Dharmashastra has described the maintenance of wife child and parents a moral duty of every person. Manusmriti has said to the extent that:
Every person should maintain his wife minor child and parents even after performing a hundred obligations. Law also provides for the maintenance of persons.
Right to the maintenance of wife children and parents
Section 125 of Criminal Procedure Code1973. Lay down the provision of wife’s children and patents rights to maintenance according to it:
It any person having sufficient means neglect or refuses to maintain-
- His wife is unable to maintain herself.
- His legitimate or illegitimate child whether married or not unable to maintain herself or
- His legitimate or illegitimate Child not being a married daughter who has to attend majority whether its side is by reason of any physical or mental abnormality or injury unable to maintain herself.
- His father or mother unable to maintain himself or herself then such wife children’s or parents shall have the right to obtain a reasonable amount of maintenance from his husband father and son respectively every month.
Thus, it is clear that section 125 of the code provides wife children and parents right of maintenance but it said essentially for at:
- The person dimmed maintenance should be unable to maintain himself or herself
- The person against whom maintenance is demanded should have sufficient mean for maintenance
- Such a person has refused on a legend the maintenance of his wife children and parents.
- Wife for includes a woman who has been divorced by his obtain a divorce for husband and has not remarried.
Rohtas Singh vs Smt. Ramendri (A.I.R 2000 S.C.952)
Supreme Court decided that of women remain wife for the purpose of maintenance even after divorce and is liable for maintenance a minor married daughter has been considered liable for maintenance from her father.
- When her husband does not have sufficient means for maintenance.
- Until she attains majority.
Right of maintenance of an illegitimate child
Section 125 ( 1) B and C of the code provides the right of maintenance to illegitimate son from his father if:
- He is unable to maintenance himself
- He is minor and
- If measure then is unable to maintain herself due to physical or mental abnormality or injury.
Smt. YamunabaiAnantrao vs. AnantraoShivram (A.I.R 1988 A.C.644)
Supreme Court provides that illegitimate son has the right of maintenance from his father.
Parents right to maintenance
Section 125 (1) D of the courts provides parents with the right to maintenance from their son provides that
- They are unable to maintain themself and
- Son has sufficient means to maintain
Dr Smt. Vijay Manohar Arbat v. KashiraoRajaramSawai (A.I.R 1987 S.C. 1100)
Supreme Court declared to the extent that the liability to maintain parents is not only on son but also on daughters.
Wife when liable for maintenance
Section 125-4 of the courts provide that the wife shall not be able to take maintenance from his husband in the following situations:
- When she lives in adultery.
- When she refused to live with husband without any sufficient reason.
- When they live separately by mutual consent.
Dev Narayan Halder. Smt. Anushree Halder(A.I.R 2003, S.C. 2174):
Supreme Court declared that such a wife does not have the right of maintenance from her husband who is living separately from her husband without sufficient reason. The wife can claim maintenance when she lives separately from the husband with sufficient reason when the husband creates such circumstances when compels wife to live separately from him, then she Shall claim maintenance even though living separately from the husband.
T.C. Chalo V.S. Annamma, (A.I.R 1994, Kerala 107):
Following are considered sufficient reason for living separately:
- When the husband has contracted marriage with another woman (Aziz Mohammad vs Syeda Begum, A.I.R 1981 N.O.C 55 Jammu Kashmir).
- When the husband keeps a concubine
- When husband behave with cruelty (Siraj Mohammed Khan Jaan Mohammed Khan v. Hafizunnissayasin khan, A.I.R 1981 S.C. 1972)
- When the husband is unable to behave sexually intercourse due to impotency(Ashok Kumar Singh vs. Additional sessions judge, Varanasi, A.I.R 1996, S.C.333)
Amount of maintenance
The amount of maintenance has been fixed under section 125 of the code earlier this amount was rupees 500 maximum for every person but the Criminal Procedure Code Amendment Act 2001 the maximum limit has been abolished not this amount depends upon the discretion of the magistrate.
The magistrate can order for the amount of maintenance which is considered sufficient generally the amount is fixed considering the position of parties necessity income of the husband etc. The amount of maintenance could be elected under section 127 when there is charge in the circumstances this amount can be increased or decrease the amount of maintenance could increase considering the income of the husband. (Anita Krishna Kumar v.s Krishna Kumar Ramachandra, A.I.R 2003, Mumbai 273).
