The Supreme Court has held that every divorcee, who is otherwise eligible, is entitled to the benefit of maintenance allowance, and the dissolution of the marriage makes no difference to this right under S. 125 of the Code. (Bai Tahira v. Ali Hussain Fidaali Chothia, (1979) 2 S.C.C. 316)
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In Bai Tahira’s case (above), the Supreme Court had an occasion to consider the applicability, scope and interpretation of S. 125 of the Code, which was referred to by Justice Krishna Iyer (in his judgment) as “a benign provision enacted to ameliorate the economic condition of neglected wives and discarded divorcees”. In this case, the Respondent, a Muslim husband, had divorced his wife, and in settlement of their marital disputes, transferred a flat to her and also paid to her “mehar” money of Rs. 5,000 and “iddat” money of Rs. 180.
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In turn, the wife made a declaration that she had no further claims on her ex-husband or his properties. Subsequently, when she found herself in financial difficulties, the wife moved the Magistrate under S. 125 of the Code, and, the matter went in appeal right upto the Supreme Court. It was ultimately held that any payment under customary or personal law would disentitle a wife to claim maintenance only if such payment is adequate enough for her continuous maintenance.
In the facts and circumstances of the case, it was held that a one-time payment of Rs. 5,000 would be inadequate (especially in a city like Bombay), and that the Trial Court had rightly decreed her a monthly allowance for herself and her son. In the course of the judgment, Justice Krishna Iyer, with his usual wit, remarked that the interest on Rs. 5,000 would not be enough to keep the woman’s body and soul together even for a day, unless she was ready to sell her body and give up her soul.
There is a conflict of judicial opinion on whether maintenance would include the cost of education. Some cases have held that, in criminal law, maintenance does not include education. However, the better view seems to be that it does include the cost of education.
As observed in one case, S. 125 covers the education of children, that is the minimum amount of education which the conventions of the country call for. The Court observed, in that case, that maintenance should be on such a scale as enables a frugal and thrifty mother to save sufficiently for a simple and necessary education for her child. (Marry Shwe Bo. v. Ma Thein Nya,-40 Cr. LJ. 10)
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The Madras High Court has observed that where a wife is admittedly an invalid, and requires medical attention, the expenses of a reasonable amount of medical attention would be covered under S. 125. (Ramanathan, A.I.R. 1943 Mad. 342)
The Supreme Court has held that an order of maintenance passed by the Magistrate under S. 125 of the Code is not affected by any subsequent compromise or reunion between the husband and the wife. Such an order would continue to operate, until it is vacated by the Court according to the provisions of the Code. (Bhupinder Singh v. Daljit Kaur, (1979) 1 S.C.C. 352)
In one case, an application for maintenance by a 15-year old Mohammedan wife was resisted by the husband on the ground that she was not represented by a guardian. Rejecting the contention, the Andhra Pradesh High Court held that if a Mohammedan woman could validly contract a marriage at 15, she was equally competent to apply for maintenance under S. 125 of the Code. (Gulam Mustafa v. Tahara Begum, 1980 Cri. L.J. 124)
Under S. 125, an order of maintenance can be passed against the father, but not against the father-in-law. Thus, a Magistrate cannot order the father-in-law to pay maintenance to his daughter-in-law. (Miran, — 1 Cr. L.J. 110)
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A Magistrate would not be justified in refusing to order maintenance to be paid to the wife on the ground that the husband is a man of slender means. In such cases, only a small sum will be ordered. It has even been held that even if the father is a professional beggar, that does not relieve him from his obligation to maintain his child. (Воgа Kundamma,—2 Weir. 616)
It has also been held that merely by becoming a Jain sadhu, a man is not excused from maintaining his wife. But, in such cases, if he can prove that, by reason of his vows, he is incapable of holding any property or earning any money, he cannot be said to have sufficient means to maintain his wife. (Muni Kantivijayaji,—33 Cr. L.J. 625)
To justify an order under S. 125, neglect or refusal to maintain must be proved before the Court. Moreover, neglect or refusal must be present neglect or refusal. Therefore, if a wife prays for an order to the effect that if, in future, her husband fails to maintain her, he should pay her a certain allowance, the Magistrate cannot pass an order under S. 125; in such a case, he should dismiss the application, as no present neglect or refusal is established. (Koppa Mudali,—2 Weir. 630)
So also, no order can be passed under this section unless the child is already born. There can be no order for the maintenance of a foetus when the woman is still pregnant. (Larlee,—3 N.W.P. 70)
Although S. 125 covers both legitimate and illegitimate children, the only basis being paternity of the child, an adopted child is not covered. Hence, a man is not liable under this section to pay maintenance to his adopted child. (Namu Nair, – 38 Cr. L.J. 602)
The Supreme Court has observed that S. 125 does not confer any absolute right on a neglected wife against her husband; nor does it impose any absolute liability on the husband to support his wife under all possible circumstances. The Section is permissive, and the use of word “may” indicates that the power conferred on the Magistrate is discretionary.
