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UNIVERSITY OF KASHMIR
SCHOOL OF LAW
The Code of Criminal Procedure,1973
(Assignment: Crpc)
Submitted by: Tajamul Islam | Submitted to: Tawseef Mohammad Khan
Enrolment No: 16042122054 | (Advocate J&K High Court )
Semester: BALLB (10th) Semester
Topic:
“Section: 125| Order for Maintenance of
Wives, Children and Parents”
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Introduction
In this assignment, we are going to look upon the aim of the maintenance and the
provisions of the law which dealt with the issue of the maintenance. We will go through the
case laws to understand the nuances of the maintenance under Section 125 of the Crpc. We
also look upon the basic factors or reasons for the inclusion of this section in CRPC and the
uniformity of this section upon all the classes. Maintenance may be granted to dependent
children, parents and legally wedded wives, including but not limited to a divorced spouse,
mistress, illegitimate children, etc. In certain cases under personal law, the Indian courts have
adopted a lenient view and granted the husband the right to receive maintenance. Such right
however, is conditional and typically conferred upon the husband, only if he is incapacitated
due to some accident or disease and rendered incapable of earning a livelihood. Such an
entitlement is not available to an able person, doing nothing for a living or a wastrel. 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. Section 125 of the Criminal Procedure Code, 1973 talks about maintenance.
Maintenance, also called alimony is the financial support that a kin is entitled to in case of
desertion. Legislated as a tool for social justice, Section 125 of the Criminal Procedure Code,
1973 provides an effective remedy for neglected persons to seek maintenance. A follower of
any religion can apply for maintenance under Section 125 without restriction. An application
under Section 125 of the Criminal Procedure Code, be it be by a wife, child or parent, will be
entertained only on proof of a certain elements. The applicant needs to prove that the
respondent has sufficient means and that he/she has neglected or refused to maintain him/her.
In addition, he or she has to prove her inability to maintain himself or herself[i]. Thus, we
note that under Section 125, only a wife, child and the mother or father are entitled to claim
maintenance.
Aforementioned, the applicant has the right to claim maintenance if he/she is not in a position
to support themselves. The potential or ability to earn is not a criterion. Secondly, the burden
of proof lies on the claimant to prove that the respondent has sufficient means to support
them. Once this is proved, the onus lies on the respondent to prove otherwise. Otherwise, it is
deemed to be a presumption[ii].
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Section 125 is certainly not an absolute right. Sub clause 4 enumerates exceptions, when the
spouse wouldn’t be entitled to any alimony:
If they are living separately with mutual consent.
If she is living in adultery.
Refuses to live with the husband without sufficient reason.
Section 125, defining scope and applicability
Section 125 of the Criminal Procedure Code provides for the maintenance to the wife,
child, and parents. The court after the party has invoked Section 125 of the Code, may order
the respondent, that is the husband, to maintain the wife who is unable to maintain herself by
providing monthly maintenance to her. However, there is an exception in the provision. For
the purpose of providing maintenance to the wife, the husband has to be sufficient enough to
support his wife after the separation and at the same time, the wife must not be living in
adultery or living separately with her husband without any sufficient reasons. Even if they are
living separately in mutual consent, then also the wife will not be entitled to any sort of
maintenance. Whenever the judgment is passed in favor of the wife, the court has to make
sure that the husband has sufficient means to provide maintenance to the wife. The court also
needs to make sure that the wife after the separation does not have enough money to maintain
herself.
Under Section 125 of the code, the provision is available for interim maintenance which
means that during the pendency of an application in the court of law, the order may be passed
by the magistrate directing the husband to pay the monthly allowances to the wife. However,
the magistrate has the right to alter the amount of the maintenance to be paid, if he thinks that
there is a change in the circumstances of the individual who has been paying or either
receiving the monthly allowances. This was laid down in the case of Vikas v. State of Uttar
Pradesh. All such applications of maintenance can be filed in any district where the person
who is liable to pay resides or where the wife resides or where the person last resided with
the wife or with the mother or with the illegitimate child. The purpose of Section 125 of
CrPC is to achieve a social purpose in society.
The purpose of Section 125 CrPC was explained in the case of K. Vimal v. K. Veeraswamy,
where it was held that Section 125 of the Code had been introduced for achieving a social
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purpose. The aim of this section is the welfare of the wife by providing her with the required
shelter, food after the separation from the husband. It was held in this case that if the wife has
lived like a wife and the husband had treated her like a wife for all the years before their
separation, then, the wife cannot be denied maintenance by her husband.
