Apart from this remedy a wife or child has another remedy by way of suit in a civil court, in which a decree may be obtained for an amount commensurate with the status or means of the party liable.
Section 125, Cr.P.C. lays down that if any person having sufficient means neglects or refuses to maintain—(a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, (c) 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, or (d) 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 wife or such child, father or mother, at a monthly rate as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct.
Any such allowance for the maintenance or interim maintenance and expenses for proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.
‘Minor’, for the purposes of the Code, means a person who, under the provisions of the Indian Majority Act, 1875, is deemed not to have attained his majority ‘Wife’ includes a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried.
In case of default of payment of any allowance without sufficient cause, the amount may be recoverable by the issue of a warrant for every breach of the order in the same manner as fine is recovered. The Magistrate may, after the execution of the warrant, sentence the defaulter to a term of imprisonment not exceeding one month, or until payment if sooner made.
If a person offers to maintain his wife on condition of her living with him and she refuses to live with him, the Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing, if the husband has contracted a marriage with another woman or keeps a mistress, it shall be considered to be a just ground for his wife’s refusal to live with him. The provision of law, subject to the Muslim Women (Protection of Rights on Divorce) Act, 1986, discussed in answer to the next subsequent question, applies to the Muslims also who are not exempt from its operation.
Deliberate false allegations of unchastely levelled against the wife constitute ‘just ground’ for her refusing to go back and live with her husband and will amount to legal cruelty sufficient to entitle her to live separate from her husband and yet to claim maintenance.
It will appear from the above that the first requisite for an order of maintenance is that the husband should have neglected or refused to maintain his wife, his legitimate or illegitimate minor child, or parents. The second is that the complainant must be the wife of the defendant. A concubine is not entitled to maintenance under the provisions of the section. There must be the existence of a conjugal relation. The third requisite is that the child must be born though it might be legitimate or illegitimate, but an adopted child does not fall within the purview of this section. The basis of an application for the maintenance of a child is, therefore, the paternity of the child irrespective of its legitimacy or illegitimacy. But the child can claim maintenance from its father only if he has got sufficient means and the child is unable to maintain itself.
When not entitled to maintenance:
The wife is not entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, from her husband in the flowing three cases—(i) if she is living in adultery, or (ii) if she refuses to live with her husband without any sufficient cause, or (iii) if they are living separately by mutual consent. These are the three grounds which are open to the husband in a claim for maintenance.
On proof of any of the above grounds the Magistrate shall cancel the order. [Section 125 (4 & 5)1]
To disqualify the petitioner from her right to claim maintenance under Section 125, Cr.P.C. it should be proved that she has been ‘living in adultery’ which means more than occasional lapses from virtue.
The phrase means something quite different from living an unchaste life, the principle being that a husband is absolved from the obligation to maintain his wife only when his wife has de facto protector with whom she lives and by whom she is being maintained as if she were his wife.
It has been held that the fact that the petitioner has been living with her father-in-law was by itself no evidence of her living in a state of immorality. That had to be proved by definite evidence. Mere value allegation that she was leading immoral life with her father-in-law was not sufficient proof.
[Pachlammal v. Perianal, 1964 Cr.L.J. 205 Mad).
While under the old Criminal Procedure Code, wife was defined as a married woman whose marriage was subsisting and did not include a divorced woman, the new Code, intended to protect all distressed women, allowed the woman divorced before or after the enforcement of the new Code to initiate proceedings under Section 125 for maintenance, Musti Sahida Begum v. Md. Mofuzul Haque, 1986 Cri.L.J. 103 Guwahati],
The amendment of Criminal Procedure Code, 1973 has to some extent overruled the personal law so far as proceedings for maintenance under Section 125 are concerned. The Mohammedan law allowing maintenance to divorced wife during the period of iddat, i.e., three months from divorce, did not bar grant of relief under Section 125, Criminal Procedure Code for the period beyond Iddat and until her remarriage. Section 125 applied to all irrespective of their personal law and religion. To discriminate would be unconstitutional. [1984 Cri.L.J. 1062: A.I.R. 1981 S.C. 1243 and A.I.R. 1970 S.C. 446 relied on].
The personal law of a Muslim considers the distress of a divorced woman only for three months, whereas the provisions of Section 125, Cr.P.C. is meant to protect the distress of all wives including divorced women irrespective of religion or castes for their future life until their re-marriage.
Discrimination is unconstitutional. It is for this reason that the amendment of the Criminal Procedure Code, 1973, is held to have overruled the personal law so far as the proceedings for maintenance under Section 125 are concerned. Mustt. Saluda Begum v. Md. Mofuzul Haque, 1986 Cri.L.J. 103],
The jurisdiction of a Magistrate under Chap. IX of the Code is not strictly a criminal jurisdiction. While passing an order under that chapter asking a person to pay maintenance to his wife, child or parent, as the case may be, the Magistrate is not imposing any punishment on such person for a crime committed by him.
Chapter IX of the Code contains a summary remedy for securing some reasonable sum by way of maintenance, subject to a decree, if any, which may be made in a civil court in a given case, provided the personal law applicable to the person concerned authorizes the enforcement of any such right to maintenance.
The Code, however, provides a quick remedy to protect the applicant against starvation and to tide over immediate difficulties. Chapter IX of the Code does not in reality create any serious new obligation unknown to the Indian social life.
In Bhagwan Dutt v. Smt. Kamla Devi, A.I.R. 1975 S.C. 83, at page 85, the Supreme Court explained the object of Sections 488, 489 and 490 of the Code of Criminal Procedure, 1898, which are replaced by the provisions in Chapter IX of the Code thus :
“Sections 488, 489 and 490 constitute one family. They have been grouped together in Chapter XXXVI of the Code of 1898 under the caption ‘Of the maintenance of wives and children.’ This chapter, in the words of Sir James Fitzstephen provides a mode of preventing vagrancy, or at least of preventing its consequenes.
These provisions are intended to fulfill a social purpose. Their object is to compel a man to perform the moral obligation which he owes to society in respect of his wife and children. By providing a simple, speedy but limited relief, they seek to ensure that the neglected wife and children are not left beggared and destitute on the scrap-heap of society and thereby driven to a life of vagrancy, immorality and crime for their subsistence.
Thus, Section 488 is not intended to provide for a full and final determination of the status and personal rights of the parties. The jurisdiction conferred by the section on the Magistrate is more in the nature of a preventing rather than a remedial jurisdiction; it is certainly not punitive.
As pointed out in Thompson’s case 6 N.W.P. 205 the scope of Chapter XXXVI is limited and the Magistrate cannot except as there under provided, usurp the jurisdiction is matrimonial disputes possessed by the civil courts. Sub-section (2) of Section 489 expressly makes orders passed under Chapter XXXVI of the Code subject to any final adjudication that may be made by a civil court between the parties regarding their status and civil rights.”
Having regard to the nature of the jurisdiction exercised by a Magistrate under Section 125 of the Code, the said provision should be interpreted as conferring power by necessary implication on the Magistrate to pass an order directing a person against whom an application is made under it to pay a reasonable sum by way of interim maintenance subject to the other conditions referred to pending final disposal of the application.
In taking this view the Supreme Court also took note of the provisions of Section 7 (2) (a) of the Family Courts Act, 1984 (Act No. 66 of 1984) passed by the Parliament proposing to transfer the jurisdiction exercisable by Magistrates under Section 125 of the Code to the Family Courts constituted under the said Act. [Smt. Savitri v. Govind Singh Rawat, 1986 Cri.L.J. 41 S.C.].