MAINTENANCE FOR WIVES UNDER SECTION 125 CRPC: JUDICIAL PERSPECTIVES ON ENTITLEMENT, PROCEDURAL NUANCES AND SOCIAL JUSTICE BY - PROF. (DR.) K. SITA MANIKYAM & K.BHARATH CHANDRA
MAINTENANCE FOR WIVES UNDER SECTION 125 CRPC: JUDICIAL PERSPECTIVES ON ENTITLEMENT, PROCEDURAL
NUANCES AND SOCIAL JUSTICE
Abstract:
Section 125 CrPC has
constituted a provision for providing monetary relief to wives to avert
destitution and further social justice in matrimonial disputes. The paper
discusses the aspect of providing for maintenance to wives under Section 125 of
the Code of Criminal Procedure in India with judicial considerations that go
into forming this interpretation and enforcing it. This research critically
explores how the courts interpret entitlement to maintenance and its
implications over issues such as the scope of 'wife', eligibility as defined by
marital status, circumstances of estrangement, procedure complexity on burden
of proof, standard of evidence, timelines which affect the effectiveness of
maintenance orders. The paper discusses the effort the judiciary has made to
balance individual rights with broader societal objectives to scrutinize a
comprehensive approach to view maintenance provisions both as a legal
entitlement and as a social safeguard. This paper address various issues that
arise before the courts when dealing with
the provisions of maintenance of wives under Section 125 of the Cr.P.C., with
the support of reported decisions.
Introduction:
Section 125 of the Criminal Procedure Code (CrPC) is indeed a
re-incarnation of Section 488 of the
old CrPC of 1898, with the notable addition of parents to the list of those entitled
to maintenance. This
provision 125 CrPC is a measure of
Social justice specially enacted to protect and inhibit
neglect of women,
children, old-aged parents
and infirm dependents.
This article considered
on maintenance under Section 125 of the Cr.P.C.,
the analogy of Vamana asking for three steps of land in Hindu mythology came to my mind. Similar to Vamana’s request to
Bali for three steps of land, which, upon being granted, led to Vamana expanding to cover the entire universe, maintenance proceedings also find their place in Sections 125,
126, and 127 of the CrPC. However, these proceedings have extended into various dimensions of litigation in nearly
all courts dealing with family and matrimonial matters. The concept of maintenance, though seemingly modest,
involves several complications when dealt with in practice.
Objectives:
The main object is to prevent vagrancy and
destitution. It provides a speedy remedy for the supply of food, clothing
and shelter to the deserted
wife.[3]1 It gives effect to fundamental
rights and natural duties of a man to maintain his wife, children and parents when they
are unable to maintain themselves. The object of the maintenance proceedings
is not to punish a person for his past neglect,
but to prevent vagrancy by compelling those who can provide support to those
who are unable to support themselves and who have a moral
claim to support.
Issues
that crop up while dealing with maintenance of spouse under Section 125
(I)
Earning wife and her claim of maintenance:
Merely because wife is earning some income that does not
dis entitle her from claiming
maintenance. Where the personal income of the wife is insufficient, she can claim maintenance under section 125 of Cr.P.C.[4] The Phrase “unable to maintain herself” under section 125 CrPC –
Means unable to maintain
herself in way she
was living with her husband.[5] Merely because
wife is capable of earning, it is not
sufficient reason to reduce maintenance
granted to her by Family Court. ‘Capable of earning’ and ‘actually earning’ are
two different requirements and therefore
they both cannot be equated.[6] Merely because the wife
was earning something, it would not be a ground to reject her claim
for maintenance.[7]
A husband simply
presenting evidence that his wife earns some income does not absolve him of his obligation to provide
maintenance. This alone is not sufficient to negate the application of Section 125 of the CrPC. It must be proven
that the wife’s earnings are adequate
to support her needs. The question of whether the deserted wife is unable to maintain herself must be determined based
on the evidence submitted. If the wife's personal income is inadequate,
she remains entitled to claim maintenance under Section 125.
The key consideration is whether the wife can
sustain herself at the standard of living she was accustomed to while residing with her husband. Whether the
deserted wife was unable to maintain
herself, has to be decided on the basis of the material placed on record and
varies from case to case and there
cannot be any universal application or straight jacket
formula.
