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FREQUENTLY ASKED QUESTIONS ON MAINTENANCE
Team SoOLEGAL 13 Apr 2023

FREQUENTLY ASKED QUESTIONS ON MAINTENANCE

FREQUENTLY ASKED QUESTIONS ON “MAINTENANCE”

UNDER

SECTION 125 OF THE CODE OF CRIMINAL PROCEDURE

Introduction

Section 125 of the Code of Criminal Procedure, 1973[1] (herein after known as “CrPC”) deals with the maintenance of wives, children, and parents. It provides for the payment of a monthly allowance by a husband, father or son to their wife, children, or parents who are unable to maintain themselves financially.

The section places a legal obligation on the husband, father, or son to provide maintenance to their wife, children, or parents who are unable to maintain themselves. The obligation arises when these persons do not have adequate means of income to support themselves, and the person liable to provide maintenance has sufficient means.

The application for maintenance can be made by the wife, children, or parents who are unable to maintain themselves. The application can be made to the District Court or the Magistrate's Court in the place where the wife, children, or parents reside or where the husband last resided with his wife.

The court can order the person liable to pay maintenance to provide a monthly allowance to the dependent wife, children, or parents. The amount of maintenance will depend on various factors such as the financial status of the person liable to pay maintenance, the needs of the dependent person, and the standard of living that the dependent person was accustomed to.

FAQ’s:

Maintenance Laws to Wife

1.      What is Section 125 of the Code of Criminal Procedure?

Section 125 of the Code of Criminal Procedure provides for the maintenance of wives, children, and parents who are unable to maintain themselves financially.

2.      What is the importance of Section 125 of the Code of Criminal Procedure?

Section 125 of the Code of Criminal Procedure is a social justice tool enacted to protect women and children from a life of potential vagrancy and destitution.

3.      Is Section 125 of the Code of Criminal Procedure “civil or criminal in nature”?

Proceedings under Section 125 of the Code of Criminal Procedure are civil in nature.

4.      Who can apply for maintenance under Section 125 of the Code of Criminal Procedure?

The following persons can claim maintenance:

a)     Wife of a person who is unable to maintain herself.

b)     The legitimate or Illegitimate Minor Child of the person who is unable to maintain itself.

c)     The Legitimate or illegitimate child of a person who has attained majority but due to the reason of any physical or mental abnormality or injury is unable to maintain itself.

d)     The Father or Mother of the person who are unable to maintain themselves.[2]

 

5.      Who is liable to pay maintenance under Section 125 of the Code of Criminal Procedure?

The husband, father, or son is liable to pay maintenance to their wife, children, or parents who are unable to maintain themselves financially.

6.      Can divorced wife claim maintenance under Section 125 of the Code of Criminal Procedure?

Yes, a divorced wife can claim maintenance under Section 125 of the Code of Criminal Procedure if she is unable to maintain herself and has no sufficient means of income.

7.       Can working wife claim maintenance?

Yes, a divorced wife can claim maintenance under Section 125 of the Code of Criminal Procedure.

8.      Can a foreign citizen’s wife (of Indian origin) claim maintenance under Section 125 of the Code of Criminal Procedure?

Yes, a foreign citizen’s wife (of Indian origin) can claim maintenance under Section 125 of the Code of Criminal Procedure.

9.      Can educated wife claim maintenance under Section 125 of the Code of Criminal Procedure?

Yes, an educated wife can claim maintenance under Section 125 of the Code of Criminal Procedure.

10.  What is interim maintenance and what is its purpose?

Interim maintenance is a form of interim relief that should be paid during proceedings or until the final order and is meant to provide financial support to a wife until a final financial resolution is reached. The purpose of this provision of interim maintenance, which is found in Proviso (2) to Section 125(1), is to protect the claimant from unnecessary financial hardship until the final disposition of the proceedings.[3]

11.  How long the application for “interim maintenance” should be disposed of?

The third proviso of section 125(1) states that whenever an application for interim maintenance or expenses for the proceeding is made, the same shall be disposed of within 60 days from the date of the service of the notice of the application to such person.[4]

12.  What is the procedure for filing an application for maintenance under Section 125 of the Code of Criminal Procedure?

