Maintenance under CrPC

About the author: Aaryan Wadhawan is a law enthusiast, a student from UPES Dehradun.

INTRODUCTION

Under the eyes of the law, maintenance after the separation of couples is given utmost importance. Even though the term ‘Maintenance’ is not itself defined in CrPC, it usually means ‘Alimony a person has to pay to his former wife, children, and parents as the law considers providing the maintenance as a duty of a man to his old aged parents, wife, and children who are incapable of living on their own. Section 125 of the CrPC deals with the order for maintenance of wives, children, and parents. Supreme court observed that Section 125 overrides any personal laws if they clash with each other at some point. Simply means that the duty is applied to all and is no different for people belonging to different religions.

ESSENTIALS OF CLAIMING MAINTENANCE

In order to grant or claim maintenance, the lawmakers have laid down certain pre-requisites which are supposed to be fulfilled. For the smooth functioning of the law, these pre-requisites consider the economical background of both the parties in order to decide the amount of maintenance that shall be granted to the aggrieved party.

1. The person providing the maintenance should have enough resources to provide maintenance to the other person.
2. The aggrieved party should be witnessing a lack of resources to maintain themselves.
3. The amount payable to the former wife, children, or old age parents is directly proportional to the standard of living of the person granting the maintenance. For example, if the standard of living of the ex-husband is high, the amount of maintenance given to the former wife would be high too.
4. If the husband of a minor girl lacks enough resources to maintain his wife, it is the duty of the father of the minor girl to provide the maintenance for his daughter.

WHO CAN CLAIM MAINTENANCE?

Wife from his husband, Legitimate or illegitimate or minor child from his father, Legitimate or illegitimate or minor child (physical or mental abnormality) from his father, and Father or mother from his son or daughter.

In Bai Tahira v. Ali Hussain Fidaali Chothiya 1, the court decided that every divorced woman is eligible for maintenance and the dissolution of marriage would not make any difference unless the woman is remarried. The Supreme Court ruled out that while granting Talak the amount of Mahr (Dower) is given according to the custom as enumerated in Section 127 (3) (b) of CrPC. If the amount of Mahr is sufficient then the court will order cancellation of Section 125 and the liability of maintenance will cease. However, it is circumstantial.

DOMESTIC VIOLENCE ACT AND MAINTENANCE

Ranging from rural areas to metropolitan cities, domestic violence takes place everywhere regardless of class, race, gender, and age. Violence against women takes place in every country and to reduce such violent acts, the Domestic Violence Act was passed in 2005. Domestic Violence means “Any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.” It is a civil law that not only protects the rights of married women but also the women who are in a live-in relationship with their partners and other women of the families like mothers, grandmothers, etc.

Section 20(1)[8] of the Protection of Women from Domestic Violence Act, 2005 talks about the maintenance. However, as a difference from Section 125 under CrPC, no woman can seek maintenance under Section 20 of the Domestic Violence Act without proving that she has been a sufferer of domestic violence. If she fails to prove her stance, the court shall not order the former husband to grant maintenance to the former wife and children under Section 20 of the DV Act. Under the Indian law, maintenance includes factors like the right to food, clothing, and shelter which should be provided to the parents, wife, and children in order to balance social justice when the latter are unable to maintain themselves. Maintenance is considered a secular law that is not different for people belonging to different religions.

In order to understand it further, we shall refer to Mahmood Ahmed Khan v. Shah Bano Begum [2] where the court of law ruled out that under the Koran wherein it was ordained to maintain the wife. Further, in the Daniel Latifi case [3] it was challenged that the act is unconstitutional violating Articles 14 and 21 because it was contrary to the provisions of Islamic Law. However, the court interpreted that since it was a secular law it would be discriminatory against Muslim women and equality would be infringed.

Another case that deals with Domestic Violence and Maintenance are the Lalita Toppo v. State of Jharkhand and Anr. [4] (2018). in the above-mentioned case law, the Supreme Court of India ruled that any woman can claim maintenance from her abuser under the Protection of Women from Domestic Violence, 2005. the court observed that the abuser may not be married to the woman in order to grant her the necessary maintenance. Due to this case, women in live-in relationships can now claim maintenance from their abuser under the Domestic Violence Act of 2005. There existed a common belief that women who are self-sufficient and earn enough to maintain themselves shall not be allowed to claim maintenance from their former husbands. But in the Binita Dass v. Uttam Kumar [5] case, the Delhi High Court held that even if a lady is earning a monthly income and has sufficient means to maintain herself, a magistrate cannot deny maintenance to the lady on the grounds that she is earning money and is qualified enough. She must be granted maintenance despite her ability to earn money.

MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS ACT

The Maintenance and Welfare of Parents and Senior Citizens Act was passed in 2007 to provide support to elderly parents and senior citizens who are not able to live on their own. This act also resulted in the establishment of the Maintenance Tribunal which aims to provide speedy relief to elder citizens of our country. In order for the parents to claim maintenance, they can wish to claim it under section 125 of the CrPC or this act. They cannot file a petition under both provisions.

Under this act, the following people may claim maintenance.

1. Parents- The term parents include adoptive, step-parents along with biological parents. The age of the parents should not be considered in order to grant maintenance.
2. Grandparents- Both maternal and paternal grandparents are allowed to seek maintenance.
3. Senior Citizen- According to the Indian Laws, a senior citizen is anyone who has crossed the age of 60 years, and to claim maintenance, the senior citizen must be incapable of living on their own with his or her means of earning or property if any of it exists.

Under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, adult children irrespective of gender are responsible for paying maintenance to parents and grandparents. There are many senior citizens who don’t have offspring. For those people, there is a provision under this act that allows them to seek maintenance from a relative who is possessing their property or will inherit the property of the senior citizen once they die. For the adult to provide maintenance, he/she should have enough resources to provide for the maintenance. The amount of maintenance provided by the children is capped at 10,000 Rupees per month and the amount of maintenance provided to the senior citizen by a relative depends on the proportion of their inheritance of property.

If the person who is liable for paying maintenance fails to do so, a warrant is issued against them for collecting the amount which is due. If the person does not obey the orders of the court and still defaults on the payment, he/she is liable for imprisonment for a maximum tenure of one month or until the amount is paid.

References:

[1] Bai Tahira v. Ali Hussain Fidaali Chothiya 1979 SCR (2) 75

[2] Mahmood Ahmed Khan v. Shah Bano Begum 1985 SCR (3) 844

[3] Daniel Latifi & Anr v. Union of India Writ Petition (civil) 868 of 1986

[4] Lalita Toppo v. State of Jharkhand and Anr. 30th October 2018

[5] Binita Dass v. Uttam Kumar 9 th August 2019

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