(II)
Place of suing (Place of making
application):
A Family Court established under the Family
Act shall exclusively have jurisdiction to adjudicate upon the applications filed under section
125 of Cr.P.C.[8] Family
Courts shall have the jurisdiction only with respect to city or town whose population exceeds one million, where
there is no Family Court, proceedings under Section 125 CrPC
shall have to be before the Magistrate of the
First Class.[9]
By virtue of section 126(b),
the wife is entitled to file the petition claiming
maintenance at the place where she resides and therefore by applying the same analogy,
a minor child can file petition under section 125 Cr.P.C seeking
maintenance at the place where such child resides.[10] The
benefit given to the wife and children to initiate proceeding at the place
where they reside is not given to the
parents. An application by the father or the mother claiming maintenance has to be filed where the person from whom
maintenance is claimed lives.[11]
(III)
Presumption as to marriage:
A strong presumption arises in favour of
wedlock where the partners have lived together
for a long spell as husband and wife. Although
the presumption is a rebuttable one, heavy burden lies on the person,
who seeks to deprive the relationship.[12]Second
marriage entered by the husband by concealing
the fact of first marriage, cannot
take benefit of his own wrong and the second wife can claim maintenance under section 125 Cr.P.C.[13]
Where a man and woman are proved to have
lived together as man and wife, the law presume,
unless, the contrary is clearly proved, that they were living together in consequnce of a valid marriage, and not in a state of concubinage.[14] Law presumes
in favour of marriage and
against concubinage when a man and
woman have cohabited continuosly for number of years.[15]
Where the partners lived together for a long
spell as husband and wife, a presumption would
arise in favour of a valid wedlock.[16] When an attempt is made by the husband to negative the claim of the neglected
wife depicting her as kept mistress on the specious
plea that he was already married, the court would insist on strict proof of the earlier
marriage.[17] The standard of proof of marriage in a
proceeding under section 125 Cr.P.C is not as
strict as is required in a trial for an offence under section 494 of
IPC.[18] Maintenance cannot be denied where there was some evidence on which
conclusions of living together could be reached.[19]
In a proceeding under section 125 Cr.P.C the rigours of strict proof of all the formalities of Hindu Marriage can be dipensed with because whether the
marriage is truly valid, invalid or
void may be appropriately decided by the Civil Court. A proceeding under
section 125 of Cr.P.C is a piece of welfare or socialistic legislation to protect a neglected wife from
destitution and vagrancy and it is also a summary proceeding for speedy
disposal.[20] Couple living together and having
children is sufficient to conclude marriage and the strict standards of proof of marriage is not necessary.[21] Validity of marriage cannot
be a ground for refusal of
maintenance if other requirements of section 125 Cr.P.C are fulfilled. Section
125 Cr.P.C proceeds on the basis of a de-facto marriage and not on de-jure marriage. The nature of proof of marriage required for a proceeding under section 125 Cr.P.C need not be so strong
or conclusive as in a criminal case under section 494 of
IPC.[22]
The Marriage between a
Christian and a Hindu performed as
per Hindu rites with the consent of
both parties to marriage cannot be said to be invalid for the purpose of claiming
maintenance under section 125 of Cr.P.C.[23] When the documents
are tendered showing
the formalities of marriage and substantially proved by placing evidence, strict proof of marriage is not necessary
in a proceeding under 125 of
Cr.P.C.[24] The
expression ‘Wife” in Section 125 of the Code should be interpreted to mean only a legally wedded wife. There is a
divergence of judicial opinion on the interpretation of the word ‘wife’ used in section 125 Cr.P.C. Therefore, the
question “Whether or not presumption of a marriage
arises when parties
living together for a long time, thus giving raise to a claim of
maintenance under section 125 Cr.P.C., was referred to a larger bench by the Hon’ble Apex Court in case of Chanmuniya Vs Virendra Kumar Singh
Kushwaha and Another[25] (and the out come
of the same is pending).
(IV)
Divorced wife and her entitlement to claim
maintenance:
The term ‘wife’ in
125 Cr.P.C includes
a divorced woman also, who has not remarried.[26] A
woman who has been divorced can still claim maintenance from her husband under section 125 of Cr.P.C., till she remarries. She is entitled to
maintenance even if the divorce was by
mutual consent.[27] A
wife, who has been divorced by the husband, on the ground that the wife has deserted him, is entitled to claim maintenance
under Section 125 of the Code of Criminal Procedure, 1973.[28]
A stipulation regarding relinquishment of the
right to claim maintenance from the husband in an agreement between the two spouses which
formed the basis for divorce
by mutal consent is opposed to public policy and cannot be enforced or
used by the husband as a shield for
avoiding payment of maintenance to the divorced wife in a Court of
Law.[29]
Explanation
II to Section 125 of the CrPC employs a legal fiction to recognize a divorced woman as a 'wife,' enabling her
to claim maintenance under this provision. However,
this fictional recognition of a divorced wife as a 'wife' is restricted solely
to the scope of awarding
maintenance. It cannot be exaggerated to the irrational
extent of suggesting that a divorced
wife is compelled to live with her ex-husband.
