CRPC PPT 9 - Copy.PDDFKFKFKFKKLLFLELLLDLFLF

ABOUT CRPC

1. Proceedings for Maintenance of Wives, C hildren and Parents [Ss. 125-28]

2. INTRODUCTION “Maintenance” is an amount payable by the husband to his wife who is unable to maintain herself either during the subsistence of marriage or upon separation or divorce. Various laws governing maintenance are as follows: for Hindus – Hindu Marriage Act, 1955; Hindu Adoption and Maintenance Act, 1956 for Muslims – Muslim Women (Protection of Rights on Divorce) Act, 1986 for Parsis – Parsi Marriage and Divorce Act, 1936 for Christians – Divorce Act, 1869 secular laws – Criminal Procedure Code, 1973; Special Marriage Act,1954

3. S. 125. Persons entitled to claim maintenance Under the circumstances mentioned in para. 29.4, a person is required by Section 125(1) to pay maintenance to the following persons: PERSONS ENTITLED TO MAINTENANCE I) Maintenance of Wife II) Maintenance of Children III) Maintenance of Parents, and IV) Other relations (a) His wife: The term “wife” appearing in Section 125(1) means only a legally wedded wife.

4. The husband is bound to maintain his wife so long as she is faithful to him and obeys his reasonable orders - Tayyabji. Smt. P. Jayalakshmi v. V. Revichandran, 1992 Cr. LJ 1315 (AP) Right to seek maintenance under s. 125 Cr. P.C. is an independent right and the pendency ofthe proceeding under the Hindu Marriage Act in the Family Court is no bar for its maintainability outside the jurisdiction ofFamily Court.

5. Section 24 of Hindu Marriage Act deals with maintenance pendente lite during the proceedings between a husband and wife, while section 25 deals with permanent maintenance to be fixed at the time of passing any decree or subsequent thereto. Section 18 of Hindu Adoption and Maintenance Act deals with the right of maintenance of wife whereas section 19 casts duty upon Hindu [Male and Female] during his or her lifetime to maintain his or her minor legitimate or illegitimate children and his or her parents .

6. Wife defined “Wife” Includes a woman who has been divorced by or has obtained a divorce from, her husband and has not remarried, Section 125(1) Explanation (b), CrPC 1973. “Wife” in Section 125 CrPC means a legally wedded wife and also includes a divorced wife , D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469.

7. MAINTENANCE TO WIFE To claim maintenanance under section 125 of Cr.P.C a Wife must be legally wedded wife of the husband as held in Yamunabai vs Anantrao AIR 1988 SC 644. In case of Chanmuniya vs Virendra Kumar (2011) 1 SCC 141 parties had been living together for a long time and on that basis question arose before Apex Court, as to whether presumption of marriage between the two because of said reason, thus giving rise to the claim of maintenance under section 125 of Cr.P.C, it is observed that if man and women living together for a long time without a valid marriage they are entitled to maintenance under section 125 of Cr.P.C

8. However as laid down in the case of Savitaben vs State of Gujarath (2005)3 SCC 636 when a women married a man with full knowledge of the first subsisting marriage she is not entitled for maintenance. In Smt Hemalata Karayat vs Vijay Kumar Karayat 2014 CRI.L.J. 4935 (Chhattisgarh High Court) , it is held that a already married women cannot claim maintenance from second husband during subsistence of her first marriage. However a second wife is not entitled for maintenance under the Hindu Adoption and Maintenance Act as second marriage of hindu is void as held in Mangala Lad vs Dhandiba AIR 2010 SC 122

9. Maintenance to ‘previous wife’ A Muslim husband contracting another marriage or taking a mistress is liable to pay maintenance to the previous wife who also has right to live separately which is payable from the date of the other marriage. Irrespective of religion, husband cannot absolve his liability by offering to take back the wife and maintain her, Begum Subanu v. A.M. Abdul Gafoor, (1987) 2 SCC 285.

10. Maintenance to second wife Husband who conceals subsistence of his earlier marriage while marrying the second wife is entitled to give maintenance to second wife. Second wife is to be treated as a legally wedded wife for the purpose of maintenance, Badshah v. Urmila Badshah Godse, (2014) 1 SCC 188.

