CASE LAW RELATED TO SECTION 125 CRPC PROCEEDINGS REGARDING MAINTENANCE
Hon'ble the Apex Court in the case of "Savitaben Somabhai Bhatiya Vs. State of Gujarat", [(2005) 3 SCC 636 in which it is held that if the wife is not found to be a wife in the eye of law, then she could not get any maintenance from her husband.
Apex Court in the case of Chaturbhuj Vs. Sita Bai [(2008) 1 SCC (Crl.) 356] in a proceeding under Section 125 of Cr.P.C., the burden in the first place is on the wife to show the means of her husband are sufficient. Therefore, the burden is on the petitioner wife to establish the financial condition of the respondent- husband for the Court to come to the just conclusion while determining the question as to the quantum of maintenance.
Chaturbhuj v. Sita Bai. reported in AIR 2008 SUPREME COURT 530 "5. The object of the maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves and who have a moral claim to support. The phrase "unable to maintain herself" in the instant case would mean that means available to the deserted wife while she was living with her husband and would not take within itself the efforts made by the wife after desertion to survive somehow. Section 125 Cr.P.C. is a measure of social justice and is specifically enacted to protect women and children and as noted by this Court in Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Ors. (AIR 1978 9 SCC 1807) falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India, 1950 (in short 'the Constitution'). It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya v. State of Gujarat and Ors.(2005 (2) Supreme 503)."
Chaturbhuj v. Sita Bai. reported in AIR 2008 SUPREME COURT 530 Under the law the burden is placed in the first place upon the wife to show that the means of her husband are sufficient. In the instant case there is no dispute that the appellant has the requisite means. ………..But there is an inseparable condition which has also to be satisfied that the wife was unable to maintain herself. These two conditions are in addition to the requirement that the husband must have neglected or refused to maintain his wife. It is has to be established that the wife was unable to maintain herself. The appellant has placed material to show that the respondent-wife was earning some income. That is not sufficient to rule out application of Section 125 Cr.P.C. It has to be established that with the amount she earned the respondent-wife was able to maintain herself. ……….. In an illustrative case where wife was surviving by begging, would not amount to her ability to maintain herself. It can also be not said that the wife has been capable of earning but she was not making an effort to earn. Whether the deserted wife was unable to maintain herself, has to be decided on the basis of the material placed on record. Where the personal income of the wife is insufficient she can claim maintenance under Section 125 Cr.P.C. The test is whether the wife is in a position to maintain herself in the way she was used to in the place of her husband. In Bhagwan v. Kamla Devi (AIR 1975 SC 83) it was observed that the wife should be in a position to maintain standard of living which is neither luxurious nor penurious but what is consistent with status of a family. The expression "unable to maintain herself" does not mean that the wife must be absolutely destitute before she can apply for maintenance under Section 125 Cr.P.C.
In Dwarika Prasad Satpathy v. Bidyut Prava Dixit and Anr. (AIR 1999 SC 3348) it was held that the validity of the marriage for the purpose of summary proceedings under Section 125 of the Code is to be determined on the basis of the evidence brought on record by the parties. The standard of proof of marriage in such proceedings is not as strict as is required in a trial of offence under Section 494 of Indian Penal Code, 1860 (in short the 'IPC'). If the claimant in proceedings under Section 125 succeeds in showing that she and the respondent have lived together as husband and wife, the Court has to presume that they are legally wedded spouses, and in such a situation one who denies the marital status can rebut the presumption. Once it is admitted that the marriage procedure was followed then it is not necessary to further probe as to whether the said procedure was complete as per the Hindu rites, in the proceedings under Section 125 of the Code. It is to be noted that when the respondent does not dispute the paternity of the child and accepts the fact that marriage ceremony was performed though not legally perfect, it would hardly lie in his mouth to contend in proceedings under Section 125 of the Code that there was no valid marriage as essential rites were not performed at the time of said marriage. The provision under Section 125 cannot be utilized for defeating the rights conferred by the legislature on the destitute women, children or parents who are victims of social environment. The provision is a measure of social justice and as noted above specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution. …….. The sections of statutes calling for construction by courts are not petrified print but vibrant words with social functions to fulfill. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed it is possible to be selective in picking out that interpretation out of two alternatives which advances the cause-the cause of the derelicts. (See Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Ors. (AIR 1978 SC 1807).