The rationale behind
granting maintenance to a divorced wife is often rooted in the reality that a woman may become destitute after
divorce. If she is unable to support herself or remains unmarried, the man who was once her husband retains a
legal duty and obligation to provide
maintenance until she remarries.
(V)
Nature of proceedings:
Proceedings for maintenance in a criminal
court are more in the nature of Civil proceedings
only, the criminal process is applied
for the purpose of summary and speedy
disposal in the interest of society. So that helpless wives and children are
not left on the road while those who are maintain them have the capacity to do so. The
relief given under this chapter is essentially of Civil nature. It prescribes a summary
procedure for compelling a man to maintain his wife
or children.[30] Proceedings under
section 125 of Cr.P.C are of civil nature.[31]
(VI)
Application
is not a pre-requisite for granting interim
maintenance:
Even in the absence of a formal application for interim maintenance or an accompanying affidavit, the statement
made by the wife as a witness
can be treated as an application, without standing for any technicalities as to the form. This
statement, given under oath before
the court and in person, carries more weight than a prepared affidavit signed by the party. Therefore,
it can be considered as an application or affidavit, as the case may be.[32] Where the petitioner is in distress and
unable to maintain herself and if the Magistrate comes to the conclusion that there is immediate need to grant
interim maintenance, the court
can grant interim
maintenance even without
an application.[33]
Where the averments of the
main petition clearly show that she is unable to maintain herself and is begging others, taking that
into consideration in the circumstances of the
case, though application was not signed by the petitioner and signed by the counsel,
it is not desirable to dismiss the application on technical grounds,
particularly in a case of this
nature.[34]
(VII)
Husband’s moral obligation to maintain his wife:
Duty to provide maintenance has to be
fulfilled even by earning money by physical labour.[35] An able bodied young man has to be presumed to be capable of earning sufficient money so as to be able reasonably to maintain his wife.[36] It
is the obligation of the husband to maintain his wife. He cannot be permitted
to plead that he is unable to maintain the wife due to financial
constraints as long as he is capable
of earning.[37]
The Hon’ble High Court of Allahabad in Hardev Singh v. State of U.P[38], held even if a person has become a Sadhu (saint),
that does not absolve him from the duty to maintain his wife and children.
It was held as early in 1930s by the Hon’ble
High Court of Rangoon in Maung Tin v. Ma Hmin[39] that “a man is
not, and ought not to be, permitted by his own voluntary act to free himself from the elementary duty of maintaining his
wife and children and he is amenable
to the provisions of Section 488 (125 CrPC), notwithstanding the fact that he
has adopted the yellow robe and become
a member of the
'Sangha'.”
The Hon’ble Apex Court in Rajnesh
V. Neha,[40] held “the plea of the husband that he does not possess
any source of income ipso facto does not absolve
him of his moral duty to maintain
his wife if he is
able bodied”
The Hon’ble Apex Court in Bhuwan Mohan Singh v. Meena[41],
held that duty of the husband to provide maintenance has to
be fulfilled even by earning money by physical labour.
In light of the above, the husband is
obligated to maintain his wife. He cannot be allowed to claim financial inability as a defense as long as he possesses
the capacity to earn. It is also implausible
to accept that a person who was financially capable of supporting a family at
the time of marriage would suddenly be completely without any source of income.
(VIII)
Desertion and its impact on maintenance:
Desertion means the intentional permanent
forsaking and abandonment of one spouse by
the other without that other’s consent and without reasonable cause. It is a
total repudiation of the obligations
of marriage. Desertion means not the
withdrawal from a place, but from a
state of things.[42]
Desertion is not a mere act of moving from one place
to another place,
but it is the act of detaching from one
set of circumstances, however, cogent and conducive to live and switching to another set of chosen
circumstances, however legally and morally objectionable
may be.[43] Merely
because the wife left house for four
or five years and did not come back is no
ground to justify second marriage by the husband and it will not disentitle the
wife from claiming maintenance.[44]
Reasonable grounds for the wife to stay
away from husband:
Wife refusing to live with her husband on ground of impotency - It is a just
cause and she is entitled to maintenance.[45] Desertion
isn't just about changing the address of one
of the spouses. It involves leaving
behind a stable situation and choosing a new way of life, even if that choice
is not legally or ethically
acceptable. It’s not just about moving away; it’s about abandoning the whole relationship and its
responsibilities. In simple Desertion is intentional act of leaving behind
not just a physical place but also the relationship and its
responsibilities.
Conclusion:
Hence from stuyding this
article it can be gathered that husband cannot deny the maintenance of his legally wedded wife by alleging that she is
living separately or by taking a plea
that he is unemployed. Section 125 of
the Criminal Procedure Code extends beyond a
simple legal remedy.
It serves as a lifeline
for those struggling with dire financial difficulties.
