Maintenance itself is not defined in the Code of Criminal Procedure, 1973 although a provision in chapter IX of the same deals with the maintenance of wives, children and parents. Maintenance in legal terms signifies keeping something in good condition, and the same can be done by providing alimony, which has to be paid regularly to an ex-wife/husband or partner, especially if they have had children together. It is the duty of every person to maintain his wife, children and aged parents who are not able to live on their own.
The main objective behind the maintenance of wives, children and parents is as follows-
- The reason for these guidelines is not to punish the individual who is not following such guidelines, but to prevent homelessness and provide a speedy remedy for those who are aggrieved by this.
- It does not make distinction on the basis of religion or caste.
- It has not relation to the personal laws of a party.
The “Order of maintenance of spouses, children, and parents” is dealt with in Section 125 of the Cr.PC. The names of the parties who are entitled to maintenance, the basic ingredients for claiming and receiving maintenance, and the order of the first-class magistrate are all listed in this section.
Under section 125 of Cr.PC. The following individuals can claim maintenance-
- Wife from his husband,
- Legitimate or illegitimate minor child from his father,
- Legitimate or illegitimate minor child (physical or mental abnormality) from his father, and
- Father or mother from his son or daughter.
A wife can claim maintenance from her husband in the following conditions-
- Her spouse has divorced her, or
- She was able to get a divorce from her husband, and
- She hasn’t married again, and
- She is unable to support herself.
Though they have a distinct Act (Muslim Women Protection of Rights on Marriage Act) for them, Muslim wives can also claim maintenance under the Cr.PC.
In the following circumstances, a wife cannot claim and receive maintenance from her husband:
- Wife who is having an affair, or
- Refuses to live with her husband for no apparent reason, or
- By mutual agreement, they are living separately.
Legitimate or Illegitimate minor child
A person who, under the requirements of Section 3 of the Indian Majority Act, 1875, is deemed not to have gained his majority, i.e., has not reached the age of 18 years, is referred to as a “minor.”
Under Section 125 of the Cr.PC, a minor son (legitimate or illegitimate) is entitled to maintenance.
If a Minor Daughter (Legitimate or Illegitimate) is unmarried, she is entitled to maintenance from her father; if she is married, she is also entitled to maintenance from her father; however, the magistrate must be satisfied that her husband lacks the necessary and sufficient means to support his minor wife.
Legitimate or Illegitimate abnormal child who has attained majority
If a significant kid (legitimate or illegitimate) is abnormal (mentally or physically unfit), the father of that child is responsible for his upkeep and might claim maintenance on this basis.
- Maintenance can be claimed by both the natural father and mother.
- Adoptive mothers are entitled to support from their adopted sons.
- Maintenance is a statutory requirement that a father can claim. This claim cannot be rejected by claiming that the father failed to fulfil his parental obligations.
- Maintenance can be claimed by a childless stepmother.
It is also important to note down that maintenance can only be claimed if the mother and father are unable to maintain themselves, and their child is willingly not maintaining them. Maintenance cannot be claimed if the child is not able to maintain himself.
The essential conditions for claiming and granting a maintenance are as follows-
- Sufficient means for maintenance are available.
- If a person has sufficient means available for maintenance of his parents, wives and children, then one should provide for the same. If the same is not available, then it makes a valid defence.
- Neglect or refusal to maintain.
- On their demand for maintenance, any person neglects or refuses to maintain his wives, children, and parents with malafide intent or in any form of egoistic behaviour.
- Quantum of maintenance
- The amount of maintenance is referred to as the quantum of maintenance. The amount of maintenance required is determined by the standard of living. For example, if a wealthy family has a problem, the demand for maintenance will be more than it would be for a poor family, based on their previous way of living.