11. Wife ‘living separately with mutual consent’ does not include divorced wife The meaning of ‘wife’ under Sections 125(1) and 125(4) CrPC is different. Section 125(4) contemplates a married woman. Wife living separately from husband with mutual consent does not mean wife who obtains divorce by mutual consent and lives separately and therefore cannot be denied maintenance on this ground, Vanamala v. H.M. Ranganatha Bhatta, (1995) 5 SCC 299.

12. INTERPRETATION OF UNABLE TO MAINTAIN A wife is entitled to maintenance only when she is unable to maintain herself. “The phrase unable to maintain herself” does not cannote that the wife should be absolute, substitute and should be on the street, should beg and be in a tattered clothes. Where the wife is maintained by her parents, it must be held that, she is unable to maintain herself. The phrase 'unable to maintain herself' meant unable to maintain herself in the way she was living with her husband.

13. Divorced Woman A women who has been divorced by her husband on account of decree passed by the Family Court under the Hindu Marriage Act continuous to enjoy the status of wife for the limited purpose of claiming maintenance allowance from her ex-husband. A woman has two distinct rights for maintenance. As a wife, she is entitled to maintenance unless she suffers from any of the disabilities indicated in section 125(4). In other capacity a divorce to woman she is again entitled to claim maintenance from the person of whom she was once the wife. A women with divorce becomes destitute. If she cannot maintain herself or remains unmarried, the man who was once her husband continuous to be under a statutory duty and obligation to provide maintenance to her.

14. Muslim Divorced women A divorced Muslim woman has right under Section 125 CrPC to claim maintenance even beyond the iddat period. If the woman is able to maintain herself then the liability of husband to maintain her ceases with the expiration of iddat period. However, on the inability of maintaining herself, she can take recourse of that section. Section 125 has an overriding effect on personal law in case of conflict between the two, Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556. In the case of Shamim Bano vs Asraf Khan 2014 ALLMR (Cri) 2200 it is held that even application filed under section 3 of the Muslim Women (Protection of Rights On Divorce) Act, Magistrate under the Act has power to grant Maintenance in favour of divorced muslim women under section 125 of Cr. P. C. as parameters are same as stipulated in section 125 of Cr.P.C.

15. In Danial Latifi and Anr. v. Union of India MANU/SC/0595/2001 : (2001) 7 SCC 740 while interpreting Sections 3 and 4 of the Act, it is held that the intention of the Parliament is that the divorced woman gets sufficient means of livelihood after the divorce and, therefore, the word "provision" indicates that something is provided in advance for meeting some needs. At the time of divorce the Muslim husband is required to make preparatory arrangements in advance for meeting future needs of wife. Reasonable and fair provision may include provision for her residence, her food, her clothes, and other articles. Reasonable and fair provision and maintenance is not limited only for the iddat period and not beyond it. It would extend to the whole life of the divorced wife unless she gets married for a second time.

16. In Shabana Bano vs. Imran Khan MANU/SC/1859/2009 : (2010) 1 SCC 666, it is held that petition Under Section 125 Code of Criminal Procedure would be maintainable so long as applicant/woman does not remarry. The amount of maintenance to be awarded Under Section 125 Code of Criminal Procedure cannot be restricted for the iddat period only.

17. Maintenance to woman in a live-in relationship Recently, it is held that a woman in a live-in relationship has an efficacious remedy to seek maintenance under Protection of Women from Domestic Violence Act, 2005 even if it is assumed that she is not entitled to the same under Section 125 CrPC. In fact, under the Domestic Violence Act, the victim would be entitled to more relief than what is contemplated under Section 125 CrPC, Lalita Toppo v. State of Jharkhand, 2018 SCC OnLine SC 2301. Woman knowingly entering in a live-in relationship with a married man All live-in relationships are not relationships in the nature of marriage. There has to be some inherent/ essential characteristic of marriage though not a marriage legally recognised. A live-in relationship between an unmarried woman knowingly entering into relationship with a married male cannot be termed as a relationship in the “nature of marriage” and her status would be that of a concubine or mistress and therefore is not entitled to maintenance, Indra Sarma v. V.K.V Sarma, (2013) 15 SCC 755.

