ORDER FOR MAINTENANCE OF WIVES, CHILDRENS AND PARENTS - BY N.LALITHA SREE

INTRODUCTION

The word maintenance is not defined in the code of Criminal Procedure 1973, maintenance in general meaning is keeping something in good condition. Maintenance in legal meaning is money that someone must pay regularly to a former wife, husband or partner, especially when they have had children together. It is the duty of every person to maintain his wife, children and aged parents, who are not able to live on their own.

SECTION 125: ORDER FOR MAINTENANCE OF WIVES, CHILDRENS 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 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 direct.

(2) any such allowance for the maintenance or interim maintenance and expenses for proceedings 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 proceeding, as the case may be] remaining unpaid after the execution of the warrant, to imprisonment for a term which may extent to one month or until payment if sooner made: 

Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the court to levy such amount within a period of one year from the date on which it became due:

Provided further that if such person offers to maintain his wife on condition of living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her. And may make an order under this section not withstanding such offer, if he is satisfied that there is just ground for so doing.

(4) No wife shall be entitled to receive an [allowance for the maintenance or the interim maintenance and expenses of proceedings, 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) No 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.

EXPLANATION

Mother’ includes biological mother and not step mother, mother-in-law or father-in-law not entitled to maintenance. ‘Minor’ means a person who, under the provisions of the Indian Majority Act 1875, is deemed not to have attained his/her majority. ‘Wife’ includes a women who has been divorced by, or has obtained a divorce from, her husband and has not remarried. Husband to see wife and children live with dignity and not to be destitute or beggar is the obligation of husband to maintain wife and children 2014 (2) ALD (Crl) 744 (SC) = AIR 2014 SC 2875, Provided that an application for the monthly allowance for the interim maintenance and expenses for proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person. Earning wife is not barred from claiming maintenance. The income of the wife may be taken into consideration while fixing the quantum. The second wife is also entitled to maintenance, is she is unable to pull on with her husband living with his first wife unable to maintain itself there is qualification of age. Wife can file for maintenance in any magistrate court in the District where she resides. Legitimated child entitled to interim relief but not alleged wife until proof of valid marriage. Minor children can file petition for maintenance at the place of their residence. Amount in the whole means that court cannot grant more than Rs.500/- per claimant. Quantum of maintenance is not exceeding Rs.500/- in the whole- each member is entitled to maintenance separately and independently. Substantial increase in income of the husband then wife entitled to enhancement of maintenance. Inability of wife to maintain herself is the condition precedent for grant of maintenance wife educated but unemployed then wife cannot be refused to maintenance as she is capable to secure a job. Divorced women having sexual relations with another person the she is not entitled for maintenance from her former husband.

CONCLUSION

Section 125 provides maintenance to divorced wife, children, and aged old parents who are unable to maintain themselves with some conditions which are mention above. Maintenance to divorced wife-entitled to maintenance as divorced women continued to enjoy status of wife until re-marriage. Denial of maintenance on ground that she agreed sum amounts in full and final settlement in divorce deed is improper.