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. But, who all can seek maintenance?
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.
Who Can Claim Maintenance?
Some of the laws applicable to the matters of maintenance to wives, parents, sons, daughters and other dependents and the Acts covered within the jurisdiction of the Family Courts are the following.
- Family Courts Act, 1984
- Hindu Adoptions And Maintenance Act, 1956
- Protection of Women From Domestic Violence Act, 2005
- Protection of Women From Domestic Violence Rules, 2006
- Hindu Marriage Act, 1955
- Muslim Women (Protection of Rights on Divorce) Act, 1986
- Muslim Women (Protection of Rights on Divorce) Rules, 1986
- Maintenance And Welfare of Parents And Senior Citizens Act, 2007
- Maintenance Orders Enforcement Act, 1921
- Special Marriage Act, 1954
- Divorce Act, 1869
Under Section 125, any of the following persons can claim maintenance.
A woman is considered as the “wife” only if her marriage to the man is legally valid.
For Hindus, a legally valid marriage requires that:
- both parties are Hindus,
- the marriage is performed in accordance with customary rites of the parties,
- neither party has a living spouse at the time of marriage,
- neither party is of unsound mind at the time of marriage,
- the male is at least 21 years old,
- the female is at least 18 years old and
- both parties are not related by sapinda or within prohibited degrees of relationships.
For Hindus, the second wife cannot claim maintenance because a second marriage is forbidden by law and is not recognised as being valid. The second wife is entitled to claim maintenance only if the husband concealed his first marriage from her.
For Muslims, a legally valid marriage requires that:
- both parties are Muslims of sound mind
- both parties have attained puberty (presumed at the age of 15),
- both parties consent to the marriage,
- the parties are not temporarily or permanently prohibited from marrying each other,
- the woman is not married to another man or observing iddat for another man,
- a proposal (ijab) is made,
- an acceptance of the proposal (qubul) is made,
- both proposal and acceptance are made at the same occasion and signify the establishment of marriage with the immediate effect,
- the proposal and acceptance are not repugnant to the Shariat,
- the proposal and acceptance are witnessed by two men or a man and two women who are Muslim adults of sound mind, know the bride and groom with certainty and understand the proposal and acceptance.
Live-in relationships are presumed to be a marriage. The wife who lives separately without sufficient reasons or due to personal mutual agreement cannot claim maintenance. “Wife” includes a divorced woman, but she must not be remarried on the date that she files an application for maintenance. A divorced Muslim wife can claim maintenance even if the iddat period has passed, but she must not be remarried. The age of the wife is irrelevant in claims of maintenance – she may be a minor or a major. Additionally, the wife must not be living in adultery.
Male and female children, irrespective of whether they are born inside or outside the legally valid marriage of the father and mother, can claim maintenance. They must be minors to claim maintenance. They may be married or unmarried.
Adult children can claim maintenance from their parents only if they have a physical or mental abnormality that makes them unable to maintain themselves. An adult unmarried daughter can claim maintenance from her parents.
Married minor girls can claim maintenance from their parents till they turn 18 if their husbands do not have sufficient means to maintain them. However, married adult girls cannot claim maintenance from the parents.
Mother and Father
Both the mother and the father, whether natural or adoptive, can claim maintenance from any one or more of their children. Daughters are also liable to pay maintenance to the mother and the father. A step-mother can claim maintenance only if she is a widow and does not have natural-born sons or daughters.
Conditions for Granting Maintenance:
Person from whom maintenance is claimed must have the ability to pay maintenance. Ability means being employed, owning land, having a source of income or having a healthy body capable of work.
- The person must have neglected the claimant or refused to pay maintenance.
- Persons claiming maintenance must be unable to maintain themselves. If a person is healthy, adequately educated or capable of pursuing gainful employment no maintenance is given. Wives and elderly parents are generally given maintenance. The mere fact that the wife is earning does not disentitle her from claiming maintenance. The question is whether she is able to maintain the same standard of living that subsisted prior to the neglect or divorce with her own earnings without having to depend on another.
What is the Amount of Maintenance that can be given?
Maintenance orders under Section 125 can be heard only by the Judicial Magistrate of First Class. She can order a monthly allowance of maintenance that she deems just and fair. This is usually decided after considering the income of the person, the standard of living that is consistent with the status of the claimant and the separate earnings, if any, of the claimant. The maintenance must aid in ensuring the same standard of living for the claimant. It must neither be so plentiful that it tempts the claimant to rely solely on maintenance nor so pitiful that it pushes the claimant into vagrancy or a lower standard of living.
Maintenance is payable either from the date of order of payment or from the date of application for maintenance, depending on the court’s judgment of the cooperation and decent behaviour demonstrated by the parties.
A second application of maintenance is allowed under Section 125 and the quantum of maintenance can be enhanced with passage of time or change in material circumstances and prices.
Where Can Maintenance Proceedings be Filed?
A wife can file maintenance proceedings in any place where :
- husband resides; or
- wife resides; or
- husband is physically present at the particular point of time; or
- husband last resided with wife.
Parents can file maintenance proceedings in any place where :
- they reside; or
- the child resides.
Enforcement of Maintenance Order
After a maintenance order is passed, a copy of the order must be supplied to the claimant free of cost. The person who is ordered to pay maintenance must obey the court order. The failure to pay maintenance without sufficient reason will result in a court warrant for collecting the amount due. The court warrant can attach any immovable property or salary of the person. If the person does not pay maintenance even after the warrant is executed, the person is liable to imprisonment for a maximum of 1 month or until the amount is paid, whichever is earlier. The application for enforcement of maintenance must be filed within 1 year from the date on which it became due. Otherwise the application will be dismissed.
453 Family Courts currently functional
As per government data, a total of 453 family courts are functional in the country as on August 2016. Thousands of cases are pending in these courts. More than 2.5 lakh cases are pending in Uttar Pradesh, more than 50000 in Bihar & Kerala.
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