18. {b} 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 may be 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 female child will be required to make allowance for the maintenance of such female child until she attains her majority.

19. Duty lies on a person having sufficient means to maintain his legitimate or illegitimate minor child whether married or not. Legitimacy of the child is an immaterial factor. It is not necessary to elicit a finding on that point.

20. "Monthly rate"—Quantum of maintenance.— The rate awarded should be determinate and fixed. It is not permissible to make an order for maintenance at a progressively increasing rate. The rate may, if necessary, be altered from time to time under section 127. " In the whole".— By the Amendment of the year 2001, the words "not exceeding Rs 500" from sub- section (1)(d) were deleted. Hence, no upper limit is now applicable. - PRELIMS

21. Date from which the order is to be effective [ Sub-section (2) ].— Section 125(2) expressly enables the Court to grant maintenance from the date of order or from the date of application. However, section 125 of the Code must be construed with sub-section (6) of section 354 of the CrPC. In other words, sections 125 and 354(6) must be read together. Sub-section (2) clearly mentions that the maintenance shall be payable from the date of the order, or if so ordered, from the date of the application of maintenance. Thus, if the date is not mentioned in the order, impliedly it is from the date of the order.

22. Warrant for levying the amount [ Sub-section (3) ]. It is necessary, before the order can be enforced by a sentence of imprisonment, that it should be made out that the non-payment of maintenance was the result of wilful negligence on the part of the defendant. A sentence of imprisonment can, therefore, be passed only after there has been wilful neglect to comply with the order, followed by an unsuccessful process of distraint. the financial liability cast by the order of maintenance can be enforced by arrest and detention. The purpose of sending a person to jail must be understood as being a manner, procedure or device for the satisfaction of the liability. Arrest and detention are only to coerce compliance. Remaining in jail would not discharge the liability to pay.

23. "Imprisonment for a term which may extend to one month" .— PRELIMS The language of section 125(3) is quite clear, and it describes the power of the Magistrate to impose imprisonment for a term which may extend to one month or until the payment, if made sooner. This power of the Magistrate cannot be enlarged: The only remedy would be after expiry of one month, for breach or non-compliance with the order of the Magistrate, the wife can approach the Magistrate again for similar relief

24. Limitation, "One year from the date on which it became due" [ Proviso 1 ]. The proviso is intended to prevent a person entitled to maintenance from being negligent and allowing arrears to pile up until their recovery would become a hardship or an impossibility.

25. Disentitlement of wife [ Sub-section (4) ].— The sub-section governs the whole section including sub-section (1). A wife who refuses to live with her husband on account of his remarriage is, therefore, not prevented by sub-section (4) from claiming maintenance allowance under sub-section (1). The term "adultery" is used in the popular sense of the term, viz., breach of the matrimonial tie by either party. It does not mean a single act of adultery. It refers to a course of conduct and means something more than a single lapse from virtue. t he words in clause (4) of section 125 are "living in adultery" and which means continuous act of adultery. Therefore, even if a husband has obtained divorce on the ground of adultery, he will be liable to pay maintenance to the wife unless he proves in the proceedings under section 125 that the wife was living in adultery. The expression "if she is living in adultery" as used in section 125(4), the Court said about this that it conveys the present continuous tense. The wife who ceased to live in adultery could not be deprived of maintenance in the present because she was doing so in the past. Living separately, prior to divorce, under mutual consent is a disentitlement to maintenance.

26. Maintenance of girl child after majority till marriage.— Though section 125 does not fix liability of parents to maintain children beyond attainment of majority, the right of a minor girl for maintenance from parents after attaining majority till her marriage is recognised under section 20(3) of Hindu Adoption and Maintenance Act, 1956. On Combined reading of both the provisions it is clear that daughter is entitled to maintenance even after her attaining majority but till her marriage.