Needless to say, this discretion is to be exercised in a judicial manner, consistently with the language of the section, with due regard to all the relevant circumstances of the case. (Bhagwan Dutt,—1975 S.C.C. 563)
The Gauhati High Court has held that if the prayer for maintenance is for Rs. 100 only, the trial court cannot grant Rs. 200 per month on the ground of soaring price index. (Nilima Barva v. Debo Konwar, 1984 Cr. L.J. NOC 30)
So also, a prospective order, providing for increase being made in the amount awarded as the child grows older, is not justified by law. Under S. 125, a Magistrate cannot pass an order of maintenance at a progressively increasing rate. Of course, it is open to the Magistrate to alter the monthly rate of allowance (under S. 127) as the child grows older.
Moreover, an order under S. 125 must not be conditional, and must not have any reference to future circumstances. Thus, an order directing the husband to take away his wife with him and maintain her, and in the event of his failing to do so, or turning her out, to pay a fixed sum for her maintenance is a conditional order, and hence unjustified.
The Delhi High Court had held that a Magistrate should award maintenance, not from the date of the order, but from the date of the application. (Makhdum AH v. Nargis Bano, 1983 Cr. L.J. 111) However, the Amendment Act, 20СЛ, has now clarified that such allowance is to be paid from the date of the Order. However, liberty is also expressly given to the Magistrate to order such payment from the date of the Application.
The Delhi High Court has held in Prema Jain v. Sudhir Jain, (1980) Cr. L.J. 80), that if an application for maintenance is dismissed for default of appearance, the dismissal order is administrative, rather than judicial, in nature. The Magistrate would, therefore, have the power to set aside the same and restore the application.
S. 125 corresponds to S. 488 of the 1898 Code. The Allahabad High Court has held that an order passed by an Executive Magistrate under S. 488 of the old Code has to be executed by a Judicial Magistrate as an order under S. 125 of the new Code. An Executive Magistrate would have no jurisdiction to execute it under the new Code. (Chhedi Lai v. State of U.P. 1980 Cr. L.J. NOC 17)
Whether award of maintenance should be in cash only The Orissa High Court has held that maintenance can only be a monthly cash allowance, and not maintenance in grain or any other form. Even if the parties themselves enter into a compromise under which the husband has agreed to supply a fixed quantity of paddy to the wife every year, the Court must first convert the agreed annual paddy maintenance into monthly cash maintenance, and then pass an order on such monthly cash allowance. (Annapura Devi, A.I.R. 1960 Orissa, 94)
Before the Amendment Act, 2001, S. 125 provided a ceiling of Rs. 500 per month. It was widely felt that this upper limit of Rs. 500 for a month was wholly inadequate in light of the rising rates of inflation, however justifiable it may have been when the Criminal Procedure Code was enacted.
Even the Law Commission of India, in its Report submitted in 1989, had strongly recommended that the monetary upper limit be removed altogether, or suitably revised. However, it was only in 2001 that the said monetary ceiling was deleted from S. 125.