MAINTENANCE UNDER CRPC, 1973

Section 125 -128 provide for speedy, effective and inexpensive remedy against person who neglect or refuse to maintain their ‘dependent’ wives, children and parents. These provision are a major for Social justice and fall within the constitutional sweep of Art 15(3) reinforced by Art. 39 [ Ramesh Chandra Kaushal v. Veena Kaushal AIR 1978 SC 1807]. Speaking for the bench justice Krishna Iyer observed that: ” we have no doubt that section of the stautes is calling for construction by courts are not petrified print but vibrant words with social functions to fulfill. The brooding presence of the constitutional empathy for the weaker section like women and children must inform interpretation if it is to have social relevance. So viewed it is possible to be selective in picking out the interpretation out of two alternative which advance the cause, i.e the cause of the the derelicts.”

These provisions ensure a protection of equality of sexes and protective discrimination in favour of the week, viz. neglected or divorce voice coma abandoned children and needy and helpless parents they are, in a way, aimed at preventing starvation and vagrancy relating to the commission of crime [41st Report, of Law Commission of India, 1996].

These provision are applicable to the person belonging to all religion and have no relationship with the personal law of the parties [Nanak Chand chandrakishor IR 1970 SC 446], aur nationality or domicile of the parties. But the personal law of the parties is relevant for deciding the validity of the marriage and therefore cannot be altogether excluded from consideration. [Yamuna Bai v. Anant Rao, AIR 1988 SC 644]. Further, the provision relating to maintenance under any personal law is separate and distinct. There is no conflict between the two provisions. If a person has already obtained a maintenance order under his or her personal or former the magistrate by fixing the amount of maintenance may take that into the consideration while fixing the quantum of maintenance under the code.

The constitution bench in Mohammed Ahmed Khan V Shah Bano Begum (1985 2SCC 556), considering the provision of section 125 opened that the the said provision is truly secular and character and is different from personal law of the parties. The court further held that such provision are essentially of a prophylactic character and cut across the barrier of the religion. The court further held that the liability imposed by section 125 to maintain close relatives who are indigent, is found upon the individual’s application to the society to prevent pregnancy and destitution.

These provisions are not intended to interfere with the civil right of the parties, but are intended to provide a solution of emergency. Section 125 confers a statutory right and is, therefore, not affected by personal law. Thus, a shia wife under mutah marriage would be entitled to maintenance under section 125, although she may not enjoy the right of maintenance under Muslim law.

Unlike the personal laws which are applicable only to persons belonging to particular religions the provision of the Code of Criminal Procedure, 1973 are applicable to all irrespective of religion. Relief under this code is speedy and is available irrespective of whether  or not any matrimonial proceedings are pending. The salient features of the provisions are:

1. A wife include a divorce wife. 
2. Only lawful wife is entitled to maintainence under this section.
3. A wife may seek maintenance even without any matrimonial litigation.
4. She may stay separate if there any sufficient ground justifying that and yet get maintenance.
5. There must be neglect or refusal on part of husband to maintain her.
6. Wife must be unable to maintain herself.
7. The court can grant interim maintainance also.
8. The amount very varied or cancelled if there is change in circumstances.
9. In certain situations a wife may be Departed from claiming maintenance.
10. Her write terminates on remarriage.
11. The proceedings are summary and expenditious.

Also, under the section a woman cannot take the claim for past maintenance. The court has jurisdiction under section 125 code of criminal procedure only to direct payment of further maintenance i.e. maintenance from the date of petition. “Maintenance under this provision may be ordered from the date of order or from the date of application. It would depend on the facts and circumstances of the case. Thus, in Dilip Kumar v. state of U.P., where an application for maintenance remained pending for 21 years due to the husband’s willing tactics, it was held that he was liable to pay from the date of wife’s application.