27. Conclusion. Essential conditions for granting maintenance (1} The person from whom maintenance is claimed, must have sufficient means to maintain the person or persons claiming maintenance. (2) Neglect or refusal to maintain. - Neglect or refusal to maintain may be by words or by conduct. It may be express or implied. Burden of proving neglect is on the claimant. (3) The person claiming maintenance must he unable to maintain himself or herself. (4) Special provision for maintenance of minor married girl. - A minor married girl unable to maintain herself can claim maintenance from her husband if he, having sufficient means, neglects to maintain her. However, if the husband is not having sufficient means to maintain her, it has been provided, with a view to meet such a hard case, that she can claim maintenance from her father if he has sufficient means to maintain her.

28. (5) When the maintenance is claimed by wife from her husband, (i) she must not be living in adultery.—Section 125(4)

29. Jurisdiction of Magistrates to deal with maintenance proceedings Section 126 deals with the jurisdiction, mode of taking of evidence and grant of costs in respect of proceedings initiated under section 125. only Judicial Magistrates of the First Class can deal with and decide petitions for maintenance under Sections 125 to 128. No other Magistrate has such jurisdiction. It has been provided by clause (g) of Section 461 that if any Magistrate, not being empowered by law in this behalf, makes an order for maintenance his proceedings shall be void.

30. [S. 126(1)] Territorial jurisdiction.—Proceedings for maintenance 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 the illegitimate child. The expression “resides” means something more than a flying visit and does not include a casual stay in a particular place, and what is required is an intention to stay for a period, the length of the period depending upon the circumstances of each case.

31. Similarly the expression “last resided” must mean the place where the person had his last residence, whether permanent or temporary. The word “is” connotes in the context the presence or existence of the person in the district when the proceedings are taken. It is much wider than the word “resides”. What matters is his physical presence at a particular point of time i.e. when the application is made.

32. Section 126(2} is mandatory in form and requires in dear terms that all evidence in such proceedings shall be taken in the presence of the person proceeded against or his pleader. The word “all” with which the subsection opens emphasises the fact that no evidence shall be taken in the absence of such person or his pleader.

33. The Magistrate may also proceed to hear and determine the case ex parte if he is atisfied that the husband is wilfully avoiding service or wilfully neglects to attend the court, but, otherwise all evidence in the proceedings must be taken down in the presence of the person proceeded against. The proviso to Section 126(2) does not require that the Magistrate must first record reasons for his satisfaction before he decides to proceed ex parte in the matter. It is enough if such satisfaction viz. that the person is wilfully avoiding service or wilfully neglecting to attend the court is writ large on the record and reflected in the final order that is made. An ex parte order passed under the proviso to Section 126(2) can be set aside on an application made within three months from the date thereof.

34. Section 127. Alteration in allowance It appears from the language of Section 127(1), that change of circumstance envisaged by it is a change of pecuniary or other circumstance of the party paying or receiving allowance, which would justify an increase or a decrease of the amount of maintenance originally fixed.11 The fall in purchasing power of money or the husband’s retirement from service etc. have been held to be changes of pecuniary situation. On the language of Section 127(2) as also on principle and precedent, it would be obligatory for a Magistrate to follow the judgment of a competent civil court, specifically on the point of maintenance, and consequently, to cancel or vary the earlier order of the criminal court under Section 125. It may be noted that the word “decision” in Section 127(2) means the determination of a question or controversy and not the reasons or grounds which weigh with the court in arriving at such decision.

35. The term “maintenance” means proper maintenance and it should not be narrowly interpreted. It has been laid down by the legislation that under Section 127(3) maintenance should mean, maintenance or interim maintenance. “It is pertinent to note that under the revised Section 127(1) the Magistrate has discretion to make alteration, as he thinks fit, in the allowance for the maintenance or the interim maintenance as the case may be”. The Amendment Act has widened the meaning of “maintenance” to include “maintenance or interim maintenance” under Section 127(3) (c). Similarly under Section 127(4) monthly allowance has been clarified to include monthly allowance for the maintenance and interim maintenance or any of them. This explanatory meaning is made applicable to Section 128 also.

36. Section 128 This Section 128 makes the maintenance order enforceable anywhere in India, even in a place outside the territorial jurisdiction of the Magistrate who passed the order of maintenance.