ORDER OF MAINTENANCE OF WIVES, CHILDREN AND PARENTS. U/CHAPTER 9 OF Cr.P.C., 1973 BY NIMESH ROHILLA @LEXCLIQ.

Introduction :-

From the period of independence of India to today’s so called digital India. Human growth has always been the primary motive behind every act of the human being and making changes according to the growth are very necessary and the need of civilised society is must for achieving that goal and for that we must have to consider the safety and well being of our women, childrens and even elders.

Women are considered as kids and it was assumed that women cannot maintain themselves on their own. But today we call that being Misogyny. But we cannot speak like that for all the women residing in India.

As we talk about the past. We Indians have from time to time harassed the Rights of women and given them not much attention.
But the right to maintenance for women has always been a hot topic for discussion.

Though women, children and elderly people are considered to be most delicate and in much need of protection, these are in fact the ones whose rights are being encroached everyday, everywhere in the world and their protection must be sought with paramount importance for every country. The notion of ‘maintenance’ in India is covered both under Section 125 of the Code of Criminal Procedure, 1973 (Section 125) as well as the personal laws. That is one of the matters we are going to discuss in this article .This idea further gets its roots from Article 15(3) reinforced by Article 39 of the Constitution of India, 1950 (the ‘Constitution’). And also what are the provisions which are described under chapter 9 of the CrPC.

This chapter deals with section 125 – 128 Of criminal procedure code.

Explanation – For the purposes of this Chapter-

a) “minor” means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is deemed not to have attained his majority;

b) “wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
“Any such allowance for the maintenance or interim maintenance and expenses of proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.”;

SECTION 125- ORDER FOR MAINTENANCE OF WIVES, CHILDREN AND PARENTS.

[1] If any person having sufficient means neglects or refuses to maintain.-
his wife, unable to maintain herself, or
his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
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
his father or mother, unable to maintain himself or herself,

PROVISIONS FOR MONTHLY ALLOWANCES:-

Under section 125 of the said code. A Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate as such magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:

Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.

[Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this Sub section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct:

Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.]

What happens in failure of execution of such orders ?

As stated under clause (3) of section 125 of the said code, If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole, or any port of each month’s allowance allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:

Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:

Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.

Explanation – If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just grounds for his wife’s refusal to live with him.
No wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her, husband, or if they are living separately by mutual consent.

On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.

PROCEDURE UNDER SECTION 126 of CrPC :-

Proceedings under section 125 may be taken against any person in any district-
Where he is, or
Where he or his wife resides, or
where he last resided with his wife, or as the case may be, with the mother of the illegitimate child.
All evidence to such proceedings shall
be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made, or, when his personal attendance is dispensed with in the presence of his pleader, and shall be recorded in the manner prescribed for summons-cases.

WHAT HAPPENS IF YOU WILFULLY NEGLECT OR AVOID SUCH ORDER?

Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case Ex-parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper.
The Court in dealing with applications under section 125 shall have power to make such order as to costs as may be just.

ALTERATION IN ALLOWANCE (SECTION 127)

On proof of a change in the circumstances of any person, receiving, under section 125 a monthly allowance for the maintenance or interim maintenance, or ordered under the same section to pay a monthly allowance for the maintenance, or interim maintenance, to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration, as he thinks fit, in the allowance for the maintenance or the interim maintenance, as the case may be.

[Provided that if he increases the allowance, the monthly rate of five hundred rupees in the whole shall not be exceeded.
Where it appears to the Magistrate that, in consequence of any decision of a competent civil Court, any order made under section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly.]

What happens where any order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband?

As stated under clause(3) the Magistrate shall, if he is satisfied that
the woman has, after the date of such divorce, remarried, cancel such order as from the date of her remarriage:
the woman has been divorced by her husband and that she has received, whether before or after the dale of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order-
(i) in the case where such sum was paid before such order, from the date on which such order was made,

(ii) in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman;

(4) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to 2 [maintenance as interim maintenance, as the case may be after her divorce, cancel the order from the date thereof.
At the time of making any decree for the recovery of any maintenance or dowry by any person, to whom a monthly allowance for the maintenance and interim maintenance or any of them has been ordered to be paid under section 125, the civil Court shall take into account the sum which has been paid to, or recovered by, such person as as monthly allowance for the maintenance and interim maintenance or any of them, as the case may be, in pursuance of the said order.

ENFORCEMENT OF ORDER OF MAINTENANCE.(section 128)

A copy of the order of maintenance or interim maintenance and expenses of proceeding, as the case may be shall be given without payment to the person in whose favour it is made, or to his guardian, if any, or to the person to whom the allowance for the maintenance or the allowance for the interim maintenance and expenses of proceeding, as the case may be is to be paid; and such order may be enforced by any Magistrate in any place where the person against whom it is made may be, on such Magistrate being satisfied as to the identity of the parties and the non-payment of the allowance or as the case may be expenses, due.

That that was the procedure under chapter 9 of the Criminal Procedure Code,1973

Thank you for reading.

Nimesh Rohilla

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