In Smt. Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and Anr. (AIR 1988 SC 644), it was held that expression 'wife' used in Section 125 of the Code should be interpreted to mean only a legally wedded wife. The word 'wife' is not defined in the Code except indicating in the Explanation to Section 125 its inclusive character so as to cover a divorcee. A woman cannot be a divorcee unless there was a marriage in the eye of law preceding that status. The expression must therefore be given the meaning in which it is understood in law applicable to the parties. The marriage of a woman in accordance with the Hindu rites with a man having a living spouse is a complete nullity in the eye of law and she is therefore not entitled to the benefit of Section 125 of the Code or the Hindu Marriage Act, 1955 (in short the 'Marriage Act'). Marriage with person having living spouse is null and void and not voidable. However, the attempt to exclude altogether the personal law applicable to the parties from consideration is improper. Section 125 of the Code has been enacted in the interest of a wife and one who intends to take benefit under sub- section (1)(a) has to establish the necessary condition, namely, that she is the wife of the person concerned. The issue can be decided only by a reference to the law applicable to the parties. It is only where an applicant establishes such status or relationship with reference to the personal law that an application for maintenance can be maintained. Once the right under the provision in Section 125 of the Code is established by proof of necessary conditions mentioned therein, it cannot be defeated by further reference to the personal law. The issue whether the Section is attracted or not cannot be answered except by reference to the appropriate law governing the parties.
In Dwarika Prasad Satpathy v. Bidyut Prava Dixit and Anr. (AIR 1999 SC 3348) Their lordships held that, the order passed in an application under Section 125 Cr.P.C. does not finally determine the rights and obligations of the parties and the said section is enacted with a view to provide summary remedy for providing maintenance to a wife, children and parents. The provision under Section 125 is not to be utilized for defeating the rights conferred by the Legislature to the destitute women, children or parents who are victims of social environment.
The provisions of Section 125 CrPC are meant for avoiding vagrancy and penury of the dependent spouse and child who have been neglected to be maintained by the earning is responsible spouse. The petitioners are unable to maintain themselves by earning any income. It is in evidence that the respondent-husband has considerable properties including wet lands from which he is earning substantial income.
Badri Prasad v. Dy. Director of Consolidation & Ors. [(1978) 3 SCC 527], the Supreme Court held that a strong presumption arises in favour of wedlock where the partners have lived together for a long spell as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of legal origin.
Tulsa and Ors. v. Durghatiya & Ors. [2008 (4) SCC 520], this Court held that where the partners lived together for a long spell as husband and wife, a presumption would arise in favour of a valid wedlock.
Vimala (K) v. Veeraswamy (K) [(1991) 2 SCC 375], a three-Judge Bench of this Court held that Section 125 of the Code of 1973 is meant to achieve a social purpose and the object is to prevent vagrancy and destitution. Explaining the meaning of the word `wife' the Court held: "...The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. When an attempt is made by the husband to negative the claim of the neglected wife depicting her as a kept-mistress on the specious plea that he was already married, the court would insist on strict proof of the earlier marriage. The term `wife' in Section 125 of the Code of Criminal Procedure, includes a woman who has been divorced by a husband or who has obtained a divorce from her husband and has not remarried. The woman not having the legal status of a wife is thus brought within the inclusive definition of the term `wife' consistent with the objective... "
Constitution Bench of this Court in Mohammad Ahmed Khan v. Shah Bano Begum & Ors. reported in [(1985) 2 SCC 556], considering the provision of Section 125 of the 1973 Code, opined that the said provision is truly secular in character and is different from the personal law of the parties. The Court further held that such provisions are essentially of a prophylactic character and cut across the barriers of religion. The Court further held that the liability imposed by Section 125 to maintain close relatives, who are indigent, is founded upon the individual's obligation to the society to prevent vagrancy and destitution.
