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CODE OF CRIMINAL PROCEDURE
Question 1
. What are the essential conditions for granting maintenance? Discuss the jurisdiction of magistrate to deal with maintenance proceedings.
Answer.
INTRODUCTION:
The word ‘Maintenance’ is not defined in the Code of Criminal Procedure, 1973. Chapter IX of the Code of Criminal Procedure deals with provisions for maintenance of wives, children and parents. ‘Maintenance’ in general meaning is keeping something in good condition. Under Indian law, the term includes an entitlement to food, clothing and shelter. The provisions of maintenance under Crpc (Code of Criminal Procedure) are applicable to persons belonging to all religions and have no relationship with the personal laws of the parties.
HISTORY:
Many Hindu sages of Ancient India including Manu and Brihaspati were of the opinion that maintenance of certain persons is a personal obligation. “A man may give what remains after the food and clothing of family. The one (giver) who leaves his family unfed may taste honey at first but afterwards finds it poison.”Mitakshara says that “Where there may be no property but what has been self- acquired, the only persons whose maintenance out of such property is imperative, are aged parents, wife and minor children.”
WHO CAN CLAIM AND GET MAINTENANCE:
Section 125 of Cr.PC deals with “Order for maintenance of wives, children and parents”. According to Section 125(1), the following persons can claim and get 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.
Wife: In the case of Chanmuniya v Virendra Singh, Supreme Court has defined ‘Wife’ and it includes even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time. Strict proof of marriage should not be a precondition of maintenance under Section 125 of the Cr.PC.
By the phrase 'unable to maintain herself', it is not meant that she should be absolutely destitute and should be first on the street, should beg and be in tattered clothes and then only she will be entitled to move an application under Section 125 of the Code.
The wife is not entitled to receive an allowance from her husband in three cases, i.e.,:
- if she is living in adultery, or
- if she refuses to live with her husband and without any sufficient cause, or
- if they are living separately by mutual consent.
In Mohd. Ahmed Khan v. Shah Bano Begum, it is declared that a Muslim husband having sufficient means must provide maintenance to his divorced wife who is unable to maintain herself. Such a wife is entitled to the maintenance even if she refuses to live with the Muslim husband because he has contracted another marriage within the limits of four wives allowed to him by Quran.
Child: According to Section 125(1)(b) of the Code of Criminal Procedure, if any person having sufficient means neglects or refuses to maintain his legitimate or illegitimate minor child, whether married or not, unable to maintain itself or as per Section 125(1)(c) of the Code, 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, 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 such child, 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.
Father or mother: According to Section 125(l)(d) of the Code of Criminal Procedure, if any person having sufficient means neglects or refuses to maintain his father or mother, unable to maintain himself or herself, 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 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.
Interim maintenance:
As per second proviso to Section 125(1) of the Code of Criminal Procedure, during the pendency of the proceeding regarding monthly allowance for the maintenance under Section 125(1) of the Code, 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.
Further, an application for the monthly allowance for the interim maintenance and expenses for 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.
Essential conditions for granting maintenance
There are some essential conditions which should be fulfilled for claiming and granting maintenance:Sufficient means for maintenance are available.
Neglect or refusal to maintain after the demand for maintenance.
The person claiming maintenance must be unable to maintain himself/herself.Quantum of maintenance depends on the standard of living.
JURISDICTION OF MAGISTRATES TO DEAL WITH MAINTENANCE PROCEEDINGS:
According to Section 125(1)(d), If any person neglects or refuses to maintain his wife, children or parents, then a Magistrate of the First Class can order such person to make a monthly allowance for the maintenance of his wife, children or parents, at such monthly rate as such Magistrate thinks fit, and to pay the same to such person as the direction of magistrate.
If a minor female child is unmarried, then the magistrate can order to make such allowance, until she attains her majority. In case a minor child is married and the magistrate is satisfied that the husband of such minor female child is not possessed of sufficient means, then the magistrate can order father of the minor female child to make such an allowance for maintenance.
When a proceeding is pending regarding monthly allowance for maintenance, the Magistrate can order such person to make a monthly allowance for the interim maintenance of his wife, children or parents and the expenses of such proceeding which the Magistrate considers reasonable.An application for the monthly allowance for the interim maintenance and expenses of proceeding should be disposed within sixty days from the date of the notice of the application to such person.According to Section 125(2), If a court order for such allowance for maintenance or interim maintenance and expenses of the proceeding, then it should be payable from the date of the order or if so ordered, then it shall be payable from the date of application for maintenance and expenses of proceedings.
According to Section 125(3), If any person fails to comply with the order without sufficient cause, then Magistrate can order to issue a warrant for levying the amount with fines. If the person again fails after the execution of the warrant, then the punishment of imprisonment for a term which may extend to one month or until payment of sooner made is awarded.
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