. Kelkar, Lectures on Criminal Procedure, (6^th ed. 2017).
N. Chandrashekaran Pillai, R.V. Kelkar’s Criminal Procedure, (6^th ed. 2018).
Ratanlal & Dhirajlal, Commentary on the Code of Criminal Procedure, (18^th 2006).
K. Takwani, Criminal Procedure, (4^th ed. 2014).

[1] Bhagwan Dutt v. Kamla Devi, (1975) 2 SCC 386.

[2] Nanak Chandra v. Chandra Kishore Aggarwal, (1969) 3 SCC 802.

[3] Md. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556.

[4] Daniel Latifi v. Union of India, (2001) 7 SCC 740.

[5] Savitabenben Bhatiya v. State of Gujarat, (2005) 3 SCC 636.

[6] Anupama Pradhan v. Sultan Pradhan, 1991 Cri. L.J 3216 (Ori).

[7] Kumari Bai v. Anandram, 1998 Cri. L.J 4100 (MP).

[8] Naresh Chandra v. Reshma Bai, 1992 Cri. L.J 579 (MP).

[9] Vimala v. Veeraswamy, (1991) 2 SCC 375.

[10] Rameshchandra Daga v. Rameshwari Rameshchandra Daga, AIR 2005 SC 422.

[11] D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469.

[12] Chunmuniya v. Virender Kushwaha, (2011) 1 SCC 141.

[13] Areefa Beevi v. K.M. Sahib, 1983 Cri. L.J 412 (Ker).

[14] Baban v. Parvatibai, 1978 Cri. L.J 1436 (Bom).

[15] Ramabai v. Dinesh, 1976 Mah. L.J 565 (Bom).

[16] Havaben v. Razakbhai, 1977 Cri. L.J 381 (Guj).