Gayathri vs Ramesh ILR 1993 KAR 1857, 1993 (2) KarLJ 447 (DB) . When Section 126(2) of the Code prescribes the procedure to be followed regarding recording of evidence in a proceeding initiated under Section 125 thereof and when Section 10(2) of the Act enjoins that the provisions of the Code shall apply to the proceedings under Chapter IX of the Code before the Family Court, it is clear that though the proceeding is initiated before the Family Court and not a Magistrate, in a proceeding under Section 125 of the Code, the Family Court is bound to follow the procedure prescribed in Section 126 of the Code, so far as recording of evidence is concerned. ……. In a proceeding under Section 125 of the Code the evidence shall be recorded in the manner prescribed for summons case. There is no provision in the Code enabling a Magistrate to take affidavit evidence in a summons case. Therefore the procedure of taking an affidavit in a summons case is completely unknown to the provisions of the Code and evidence has to be recorded as prescribed by Section 274 of the Code which relates to record in summons cases and inquiries. If the party against whom the order for payment of maintenance is proposed to be made is absent, the Court cannot straight-away place the said person ex-parte and proceed as in a civil matter. It must be come to a conclusion that, that person is wilfully avoiding service or was wilfully neglecting to attend the Court and then only he could proceed and determine the case ex-parte as per proviso to Sub-section (2) of Section 126 of the Code. …….
After an order is passed directing to pay maintenance, the party in whose favour such an order has been passed has got two options to work out to recover the arrears from the other. He can choose to approach the court under Section 125(3) Cr.P.C. requesting the court to punish the defaulter by imposing appropriate imprisonment. On the other hand, he can also approach the court under Section 128 of Cr.P.C. seeking to recover the amount due under the maintenance order. A comparison of Sections 125(3) and 128 of Cr.P.C. would keep things beyond any pale of doubt that in so far as the proceeding under Section 125(3) is concerned, the statuete has prescribed a period of limitation of one year, whereas in respect of a proceeding under Section 128 of Cr.P.C., there is no limitation provided at all. This is because, while exercising the power under Section 125(3) Cr.P.C. the action being essentially a criminal in nature, resulting in punishment of imprisonment, the legislature has perhaps, thought it fit to provide such a period of limitation of one year to file a petition. Since, while enforcing an order under Section 128 of Cr.P.C. for recovery of the amount, there is no question of straight away imposing such a punishment of imprisonment and that may be the reason for the legislature not to provide for such a period of limitation. Therefore, to put it in nutshell, for initiating a proceeding for enforcing an order by invoking Section 128 of Cr.P.C., absolutely, I find no provision providing for limitation as it is provided in respect of proceedings under Section 125(3) of Cr.P.C. In the case on hand, the petition was filed under Section 128 of Cr.P.C. Though it was filed beyond one year, in my considered opinion, the lower court was right in entertaining the same as the same is not barred by any limitation.
THE HON'BLE MR.JUSTICE JAWAD RAHIM Ramappa S/O. Hanamantappa ... vs Lalita W/O. Ramappa Kumkumgar on 3 October, 2012 The mode of enforcement has to be ascertained from the language of Section 128 and 125(3) of Cr.P.C which provides, if any person fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment of fine. The only contention stipulated in the proviso is that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the court to levy such amount within a period of one year from the date on which it became due.
MANOJ YADAV VS PUSPHA @ KIRAN YADAV  13 (ADDL.) SCR 894 No doubt the object of Section 125 Cr.P.C. is to orevent vagrancy, but vagrancy is relative word. For many women awarding them Rupees 1500/- per month, or even Rs. 3,000/- per month may amount to keeping them in a condition of vagrancy.
THE HON'BLE MR.JUSTICE K.S. Radhakrishnan, THE HON'BLE MR.JUSTICE Dipak Misra in the case of Nagendrappa Natikar vs Neelamma Decided on 15 March, 2013 Section 125 Cr.P.C. is a piece of social legislation which provides for a summary and speedy relief by way of maintenance to a wife who is unable to maintain herself and her children. Section 125 is not intended to provide for a full and final determination of the status and personal rights of parties, which is in the nature of a civil proceeding, though are governed by the provisions of the Cr.P.C. and the order made under Section 125 Cr.P.C. is tentative and is subject to final determination of the rights in a civil court.
