MAINTENANCE UNDER SECTION 125 TO 128 OF CrPC
Author: Deepak Prakash
The section 125 to 128 provides for a remedy to wives, children and parents against such persons who neglect or refuse to maintain their dependents. It is speedier, effective and inexpensive relief for maintenance of the parties concerned. Provisions provided under these sections are civil in nature. This provision was included in the criminal procedure code, 1973 to provide or ensure a remedy which is speedier, effective and economical than that available in civil courts. The benefits these sections are for needy persons like wives, children and parents as mentioned in the act. The main objective of these provisions is to prevent starvation and vagrancy which often leads to the commission of crime as mentioned in the case of Bhagwan Dutt v. Kamla Devi, 1975 and also in Y. Narayan v. Barbara, 1976.
These provisions provide a simple, speedy but limited relief which ensures that the neglected wife, children and parents are not left beggared and destituted on the scrap heap of society which can lead to the a life of immorality, vagrancy and crime. One of the good things of this section is that it is applicable to all persons belonging to religions and is not concerned with the personal law of the parties.
The exercise of powers to grant maintenance is of a judicial character and only first class judicial magistrate have been empowered to deal with such matters of maintenance and grant the maintenance if there’s need. These provisions prescribes a self contained procedure which is speedy compels a man to maintain his wife, children and parents.
SECTION 125 of CrPC
This section of Criminal procedure code reads as ” Order for maintenance of wives, children 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”
This section has also been amended in different states according to their suitability and need.
The person is only liable to compensation to the following persons as mentioned in the section 125(1) ;
- His wife – The person (husband, man) is only liable to pay compensation to legally wedded wife. If the Marriage is invalid or illegal, it would be liability of the husband to provide maintenance. Also if the parties are living together and not married would be subject to the proof of the Marriage in court to be eligible for the maintenance.
Case – In the case of Samir Mandal v. State of Bihar, the Supreme Court held that the woman alleging bigamy under sec. 494(IPC) failed to establish her Marriage or second Marriage to another woman could result in the denial of her claim for maintenance.
- His legitimate or illegitimate child – This sub-section provides for the maintenance of children irrespective of legality of marriage. Whether the chil is legitimate or illegitimate the father is liable to maintain them.
In the case of a female child she may be entitled to claim maintenance from her husband after attaining majority or from both subject to the fulfillment of other necessary conditions.
- His legitimate or illegitimate abnormal child after attaining majority- Such child who by any reason of abnormality is unable to maintain itself, they are entitled to maintenance under this section.
- His mother or father – The person is liable to provide maintenance to his parents. It is unclear whether adopted parents also included under this some judgments has been in favor while some are not. The parents can claim maintenance from any of the children in case of more than one child .
Essential conditions for granting maintenance;
- The person must be able to provide maintenance to whom maintenance is claimed – the person who is able bodied and healthy must hold a means to support his wife, children and parents.
- Neglect or refusal to maintain – the person must have neglected to maintain the Person or persons against whom maintenance is claimed. The refusal may not only be by words or conduct, it can also be implied.
- The person claiming maintenance must be able to maintain himself or herself – A person who himself is unable to maintain himself or herself is not liable to provide maintenance to his wife, children and parents.
- Special provision for minor married girls : A minor married girl with insufficient means can claim maintenance from her husband given that he is able. If the husband is not sufficient enough to provide her maintenance she can claim maintenance from her father.
SECTION 126 of CrPC
The section 126 of criminal procedure code,1973 provides the procedure to be followed. The section 126 reads ;
(1) Proceedings 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”.
A magistrate is competent to entertain an application for maintenance against a person who works for gain within the territorial jurisdiction of such magistrate, although he may or may not have permanent address/residence within such jurisdiction.
The section 126(2) provides that it is mandatory that all evidence in such proceedings shall be taken in the presence of the person against whom it is proceeded or his pleader. An order passed under section 125 is no bar to a suit for maintenance in civil court. In case of inconsistencies between criminal and civil court decisions the latter shall prevail.
SECTION 127 of CrPC
Under this section the magistrate after scrutinizing and weighing the evidence and listening both the parties and upon satisfaction of the provided essential conditions for granting maintenance under section 125 may order the person against whom the proceedings began to pay a monthly allowance for the maintenance or as hee deem suitable way for the maintenance to his wife, children and parents.
SECTION 128 of CrPC
The section 128 of the criminal procedure code,1973 which is also the last section in the maintenance provisions to the wife, children and parents oversees the enforcement of the order of maintenance passed under section 125. In this a copy of the order is provided free of the cost to the other party in whose favor it is granted.
It is enforceable anywhere in India irrespective of territorial jurisdiction.