Scope of revision under Section 125
Under Section 125 of the Code of Criminal Procedure, when the proceedings are
conducted against the husbands, the court tends to decide the quantum of the maintenance,
which has to be paid to the wife after considering the circumstances of the case. Although the
maintenance declared by the court would satisfy the petitioners, what if the husband is not
satisfied with the order of the court. As appeal under Section 125 of the court is not
maintainable, the legal option which is available with the husband is to go for the revision
proceedings. But it all depends on the merits of the case, whether the party has the right to
file for the revision proceedings in the higher courts. But the jurisdiction of the higher courts
is also limited, as they have to take into consideration certain aspects before proceeding with
the revision of the case. One of the limitations is that the Higher Court cannot interfere when
the evidence that has been presented by both parties is taken into consideration. The power of
revision is available with Section 397 of the Code of Criminal Procedure.
The High Court or the sessions judge has the power to call for the examination of the record
of any proceeding before any inferior court. However, the power of the revision will not be
applicable concerning any of the interlocutory orders passed in any of the trial proceedings.
In the case of Ashu Dhiman v. Jyoti Dhiman, which has been passed by the Uttarakhand High
Court holding that an order passed by the trial court rejecting or allowing the application for
the maintenance when the proceedings are pending in the court, cannot be considered as an
interlocutory order and the higher court have the right to review the case which has been filed
by the other party. In the case of Sunil Kumar Sabharwal v. Neelam Sabharwal, it was held
that an order granting the interim maintenance under Section 125 is not an interlocutory order
and therefore the revision of the same cannot be barred under Section 397(2). When the court
has straightaway rejected or allowed the proceedings to be filed in the court of law then, the
parties should have the right to go for the review by the court of law. Numerous judgments
have been passed by the court and provided that even if the wife is capable of earning or is
earning, cannot be denied the maintenance by the husband.
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However, it is always necessary that the husband is more efficient in earning than the wife. In
such cases, they need to approach the higher courts pleading the revision of the case. The
Courts have been allowing the revision application when the wife is at fault herself.
Sometimes the wife leaves their matrimonial houses without any sufficient reasons and for
their ill motives to get the maintenance from their husband.
Recent Case Laws and developments:
Since Indian Laws are derived primarily from the Common Law system, judicial decisions
form an integral part for the development of any legal concept. Following are some
significant, recent judicial pronouncements that help us understand the present stance of
various Courts in India regarding their conception about maintenance.
Shamima Faarooqi v. Shahid Khan[iii] (2015)
Appeal from family court.
Facts: Plaintiff was a victim of domestic violence and harassment at her matrimonial home
by her husband, Shahid Khan, the defendant. Not only did he demand dowry from her, he
brutally assaulted her when his wife inquired to him about his illicit relationship. Disgusted,
the woman took shelter at her maternal home and filed for a monthly maintenance of Rs.
4000 from her husband. The defendant, disputing all the averments pertaining to demand of
dowry and harassment and further alleged that he had already given divorce to her on
18.6.1997 and has also paid the Mehar to her. A reply was filed to the same by wife asserting
that she had neither the knowledge of divorce nor had she received an amount of Mehar.
After examination, the family court directed that a sum of Rs.2500/- should be paid as
monthly maintenance allowance from the date of submission of application till the date of
judgment and thereafter Rs.4000/- per month from the date of judgment till the date of
remarriage. The aforesaid order passed by the learned Family Judge came to be assailed
before the High Court in Criminal Revision. The High Court took note of the fact that the
husband had retired on 1.4.2012 and consequently reduced the maintenance allowance to
Rs.2000/-from 1.4.2012 till remarriage of the appellant herein. Being of this view the learned
Single Judge modified the order passed by the Family Court. Hence, an appeal was made by
special leave, at the instance of the wife.
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Held: Section 125 CrPC has been rightly held by the family court and is applicable on a
divorced Muslim woman.
Shamim Bano v. Ashraf Khan
Facts: Shamim Bano and Asraf Khan were married on November 17, 1993 in accordance
with the Sharia Law. But Shamim left his house alleging cruelty and torture by him. Even as
her application for grant of maintenance was pending, divorce took place on May 5, 1997. A
magistrate, while rejecting her plea for maintenance taking into consideration that during the
pendency of the case, the couple were granted divorce, directed Khan and other to pay her
Rs. 11786 towards mahr to return goods and ornaments and Rs. 1750 towards maintenance
only for the iddat period. This was upheld by the Chhatisgarh High Court.
Held: Allowing her appeal against this order, the Supreme Court bench held that Shamim
Bano was entitled to maintenance even after divorce. Husband’s liability is not limited to
the iddat period. It remitted the matter back to the trial court for fresh disposal in the light of
this judgement.