THE HON'BLE MR.JUSTICE C.R. KUMARASWAMY in the case of Harish Kumar N vs Bhavya H L Decided on 14 December, 2012 To grant maintenance amount there should be proof of neglect or refusal by the husband. In the instant case, the wife has lodged a complaint against the husband and she has suffered mental and physical torture. Therefore, she was constrained to leave separately from her husband. Husband has also not filed any petition for restitution of conjugal rights. Therefore, it is difficult to accept the contention of the learned counsel for the revision petitioner that there is no proof of neglect or refusal to maintain wife by the respondent-husband.
In Vimalben Ajitbhai Patel v. Vatslaben Ashokbhai Patel and others (2008) 4 SCC 649, Maintenance of a married wife, during subsistence of marriage, is on the husband. It is a personal obligation. The obligation to maintain a daughter-in-law arises only when the husband has died. Such an obligation can also be met from the properties of which the husband is a co-sharer and not otherwise. For invoking the said provision, the husband must have a share in the property. The property in the name of the mother-in-law can neither be a subject matter of attachment nor during the life time of the husband, his personal liability to maintain his wife can be directed to be enforced against such property.
Smt. Narinder Pal Kaur Chawla vs Shri Manjeet Singh Chawla AIR 2008 Delhi 7 The measures for maintenance by themselves are secular and social in character. Those aim at avoiding immorality and destitution. Maintenance for juridical purposes has its own pragmatics having relation to the need and necessity to make provisions for securing reasonable bioeconomic as well as biocultural requirements for persons, such as shelter, food, garment and health. In the tenets of Hindu Shastric law, two principles subserve this need to provide reliefs of maintenance and those emanated firstly from social ethics and secondly because of personal economics. The persons related to each other and dependent as such, could look for such relief by reason of law both on the moral and secular grounds, Subject to conditions, it was a personal obligation and where there was estate. The rights in maintenance could be worked against the estate, nay, was a charge upon. It the moral of pious obligations mostly arose as personal liabilities, while those against property could be classed as economic of secular ones.
Kerala High Court in Saraswati v. Madhavan AIR 1961 Ker 297: (1961) 2 Cri LJ 640. In the said decision, P. Govinda Menon, J. has observed in Para 11 as follows: Again in this case the petitioner for whom maintenance is claimed, is aged 22 years. She Is a fairly well educated lady, healthy and is not stated to be suffering from any illness. Such a person should be presumed capable of maintaining herself until the contrary is proved. The burden of proving that she is not capable of maintaining herself is on her and if she fails to adduce sufficient proof the Magistrate would be perfectly justified in disallowing her claim for maintenance.
Abdulmunaf vs Salima 1979 CriLJ 172 (Kar) When the object of the two provisions viz., in the two Codes is the same, I am of opinion that the attachment to the word 'unable' to the word 'wife' in Section 125(1)(a) of-the new Code does not make any difference. It only means that the speedy remedy is avail- able to a wife who is unable to maintain herself so that there should be prevention of vagrancy. What is meant by vagrancy is to be gathered by taking into consideration the ordinary dictionary meaning. The relevant meaning as gathered from the Shorter Oxford English Dictionary is 'Idle wandering with no settled habitational occupation or obvious means of support'.
Bhagwan Dutt's case (1975 Cri LJ 40 (SC)). their Lordships of the Supreme Court have, in para 18 (of SCWR): (Para 19 of Cri LJ) laid down as follows: The object of those provisions being to prevent vagrancy and destitution, the Magistrate has to find out as to what is required by the wife to maintain a standard of living which is neither luxurious nor penurious, but is modestly consistent with the status of the family. The needs and requirements of the wife for such moderate living can be fairly determined, only if her separate income also is taken into account together with the earnings of the husband and his commitments.
