ANALYSIS ON MAINTENANCE OF WIVES, CHILDREN AND PARENTS UNDER INDIAN LAW BY - RUDRAVIR RAJ SHRIYAM
ANALYSIS ON
MAINTENANCE OF WIVES, CHILDREN AND PARENTS UNDER INDIAN LAW
AUTHORED BY
- RUDRAVIR RAJ SHRIYAM
Dept. Amity
Law School
Amity
University, Patna
India is cluster
or combination of many religion culture and race. The diversity of religious
faith custom and culture forced our law maker for creating separate and general
law for the protection of wives, children and parents despites of their
religion and culture. There are personal laws to protect their custom, culture
and religion while providing maintenance, protection and custody of wives,
children and parents. At the same time our law maker decided to full fill the lacuna
or loop-holes for making full proof protection of wives children and parents
without giving consideration of their religion which is delt under personal
law. They make general laws for supporting the protection of wives children and
parents at any cost. These laws are strict and stringent in their nature. The
general law bounds to protect wives children and parents whenever it is
required to be protected and personal law are not bounded for that. There are
several cases in which the honorable Supreme Court has decided that general law
prevels to protect wives children and parent where personal laws donot give any
remedy for its protection.
Under code
of Criminal procedure 1973, Chapter 9 elaborate for maintenance of wife,
children and parents under section 125 to 128. the Chapters speaks as
"order for maintenance of wife children and parents". It denotes that
our courts have covert power to pass order for maintenance of wife, children
and parent as per requirement, no matter they belong to what religion and what
is their personal law. This chapter of Cr. P.C. that is Chapter IX is over whelping
on any personal laws. It is the honorable court who can decide the need of
maintenance of wife children and parents and pass appropriate orders to pass
for their maintenance. This order of honorable Courts are Mandatory and
enforceable as per the provision of laws.
Chapter IX or Cr. P.C. enumerates sec 125 to 128.
Sec. 125- Order for maintenance of wives,
children and parents. 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
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 metal
abnormality or injury unable to maintain itself, or
attained majority, where such child is, by reason of any physical or metal
abnormality or injury unable to maintain itself, or
d) his father
or mother, unable to maintain himself or herself.
a
Magistrate of the 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. Provided that the Magistrate may order the father of a minor female
child referred to in clause (b) to make such allowance, wild she attains her
majority, if the Magistrate is satisfied that the husband of such minor female
child, if married, is not possessed of sufficient means.
Provided
further that the Magistrate any, during the pendency of the proceeding
regarding monthly allowance for the interim maintenances of his wife or such
child, father or mother, and the expenses of such proceeding which the
Magistrate considers reasonable, and to pay the same to such person as the
Magistrate may from time to time direct.
Provided
also that an application for the monthly allowance for the interim maintenance
and expenses of proceeding under the second proviso shall, as for as possible,
be disposed of within seventy days from the date of the service of notice of
the application to such person.
Explanation- For the purposes of this Chapter.
(a) "Minor" means a person who,
under the provisions of the Indian Majority
Act, 1875 (9 of 1875) is deemed not have attained his majority.
Act, 1875 (9 of 1875) is deemed not have attained his majority.
(b) "Wife" includes women who has
been divorced by, or has obtained a
divorce from, her husband and has not remarried.
divorce from, her husband and has not remarried.
[(2) Any
such allowance for the maintenance or interim maintenance and expenses of
proceeding 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 of imprisonment for a term which may entered 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.
Provide
further that if such person offers to maintains his wife on condition of her
living with him, and she refuses to live with him, such Magistrate may consider
any grounds of refusal stated by her, and make an order under this section not
withstanding such offer, if he is satisfied that there is just ground for so
doing.
Explanation- It a husband has contracted
marriage with another women or keeps a mistress, it shall be considered to be
just ground for his wife's refusal to live with him.
(4) No wife shall be entitled to receive an
[allowance for the maintenance or the interim maintenance and expenses of
proceeding 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 consort.
