Section 125 of the Code of Criminal Procedure reads as follows:
(1)
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, or
(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,
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(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 such monthly
rate, as such Magistrate thinks fit, and to pay the same to such person as the
Magistrate may from time to time direct.
Who are entitled ?
A person is bound to maintain his wife, children and aged parents, who are unable to maintain themselves. While ordering maintenance the Court has to consider the income and the status of the person who is liable to pay maintenance and also the income and status of the person claiming maintenance. Though a wife can file a suit for maintenance in Family Court, this Section is provided to get maintenance as early as possible.
The wife can refuse to live with her husband
if he lives with a mistress. No wife shall be entitled to receive maintenance
from her husband under this Section if she is living in adultery, or husband
and wife are living separately by mutual consent. The petitioner can file any
number of petitions under Section 125 Cr.P.C for enhancement of maintenance when the circumstances change. The Court after considering the
change of circumstances can enhance the maintenance accordingly.
Quantum of Maintenance
Right of Maintenance under Hindu Law is a substantive right and a continuing right and it is variable from time to time. The Family Court or the District Court may in satisfaction of change of circumstances modify, recind or enhance the maintenance allowance. On proof of change and circumstance, the family Court has jurisdiction under Section 127 Cr.P.C. to revise the earlier order passed under Section 125 of the Code. Uma Vs. Lalit Kumar Sharma (1999 (1) DMC 83). In Ekradeshwari Vs. Homeswar (AIR 1929 PC 128), the privy council held, that fixation of maintenance depends upon a number of factors and the same must be determined on the facts of a particular case. The said ruling was rendered prior to the enactment of Hindu Adoption and Maintenance Act 1956.
The Apex Court in Kulbhusan Vs. Rajkumari
(AIR 1971 SC 234) approved the said observation by the Privy Council under
Section 23(2) of the said Act. See also K.Sivakumar Vs. K.Sambasiva Rao (2001
(1) DMC 75) and G.C.Gosh Vs.Sushmita Gosh (2001 (1) DMC 469). The wife is
entitled to have the same status as her husband. She must have the necessary
medical facility, food, clothing etc.. While fixing the amount of maintenance,
the Court should also take into account considering the inflation and cost of
living and his obligation to support the minor child and his parents.
S.Jayanthi Vs.S.Jayaraman (1998(1) DMC 699).
There is no fixed Rule, while arriving at the
Quantum, in respect of permanent Alimony. It is only the independent income of
the payee which is to be considered. While granting relief of permanent
alimony, the court has to keep in view the following considerations:
i)
Husband's own income.
ii) Income of the Husband from other property;
iii) Income of the Applicant.
iv) Conduct of parties.
ii) Income of the Husband from other property;
iii) Income of the Applicant.
iv) Conduct of parties.
Ramlal Vs. Surender Kaur (1995 (1) (iv) L.J
204 (Punjab)
In Vanaja Vs. Gopa (1992 (1) DMC 347) the
High Court Madras has held that the fact that the wife has already got maintenance
under Section 125 Cr.P.C. is no bar to her getting alimony pendante lite under
Section 24 of the Hindu Marriage Act.
Enforcement
After ordering maintenance if the respondent husband fails or refuses to pay the maintenance without sufficient cause the magistrate can issue warrant for levying the amount due in the manner provided for levying fines and may also sentence such person for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made.