Smt. Prabhavathi vs K. Somashankar AIR 2002 Kant 431, ILR 2002 KAR 3505 The degree of proof is not merely one of preponderance of probabilities, but proof beyond reasonable doubt. In the circumstances, we are of the clear view that the husband had failed not simply but miserably in proving desertion, particularly in the light of the maintenance order and the confirmation order in the criminal matter. Deliberate desertion on the part of the wife could not have been inferred in the circumstances of the case. In fact it cannot even be said that the wife without any reason had remained living separately and on the other hand circumstances indicated that she had sufficient justification for her living separately. When such is the situation, the inference of desertion which requires deliberate conscious living apart can never have been inferred by the trial Court.
Zubedabi v. Abdul Khader, (1978 (2) Kant LJ 143) …..Petitioner must positively aver in her petition that she is unable to maintain herself in addition to the facts that her husband has sufficient means to maintain her and that he has neglected to maintain her. On going through the petition carefully, I find that though Smt. Zubedabi has averred in the petition that her husband has means and that he has neglected to maintain her, she has nowhere whispered that she is unable to maintain herself. That being so, her husband in his statement of objections had no occasion to meet that point.
AN APPLICATION BY A FATHER CLAIMING MAINTENANCE FROM HIS MARRIED DAUGHTER IS PERFECTLY MAINTAINABLE.
Dr. (Mrs.) Vijaya Manohar Arbat vs Kashi Rao Rajaram Sawai And Anr 1987 AIR 1100, 1987 SCR (2) 331 The object of section 125 Criminal Procedure Code is to provide a summary remedy to save dependents from destitu- tion and vagrancy and thus to serve a social purpose. There can be no doubt that it is the moral obligation of a son or a daughter to maintain his or her parents. It is not desirable that even though a son or a daughter has sufficient means, his or her parents would starve. Apart from any law, the Indian Society casts a duty on the children of a person to maintain their parents if they are not in a position to maintain themselves. It is also their duty to look after their parents when they become old and infirm. …… A daughter after her marriage does not cease to be a daughter of the father or mother. If it is not so, parents having no son but only daughters and unable to maintain themselves, would go destitute, if the daughters even though they have sufficient means refuse to maintain their parents.
UNDER WHAT CIRCUMSTANCES COURT CAN REFUSE MAINTENANCE UNDER SECTION 125 CRPC
THE HONOURABLE MR. JUSTICE K.N. PHANEENDRA in the case of Smt. Shantavva ... vs Hanumantappa Decided on 27 March, 2014 CRIMINAL REVISION PETITION NO. 2298/2013 The question is under what circumstances the Court can refuse maintenance under Section 125 of Cr.P.C. If the wife herself has deserted the husband and if the wife is living in adultery or if the wife is married for second time and she is living separately without any reasonable cause, under those circumstances only the Court can refuse to grant maintenance. Mere delay, in my opinion, cannot be a ground for refusing the maintenance. The very object of Section 125 of Cr.P.C. is to avoid vagrancy of the woman and also to see that the rights of woman are respected. The provisions under Section 125 of Cr.P.C. which gives effect to the natural duty of a man to maintain his wife. Section 125 of Cr.P.C. was applicable to all irrespective of their religion. It was, therefore applicable to a person, who has neglected and refused to maintain his wife. The object of said section is to avoid vagrancy by providing that the Court depending on the facts of the case grant some relief to the parties to see that a wife and children are maintained. It nowhere describes that the petition has to be dismissed if it is filed on the basis of unreasonable delay. Even if it is accepted that the petition is dismissed, the respondent has to show before this Court that particularly under Section 125 of Cr.P.C. petition is not maintainable. If maintenance petition is allowed and monthly maintenance is awarded to wife, then again second maintenance petition for claiming maintenance unless it is for alteration or modification of the earlier order passed by Court is not maintainable. Looking to the above said facts and circumstances, particularly, when the petition before trial Court is uncontested and even though opportunity was given to respondent to engage counsel, who actually engaged a counsel but, he has not filed objections nor cross- examined the witnesses. Hence, it cannot be said that the trial Court has committed any error in allowing the petition. Therefore, in my opinion, the Sessions Court has committed a serious error in allowing the revision petition and dismissing the maintenance petition filed by wife as well as minor son.