The application for maintenance can be made to the District Court or the Magistrate's Court in the place where the wife, children, or parents reside.[5]

13.  How will the jurisdiction of the appropriate court to take cognizance be decided?

The following courts have jurisdiction over the complaint:

a)     Within whose jurisdiction the husband is or resides.

b)     Where the wife resides where they last resided together

 

14.  What factors are considered while determining the amount of maintenance?

The court considers various factors while determining the amount of maintenance, including the financial status of the person liable to pay maintenance, the needs of the dependent person, and the standard of living that the dependent person was accustomed to.

Financial commitments such as EMIs should be considered when determining maintenance amount.[6]

15.  What happens if the person liable to pay maintenance does not comply with the court order?

The following steps can be taken by Court if the person does not comply with the Court’s order:

a)     A warrant for attachment can be issued in order to levy the amount.

b)     A magistrate can imprison the husband (or father) for the entire or a portion of each month's allowance or the interim maintenance and expenses of the proceeding.[7]

16.  Can a woman who is not married to a man or is in a live in relationship claim maintenance?

Yes, where a man and a woman have been living together for a long time without a valid marriage, personal law creates an interpretation of a valid marriage, entitling such woman to maintenance.[8] The court, taking into account the provisions of the Protection of Women from Domestic Violence Act, 2005, as well as changes in social attitudes and values, held that a broad interpretation of the wife should be given, including women and men who have been living together for a long time, strict proof of marriage should not be preconditioned for maintenance under section 125 Cr.P.C so as to fulfill the true spirit of the benefits of this section.

No Maintenance to Wife/ Reduce Maintenance

17.  When will the wife be denied maintenance and interim maintenance?

In the following cases, women will not be entitled to maintenance or interim maintenance, and if a maintenance order has already been issued by the magistrate, it may be revoked:

a)     If she has sufficient means to maintain herself

b)     When the women is living in Adultery

c)     When the women without any sufficient reason refuse to live with her husband

d)     When the woman is living separately by mutual consent

 

18.  Can a husband refuse to pay maintenance if his wife is living in adultery?

Yes, if the husband can prove that his wife is living in adultery, he can refuse to pay maintenance.[9]

19.  Can a wife be denied maintenance if she refuses to live with her husband without any reasonable cause?

Yes, if the wife refuses to live with her husband without any reasonable cause, she can be denied maintenance under Section 125 of the Code of Criminal Procedure.[10]

20.  What happens if the husband is unable to pay maintenance?

 If the husband is unable to pay maintenance due to his financial condition, the court can reduce the amount of maintenance or exempt him from paying maintenance.[11]

21.  Can wife claim maintenance from her husband's relatives under Section 125 of the Code of Criminal Procedure?

No, a wife cannot claim maintenance from her husband's relatives under Section 125 of the Code of Criminal Procedure. Only the husband is liable to pay maintenance under this section.

Related issues to Maintenance

22.  Can the magistrate think about her income and other means when deciding on wife maintenance?

Yes, it is competent to consider the separate income and means of the wife when deciding maintenance. If she has sufficient means to support herself, the court will consider this and determine the maintenance amount based on the parties' status.[12]

23.  When can the magistrate pass ex-parte order?

When the magistrate is satisfied that every effort has been made to secure the attendance of the person proceeded against and that he is willfully avoiding service or willfully failing to attend the court.[13]

24.  Can the magistrate make due changes in the ordered maintenance after sometime?

Yes, under Section 127 of the Code of Criminal Procedure[14], the magistrate has the authority to change the amount of maintenance ordered due to a change in the circumstances of the person receiving the maintenance or paying the amount.

25.  Should section 125 maintenance be payable from the date of order or from the date of application?

Ideally, it should be from the date of the order, unless the order specifically states that the maintenance amount is to be paid from the date of the application. If there is nothing specific in the order, it can be assumed that it should be from the date of the order.[15]

26.  What should be awarded to the wife as maintenance?

So, there is no set rule for calculating maintenance; it varies from case to case and fact to fact, but ideally, 1/3 of the husband's income may be awarded as maintenance.

27.  Is it necessary to file income affidavit?

Yes, it gives a clear picture to the court about your income and liabilities.

28.  Where to appeal in maintenance case?

Family Court Appeals are in High Court 

 

We have tried to address as many questions as possible; however, if you have any further questions, please contact us at +91 9810929455 or via email at info@soolegal.com.

Did you find this write up useful? YES 0 NO 0
Betty Harper   4 May 2023 5:39am
I was in a very bad situation financially after losing all my savings to a cryptocurrency investment scam, I was swindled off all my entire savings and read more
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