Badshah v. Sou. Urmila Badshah Godse & Anr (2013)
(Criminal leave petition)
Facts: The petitioner denied his relations with respondent Nos.1 and 2 as his wife and
daughter respectively. He alleged that he never entered with any matrimonial alliance with
respondent No.1. The respo ndents had stated in the petition that respondent No.1 was
married with Popat Fapale. However, in the year 1997 she got divorce from her first husband.
After getting divorce from her first husband in the year 1997 till the year 2005 she resided at
the house of her parents. On demand of the petitioner for her marriage through mediators, she
married him on 10.2.2005 at Devgad Temple situated at Hivargav-Pavsa. Her marriage was
performed with the petitioner as per Hindu Rites and customs. After her marriage, she resided
and cohabited with the petitioner. Initially for 3 months, the petitioner cohabited and
maintained her nicely. After about three months of her marriage with petitioner, one lady
Shobha came to the house of the petitioner and claimed herself to be his wife. On inquiring
from the petitioner about the said lady Shobha, he replied that if she wanted to cohabit with
him, she should reside quietly. Otherwise she was free to go back to her parent’s house.
When Shobha came to the house of petitioner, respondent No.1 was already pregnant from
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the petitioner. Therefore, she tolerated the ill-treatment of the petitioner and stayed along
with Shobha. However, the petitioner started giving mental and physical torture to her under
the influence of liquor. The petitioner also used to doubt that her womb is begotten from
somebody else and it should be aborted. However, when the ill-treatment of the petitioner
became intolerable, she came back to the house of her parents. Respondent No.2, Shivanjali,
was born on 28.11.2005. On the aforesaid averments, the respondents claimed maintenance
for themselves.
Held: It was deduced that the husband kept his second wife in dark regarding his first
marriage. It was held that at least for the purpose of Section 125 Cr.P.C., respondent No.1
would be treated as the wife of the petitioner, If this interpretation was not to be accepted, it
would amount to giving a premium to the husband for defrauding the wife. Therefore, at least
for the purpose of claiming maintenance under Section 125, CrPC, such a woman is to be
treated as the legally wedded wife. Leave was not granted.
Nidhi Jain v. State of UP (2016)
Facts: This case had been filed against the order dated 30.10.2010 passed by the Principal
Judge, Family Court, Jhansi, wherein the claim of the plaintiff who filed for maintenance
from her husband was turned down. Smt. Nidhi Jain, the revisionist in this case filed a suit
for herself and on behalf of her minor sons Shreyash Jain and Aditya Jain, to the effect that
her marriage took place with opposite party-Devesh Jain on 10.5.2003 as per Jain rites. Her
husband Devesh and his family members were not satisfied with the dowry and they used to
misbehave with the applicant. From their wedlock two sons were born. Devesh-opposite
party filed a suit for divorce under section 13 of the Hindu Marriage Act, but thereafter
matter was compromised and they used to live together as husband and wife. After some
time, again, opposite party filed a suit for divorce and tortured her to the extent that it became
impossible for the applicant to live in her in-laws house. On 18.8.2009 Smt. Nidhi Jain along
with her minor sons were kicked out of the house and since then she was dependent upon her
parents. It was also alleged in the application that opposite party was a well-to-do man and
was in a capacity to support the revisionist.
Held: Maintenance could not be denied to the wife if she is an earning hand. Wife’s right to
claim maintenance can only be denied in the circumstances only as provided under section
125(4) Cr.P.C. Principle is that when prima facie marriage is established, maintenance should
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be awarded because section 125 Cr.P.C. is intended to curtail destitution and also to
ameliorate orphancy. The impugned order, passed by the Principal Judge, Family Court,
Jhansi in Case No. 302 of 2009 was set aside.
Conclusion
Maintenance as a Section is one of the most essential ones enacted in view of the
Indian context. In a country like ours with dismal literacy rates, deplorable condition of
women shackled in their households, it was more than important to take into account the
miseries entailed by them and their children in case of desertion by their husbands. It can
rightly be termed as an extension of Article 21, that ensured right to a dignified life, which is
impossible without monetary support. One of the biggest drawbacks of this law was, that the
monthly allowance could not exceed Rs. 500 per person, but this flaw was done away with by
an amendment in 2001. The Court then allowed that the sum would be determined according
to the needs and status of the aggrieved party. Another commendable progress made by the
Apex Court in this regard was in the case of Mrs. Vijaya Manohar Arbat v. Kashirao
Rajaram Sawai[iv] wherein it was held that parents are entitled to claim maintenance from
their married daughter as well. This added a gender-neutral dimension to the Section. Even a
issue-less stepmother has all the right to claim maintenance from her stepchild[v]
Recent case laws and their evaluation definitely show how that the relevance of this section
still holds true and shall continue to be one in the years to come. In fact, with increasing
divorce cases, the vitality of this law is gaining more importance. The scope of this section
has consequently expanded to incorporate evolving needs.
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