(5) On proof that any wife in whose favour
or 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 concert, the Magistrate shall cancel the order.
126. Procedure- (1) Proceeding under section 125
may be taken against any person in any district-
a) Where he
is, or
b) Where he or
his wife resides, or
c) Where he
last resided with his wife, or as the case may be, with the mother
of illegitimate child.
of illegitimate child.
(2) All evidence to such proceedings shall
be taken is the presence of the person against whom as order for payment of
maintenance is proposed to be made or, when his personal attendance is
dispersed with, is the presence of his pleader, and shall be recorded in the
manner prescribed for summers- cases.
Provided
that if the Magistrate is satisfied that the person against whom as order for
payment of maintance is proposed to be made is wilfully avoiding service, or
wilfully neglecting to attend the court, the Magistrate may proceed to hear and
determine the case expert and any order so made be see aside for good cause
shown on an application made within three months from the date thereof subject
to such terms including terms as to payment of costs to the opposite party as
the Magistrate may think just and proper.
(3) The Court in dealing with application
under section 125 shall have power to make such order as to costs as may be
just.
127. Alteration is allowance: (1) On
proof of a charge in the circumstances of any person, receiving, under section
125 a monthly allowance, allowance for the maintenance or interim maintenance,
to his wife, child, father or mother, as the case may be, the Magistrate any
make such alteration as the maintenance or the interim maintenance, as the case
may be.]
128. Enforcement of order of maintenance :- a copy of
the order of [maintenance or interim maintenance and expenses of proceeding, as
the case may be] shall be given without payment to the person in whose favour
it is made on to his guardian, if any, or to the person to [whom the allowance
for the maintenance or the allowance for the interim maintenance and expenses
of proceeding, as the case may be] is to be paid, and such order may be
enforced by any Magistrate is any place where the person against whom it is
made may be, on such Magistrate being, satisfied as to the identity of the
parties and the non-payment of the [allowance, or as the case may be, expenses,
due.]
The
Criminal procedure code 1974 enumerate general law under sec- 125 to 128 for
the maintenance of wife, children and parents. The honorable Courts have ample
of power to pass order/orders for chair maintenance. Everyone is bound to obey
the orders of honorable courts in this regard there is no expiation for
personal laws. It is pertinent to state here that there are separate act known
as the Hindu adoption and maintenance act 1956 which codified act in Hindu
religion for maintenance of wife and children. The chapter 3rd of the Hindu
adoption and maintenance act 1956 state under section 18 about maintenance of
wife, sec 19 maintenance of widowed daughter - in - law, sec- 20 maintenance
for that is mentioned is sec- 23 of the Hindu adoption and maintenance act
1956. Under sec 13 of the Hindu minority and guardianship act 1956 state about welfare
of minor to be paramount consideration.
Muslim
community as their own law they before the commencement of the Muslim women
(protection of rights on divorce) act 1986 did not sanction the maintenance of
wife. The Muslim women 1986 have given them exclusive rights of maintenance
through this act under sec.- 4 that is order for payment of maintenance, Sec.-
5 option to be governed by the provisions of sec. 125 to 128 of act to of 1974.
Wereas sec.- 3 Mahar" or order properties of Muslim women to be given to
her at time of divorce.
The Supreme
Court, is Mohd. Ahmed Khan v, Shah Baro Began and others, (AIR 1985 SC 945) has
held that although the Muslim law limits the husband's liability to provide for
maintenance of the divorced wife to the period of iddat, it does not
contemplate or countenance the situation envisaged by section 125 of the code
of Criminal Procedure. The Court the above Principle of Muslim law to cases in
which the divorced wife is unable to maintain herself. The Court, therefore,
came to the conclusion that if the divorced wife is able to maintain herself
the husband's liability ceases with the expiration of maintain herself after
the period of iddat she is entitled to have recourse to section 125 of the Code
of Criminal Procedure.