Sections 125 of CrPC provide for a speedy, effective, and rather an inexpensive remedy against persons who neglect or refuse to maintain their dependent wives, children, and parents. Though the subject matter of these provisions is civil in nature, the primary justification for their inclusion in the Criminal Procedure Code is that a remedy more speedy and economical than that available in civil courts is provided for by these sections for the benefit of needy persons mentioned therein. It may also be said that these provisions are aimed at preventing starvation and vagrancy leading to the commission of a crime.
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Maintenance Under Section 125 CrPC and Domestic Violence ACT
This act is applicable to all persons belonging to all religions and has no relationship with the personal law of the parties. It may also be noted that as the exercise of the powers to grant maintenance is of a judicial character, only Judicial Magistrates of the First Class have been empowered to deal with such matters of maintenance. Sections 125-128 prescribe a self-contained speedy procedure for compelling a man to maintain his wife, children, and parents. Though the relief given under this chapter is essentially of a civil nature, the findings of the magistrate are not final and the parties can legitimately agitate their rights in a civil court even after the order of the magistrate. The amount of maintenance under “section 125 of crpc ” will be decided on the basis of the living before the separation and income of the husband.
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Which wife cannot claim maintenance?
- If she had remarried to someone else then she cannot claim for maintenance under section 125 of crpc.
- Is she is practicing adultery
- If she has sufficient means to maintain herself.
- If she refuses to stay with her husband without any sufficient cause.
- If there is a separation due to mutual consent.
What do you mean by unable to maintain herself?
The lifestyle or status before separation. She should get maintenance to enjoy the same lifestyle or status after separation. If the wife is not sufficient to maintain herself, then the husband is liable to provide maintenance.
Persons entitled to claim maintenance
- His wife: The term ‘wife’ appearing in Section 125(1) means only a legally wedded wife.12 In the absence of a legal and valid marriage, the mere fact that the parties had lived together as husband and wife to the knowledge of the public or otherwise could not confer on the woman status of a ‘wife ’. The fact of the parties have lived together as husband and wife for a long time would be relevant to raise only a presumption in law of their being husband and Wife.13 However such a presumption is rebuttable on the proof of the invalidity of the marriage. The conSideration of the other provisions of Section 125 would strengthen the above View. firstly, the section while specifically providing for both legitimate and illegitimate claims of their wives by just divorcing them under the above said personal law.
- Section 125 applies both to women who have been divorced before or after the new Code came into force. Under that section, a present right has been conferred in relation to a past event and it will not make the section retrospective. Apart from that, the section is both remedial and beneficial in character and in such circumstances, it is the duty of the judge to construe it in such a manner as to suppress the mischief and advance the remedy. Therefore it has been held that, under Section 125(1), even a woman divorced before April 1, 1974 (Le. the date of coming into force of this Code) could claim maintenance, provided the other conditions are satisfied.25
- According to the principles of Mohammedan Law, a divorced wife has a right to claim maintenance from her husband only up to the expiry of the period of iddat and not beyond that period. However, these principles were not held relevant while considering the provisions of Section 125. According to this view the meaning of the word ‘wife’ as found in the Explanation to Section 125(1) indicated that a divorced Mohammedan woman could bring action under Section 125 claiming maintenance from her ex-husband so long as she did not marry even if the period falls beyond the period of iddat.26 It was held that the Explanation (b) to Section 125(1) did not make any distinction between Khula divorce and talaq divorce. In view of the Explanation, Muslim women who had obtained a decree of divorce under the Dissolution of Muslim Marriages Act, 1939 could also claim maintenance under Section 125(1).
- His legitimate or illegitimate child: If the child is minor it is immaterial whether it is married or not. For the purposes of this chapter, Explanation (a) to Section 125 (1) defines minor as meaning “a person who, under the provisions of the Indian Majority Act, 1875, is deemed not to have attained his majority”. The child may be male or female. A minor married girl may be entitled to claim maintenance from her husband or her father (or maybe from both) provided the other necessary conditions are satisfied. However, the proviso to Section 125(1) provides that if the husband of a minor married female child is not possessed of sufficient means the father of such a female child will be required to make allowance for the maintenance of such a female child until she attains her majority.
- A Muslim father’s obligation like that of a Hindu father, to maintain his minor children as contained in Section 125 is absolute and is not at all affected by Section 3(1)(b) of the Muslim Women (Protection of Rights on Divorce) Act, 1986.39
- His legitimate or illegitimate abnormal child who has attained majority: Where such child is by reason of any physical or mental abnormality or injury unable to maintain itself. However, a married daughter is not entitled to maintenance under Section 125 if she has attained majority. In such cases, the responsibility of maintaining her is that of the husband and not of the father.
- His father or mother: It is not quite clear from the section whether “father or mother” will also mean “adoptive father or mother” or “stepfather or stepmother”. According to Section 3(20) of the General Clauses Act, 1897, the word ‘father’ shall include an ‘adoptive father’; and though the term ‘mother’ has not been similarly defined, it has been held that the term ‘mother’ includes ‘adoptive mother’.40 However, it has also been held that having regard to the object and intention of Section 125, the term ‘mother’ will have to be given its natural meaning and that it would not include a ‘stepmother”.41 This view has since been reiterated by the AP. High Court.42 The Supreme Court opined that a childless stepmother may claim maintenance from her stepson provided she is a widow or her wife.
Latest Judgements on Section 125 crpc
The amount of maintenance under section 125 of crpc will be decided by the Court.
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