Jasbir Kaur v. District Judge, Allahabad, A.I.R 1997 A.C.3397):
Supreme Court stated that the amount of maintenance should be decided willingly considering the living standard of parties, economic position and changing circumstances .the amount should not so less that the wife and child could not live properly.
When shall the maintenance paid
Section 125 to of the Code provides that the amount of maintenance Shall be paid:
- From the date of order
- From the date of application.
Application for maintenance
Section 126 of the code provides proceeding under section 125 may be taken against any person in any district –
- Where he is or
- Where he or his wife suicide or
- Where he last resided with his wife, or as the case may be with the mother of the illegitimate child.
In this respect the case of Kumudumv.sKanappam, A.I.R 1999 S.C.839) is a good example, in this case, the wife decided at a place named T and there she applied from the maintenance, the magistrate dismissed the application on the ground that the husband was not within its jurisdiction. Supreme Court did not consider its correction and decided that the application could be filed where the wife resides.
The outcome of the rebelliousness of request
Area 125 three of the code gives that on the off chance that any individual neglects to contrast and the request without adequate reason, at that point the officer Mein for each rupture of the request gave a warrant following the sum and after the execution of the warrant Mein sentence such individual for the entire or any piece of every month remittances staying unpaid to actualize for a term which may reach out to one month.
It the measure of support has been paid sooner than he will be condemned to execute just dependent upon the period to which is it is paid.
Here it is additionally significant that or not paying the measure of support the spouse will not be released by the sentence of actualizing it is an approach to acquire the sum only(Kuldeep Kaur versus Surendra Singh A.I.R 1989 Supreme Court 232.).
Segment 125 Under Criminal Procedure Code, 1973-Order for support of spouses, kids and guardians:
- If any individual having adequate methods ignores or won’t keep up:
- His better half, unfit to look after herself, or
- His authentic or ill-conceived minor kid, regardless of whether wedded or not, incapable to look after itself, or
- His authentic or ill-conceived kid (not being a hitched little girl) who has accomplished larger part, where such youngster is, by reason of any physical or mental variation from the norm or injury incapable to look after itself, or
- his dad or mom, unfit to keep up oneself, a Magistrate of the top of the line, endless supply of such disregard or refusal, request such individual to offer a month to month leniency for the support of his significant other or such kid, father or mother, at such month to month rate not surpassing 500 rupees in the entire, thusly Magistrate thinks fit, and to pay the equivalent to such individual as the Magistrate may every now and then immediate. Provided that the Magistrate may arrange the dad of a minor female youngster alluded to in provision (b) to offer such leeway until she achieves her dominant part if the Magistrate is fulfilled that the spouse of such minor female kid, whenever wedded, isn’t equipped with adequate methods.
Clarification.- For the reasons for this Chapter:
- “Minor” signifies an individual who, under the arrangements of the Indian Majority Act, 1875 (9 of 1875 ); is esteemed not to have accomplished his lion’s share.
- “Spouse” incorporates a lady who has been separated by, or has acquired a separation from, her better half and has not remarried.
- Such remittance will be payable from the date of the request, or, if so requested, from the date of the application for upkeep.
- If any individual so requested comes up short without adequate reason to agree to the request, any such Magistrate may, for each rupture of the request, issue a warrant for requiring the sum due in the way accommodated imposing fines, and may sentence such individual, for the entire or any piece of every month’ s stipends staying unpaid after the execution of the warrant, to detainment for a term which may stretch out to one month or until instalment if sooner made. Provided that no warrant will be given for the recuperation of any sum due under this area except if application be made to the Court to exact such sum inside a time of one year from the date on which it got due: Provided further that if such individual ideas to keep up his significant other on the state of her living with him, and she won’t live with him, such officer may consider any grounds of refusal expressed by her, and may make a request under this area despite such offer, in the event that he is fulfilled that there is simply ground for so doing. Clarification.- If a spouse has contracted marriage with another lady or keeps an escort, it will be viewed as simply grinding for his better half’ s refusal to live with him.
- No Wife will be qualified for getting remittance from her better half under this segment in the event that she is living in infidelity, or if, with no adequate explanation, she won’t live with her significant other, or in the event that they are living independently by common assent.
- On verification that any spouse in whose favour a request has been made under this area is living in infidelity, or that without adequate explanation she won’t live with her better half, or that they are living independently by common assent, the Magistrate will drop the request.