Although the Criminal Procedure Code is a procedural enactment, it also confers substantive rights, the right of maintenance being one of the most important of such rights. This Chapter gives effect to the fundamental and moral duty of every man to maintain his wife, children and parents, when they are unable to maintain themselves.
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This Chapter has thus been enacted with the object of enabling discarded wives, helpless and deserted children and destitute parents to secure a much-needed relief. Chapter IX is, therefore, not a punitive measure; it is preventive, rather than remedial. The main idea behind this salutary measure is that no wife, child or parent should be left helpless, so that he or she may be tempted to commit crime or may tempt others to do so.
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Sir James Stephen has observed that this Chapter is “a mode of preventing vagrancy, or at least of preventing its consequences”.
The object of maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy by compelling those who can do so, to support those who are unable to support themselves and who have a moral claim to support.
S. 125, which is the pivotal section of this Chapter, provides that if any person having sufficient means neglects or refuses to maintain—
(a) His wife, unable to maintain herself, or
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(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 pass an order against such a person, ordering him to make a monthly allowance for the maintenance of such child, father or mother, as the case may be, at such monthly rate as such Magistrate thinks fit. In the case of a minor female child who is married, if the Magistrate is satisfied that the husband of such a minor female is not possessed of sufficient means, an order can be made against the father of the child to make such allowance until she attains the age of majority.
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The Amendment Act, 2001, has also made a salutary provision for payment of interim maintenance and costs, it is now provided that, during the pendency of maintenance proceedings under S. 125 of the code, the Magistrate may order such person to pay a monthly sum for interim maintenance and for expenses of such proceedings, as the Magistrate may consider reasonable. The proceedings for interim maintenance and for expenses are to be disposed of, as far as possible, within sixty days from the date of notice on the person liable to pay maintenance.
It may also be noted that a reference to a wife in clause (a) above, also covers a woman who is divorced from her husband, provided that she has not re-married.
The Orissa High Court has clarified that the expression “having sufficient means” does not signify only means like definite employment, but also includes the capacity to earn money. (Behera v. Behera, 1983 Cr. L.J. 125)
S. 125 confers a statutory right and is, therefore, not affected by personal law. In other words, this right is independent of personal law, and it is not permissible to claim protection of Mohammedan Law in derogation of the statutory provisions of the Criminal Procedure Code.
Thus, a Shia wife under a Mutta marriage would be entitled to maintenance under S. 125, although she may not enjoy the right of maintenance under Mohammedan Law. In such cases, the personal law of the parties would be relevant only for deciding the validity of the marriage.
The Kerala High Court has observed that S. 125 of the Code does not make any distinction between persons belonging to different religions or castes. In the present case, a Muslim husband who had married for a second time (and then divorced his first wife) was held liable to pay maintenance to the first wife. (Habeebulla v. Shakeela, 1984 Cr. L.J. 1062)
The Andhra Pradesh High Court has held that in the case of a Hindu husband and wife, the conversion of the husband to Islam does not dissolve the marriage, and the husband is, therefore, not relieved of his obligation to maintain his legally wedded wife and minor children born before his conversion. (M.A. Rahman v. P. Ramamma and Others, 1980 Cr. L.J. NOC 3)
Likewise, there is no text of Hindu Law under which an illegitimate son of a Hindu by a woman who is not a Hindu can claim maintenance; however, such a child can claim maintenance from his putative father under this section.
The Supreme Court has taken the view that S. 125 is applicable to all persons, irrespective of their religion. Therefore, it applies to Muslim women also. (See Shah Bano’s case, discussed later.) Moreover, the Muslim Women’s (Protection of Rights on Divorce) Act, 1986, also provides other remedies for Muslim women who are divorced.
Failure to maintain one’s wife and children is not made a punishable offence by the Code, and hence, the person proceeded against is not an accused. So also, an application under S. 125 is not a complaint within the meaning of S. 2(d) of the Code.
The Madras High Court has held that S. 125 is not violative of Art. 14 of the Constitution, as there is a reasonable classification, inasmuch as the section applies to the class of neglected wives, children and parents. (T. Goundan,—A.I.R. 1952 Mad. 529)
The Delhi High Court has held that an application for maintenance by a “wife” whose marriage is annulled under S. 12 of the Hindu Marriage Act is not maintainable. (Krishna Gopal v. Usha Rani, 1982 Cr. L.J. 901)