[1] Principal, Dr. B.R. AMBEDKAR COLLEGE OF LAW ANDHRA
UNIVERSITY, VISAKHAPATNAM
[2] Research Scholar, Dr. B.R. AMBEDKAR COLLEGE OF LAW ANDHRA UNIVERSITY & Judicial Magistrate I Class, Kanigiri, Prakasam District, Andhra Pradesh.
[3] Vimala v. Veeraswami(1991) 2 SCC 375
[4] Chaturbhuj Vs Sita Bai AIR 2008 SC 530.
[5] Chaturbhuj v. Sita Bai AIR 2008
SUPREME COURT 530
[6] Shailaja Vs Khobbanna AIR 2017
SC 1174.
[7] Sunita Kachwaha and others Vs
Anil Kachwaha AIR 2015 SC 554 : (2014) 16 SCC 715
[8] Shabana Bano Vs Imran Khan AIR
2010 SC 305.
[9] Abhilasha v. Parkash (2021) 13
SCC 99
[10] Dr B. Vishnu Janardhan Vs B.
Supraja (minor represented by her mother Smt Vijayasree and another) 1996 SCC
online AP 1304
[11] Vijaya Kumar Prasad Vs State of
Bihar and others AIR 2004 SC 2123.
[12] Badri Prasad Vs Deputy Director
of Consolidation 1978 (3) SCC 527: AIR 1978 SC 1557
[13] Badshah Vs Sou Urmila Badshah
Godse and Another 2014 (1) SCC 188: AIR 2014 SC 869.
[14] A.Dinohamy Vs W. L.Balahamy AIR
1927 PC 185.
[15] Mohabbat Ali Khan Vs Muhammad
Ibrahim Khan and others AIR 1929 PC 135
[16] Tulsa and others Vs Durghatiya
and others 2008(4) SCC 520 : AIR 2008 SC 1193
[17] Vimala Vs Veeraswami 1991 (2)
SSC 295
[18] Dwarika Prasad Satpathy Vs
Bidyut Prava Dixit and another 1999(7) SCC 675: AIR 1999 SC 3348.
[19] Dwarika Prasad Satpathy Vs
Bidyut Prava Dixit and another 1999(7) SCC 675: AIR 1999 SC 3348.
[20]
Jitendranath Das Vs Minati Das 2004 SCC online Calcutta 112.
[21] Kamala Vs M.R. Mohan Kumar AIR
2019 SC (Criminal) 61.
[22] Pyla Mutylamma @ Satyavathi Vs
Pyla Suri Demudu and Another 2011 (12) SCC 189.
[23] A.A.Balasundaram Vs A. Vijaya
Kumari and another 1990 SCC online AP 155
[24] Jitendranath Das Vs Minati Das
2004 SCC online Calcutta 112.
[25] AIR 2010 SC (SUPP) 29
[26] Vimala Vs Veeraswami 1991 (2)
SSC 295.
[27] Gurmit Kaur Vs Surjit Singh @
Jeet Singh (1996) 1 SCC 39: AIR online 1995 SC 598.
[28] Dr. Swapan Kumar Banerjee v.
State of WB AIR 2020 SC (CRIMINAL) 316
[29] Vinita Devangan Vs Rakesh Kumar
Devangan AIR 2010(NOC) 117(CHH).
[30] Nand Lal Misra Vs Kanhaiya Lal
Misra AIR 1960 SC 882.
[31] Vijaya Kumar Prasad Vs State of
Bihar and others AIR 2004 SC 2123
[32] Chitti Prasadarao Vs Chitti
Asiri Polamma 1993 SCC OnLine AP 327: 1993 (1) ALT (Cri.) 421.
[33] Balram Argidda Vs A. Chandramma
and Another 1997 Cri.L.J. 1305 (AP).
[34] Balram Argidda Vs A. Chandramma
and Another 1997 Cri.L.J. 1305 (AP).
[35] Bhuwan Mohan Singh Vs Meena AIR
2014 SC 2875.
[36] Reema Sulkan Vs Sumar Singh
Sulkan AIR 2018 SC (Crl) 1384.
[37] Shamima Farooqui Vs Shahid Khan
AIR 2015 SC 2025.
[38] 1995 ALL. L. J. 446
[39] AIR 1933 RANGOON 138: 1933 CRI.
L. J. 815
[42] Gangabai Vs Shriram @ Shrikishan
1991 Cri.L.J., 2018.
[43] Sk Khaja Mohideen v. Sk Parveen
2020 CRI.L.J. 3454: AIRONLINE 2019 AP 85
[44] Saygobai Vs Chueeru Bajrangi AIR
2011 SC 1557: (2010) 13 SCC 762.
[45] Siraj mohmedkhan Janmohamadkhan
v. Hafizunnisa Yasinkhan AIR 1981 SC 1972