Thursday, February 8, 2007

SECTION 125 OF CODE OF CRIMINAL PROCEDURE, 1973

SECTION 125 OF CODE OF CRIMINAL PROCEDURE, 1973

1.        The object of the "maintenance" proceeding is not to punish a person for his past neglect but to compel him to provide and to support those who are unable to support themselves. It is the constitutional right of the neglected and utterly persons bringing claim for maintenance. The principles of maintenance are determined by the strength of claim affections and duties of persons on whom the obligation has been cast. The right to maintenance is not merely a moral but also a legal obligation as held by Bombay High Court in its verdict Mohd. Jusab v Haji Adam , which is reported in I.L.R. 7 Bom 71.      

2.        The Calcutta and Gauhati High Courts are held in its judgments that the word "maintenance " which includes food, clothing, lodging, cost of education of minor children and other necessary expenses for survival, which is reported in AIR 1950 Cal 465 and AIR 1973 Gau 56 .

3.        Sec.125 of Cr.P.C. is truly secular in character. It applies to "anybody" irrespective of personal law applicable to them. And further under Sec.125 Cr.P.C. an explanation has been added in which proviso (b) explains that "wife" which includes a "divorced wife" until she gets re-married is entitled to receive maintenance from her "divorced husband" under Sec.125 Cr.P.C. as confirmed in Sukumar Dhibar v Smt.Anjali Dasi which is reported in 1983 Cr.L.J. 36 Cal .

4.        Likewise, a "divorced Muslim woman", so long as she has not remarried, is a "wife" for the purpose of Sec.125 Cr.P.C. The statutory right available to her under this section is unaffected by the provisions of the personal law applicable to her. Before 1986 the divorced wife can apply maintenance against her husband, only under Section 125, Cr.P.C. But in Mohd Ahmad Khan v Shah Bano Begam and others the Supreme Court held that if a divorced woman is able to maintain herself, the husband's liability ceases with the expiry of the period of iddat (three menstrual courses after the date of divorce, that is, roughly three months), but if she is unable to maintain herself after the period, she is entitled to have recourse to Section 125 Cr.P.C. This decision led to a controversy. As such the Muslim Women's Bill, later to become the Muslim Women (Protection of Rights on Divorce) Act, 1986, was passed.

5.        Subsequently, the Supreme Court held in Bai Taahira Vs. Alli Hussain case which is reported in 1979 Cr.L.J. 151 SC that every "divorced wife" is entitled to the benefit of maintenance allowance and the dissolution of the marriage makes no difference to this right under the Cr.P.C.

6.        Now the Union Law Ministry had decided to amend the Sec.125 of Cr.P.C. so as to increase the quantum of maintenance from Rs.500 to Rs.1000. And also to stipulate the period of disposal of interim maintenance application would be 60 days from the date of filing such application. 

7.        Further the Union Law Ministry had taken an initiative by bringing an amendment in Section 125 and making consequential changes in Section 127 of the Code of Criminal Procedure to remove the ceiling of maintenance allowance since "in view of the cost of living index centrally rising, retention of a maximum ceiling is not justified," and further the said amendment proposes to have a periodic revision taking into account of the inflation and rise in the cost of living.

8.        Under sec.24 of the Hindu Marriage Act, 1955 the affected person is entitled to pray for interim maintenance till the disposal of the main petition. On the contrary, there is no such provision in proceedings under Sec.125 of Cr.P.C. for granting interim maintenance to the petitioner till the disposal of the main petition. But even then in the year 1986 Supreme Court held in Smt.Savitri v Govind Singh, which is reported in 1986 Cr.L.J. 41 SC, that awarding interim maintenance till the pendency of the proceedings under Sec.125 Cr.P.C. is a reasonable and justifiable one. In the same way most of the High Courts and trial courts have followed the Supreme Court guidelines and awarding the interim maintenance to the aggrieved persons. As such now the Union Law Ministry have decided and bringing an amendment in the Sec.125 Cr.P.C. thereby giving powers to the Courts to award interim maintenance to the aggrieved person if she/he asks remedy under Sec.125 Cr.P.C.

9.        All over the country the women association have welcomed the steps being taken by the Union Law Ministry in the process of amending Sec.125 Cr.P.C. In this way All India Democratic Women's Association (AIDWA) in a statement welcomed the Law Ministry's initiative and suggested that the law be strengthened by providing that, in the event of conflicting claims about a husband's income, the wife's statement should be accepted and the onus would be on the husband to disprove it as held in Rajathi v C.Ganesan which is reported in AIR 1999 SC 2374 .

10.    Eventhough the personal law of Muslim, the husband had been permitted to have more than one wife but it is his primary obligations to maintain his wives. If he fails to maintain his wife or having more than four wives at a time then she can go for recourse under Sec.125 Cr.P.C.

11.    If a husband married second time during the subsistence of the first marriage (1970 M.L.J. (Cri) 15), or treating wife cruelly (1986 Cr.L.J. 1129 M.P.), or husband being impotent (1981 Cr.L.J. 1430 SC) then under these circumstances also the wife can approach the court for claiming maintenance under Sec.125 Cr.P.C. as held by Supreme Court and various High Courts as stated above. Further there is no legal bar for the abandoned wife to initiate simultaneous proceedings before the proper forum under her personal law or under the Indian Penal Code (IPC) in addition to seeking remedy under Sec.125 of Cr.P.C. as held in P.Jayalakshmi v V.Ramachandran which is reported in AIR 1992 Mad 190 . 

12.    In nutshell, the purpose behind the Sec.125 Cr.P.C. is as an abandoned wife she should not be permitted to languish in poverty and destitution. It is social legislation, and obstacles have to be over come and technicalities to be ignored. It is crystal clear that the husband has persistently evaded the payment of maintenance awarded against him then the Judicial Magistrate had no option except, after issuing the distress warrant, to pass the orders for keeping the husband in jail for non-payment of the amount of maintenance payable by him to his wife as held in Bhogiram v Bhagwati Bai which is reported in 1987 Cr.L.J. 22 M.P .

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