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MAINTENANCE OF WIVES, CHILDREN AND PARENTS

Section 125: Cr.P.C. Order for maintenance of wives, children and parents

(1) If any person having sufficient means neglects or refuses to maintain,

(a) his wife, unable to maintain herself to,

(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 abnormally or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself of 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, 1[* * * * * ] as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:

Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.

2[Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct:

Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.]

Explanation.—For the purposes of this Chapter—-
(a) “minor” means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is deemed not to have attained his majority;

(b) “wife” includes a woman who has been divorced by or has obtained a divorce, from her husband and has not re-married.

3[(2) 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.]

(3) If any person so ordered falls 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 1[allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] remaining unpaid after the execution of the warrants to imprisonment for a term which may extend to one month or until payment if sooner made:
Provided 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:

Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any ground 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.

Explanation.—If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him.

(4) No wife shall be entitled to receive an 1[allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.

(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.

COMMENTS

1. Proceedings under section 125 — Objections to —- Legality and validity of marriage — Learned Single Judge while deciding criminal revision application directing validity of marriage to be decided by trial Court — Family Court holding marriage valid on circumstantial evidence —- Contention of appellant-husband that what learned Single Judge meant was that validity of marriage should have been decided strictly — Relying upon 1988(3) Bom.C.R. 666 further contended that such challenge cannot be gone into in summary proceeding under section 125 —- Held, there is no conflict between directions of learned Single Judge and the judgment in 1988(3) Bom.C.R. 666. As per directions of the learned Single Judge, decision of Family Court is based though not on strict evidence but on circumstantial basis and after considering totality of the factors. This is permissible under judgment of Apex Court in 2000(5) Bom.C.R.(S.C.) 731, where it was held that if claimant succeeds in showing that she and respondent have lived together as husband and wife Court can presume they are legally wedded spouses, and no strict proof in this behalf is required. Dnyanoba @ Dnyandeo Mahadeo Kamble v. Mukta Dnyanoba Kamble, 2002(5) Bom.C.R. 552(A). Yearly Bombay Cases Reporter Digest 2002.

2. Claim for maintenance of second Muslim wife — Opposed on ground that husband is willing to support her is house and that she had contracted marriage with him knowing that first wife is living hence she cannot take advantage of own wrong — If at all such ground is available it can be availed by first wife and not second wife — Estoppel — Whether applied —- Held, the very fact that husband is living with first wife is sufficient ground for her to claim separate residence and maintenance. Further this right in available to either wife whether first or the second one. This view has been approved by Division Bench of this Court in A.I.R. 1966 Bom.48(D.B.) and this Court has no reason to differ from the same. Shaikh Babbu s/o. Shaikh Suleman v. Rashida w/o. Shaikh Babbu, 2002 Bom.C.R. (Cri.) (N.B.) 279(B) : 2002 All. M.R. (Cri.) 856 : 2002(2) Mh.L.J. 495. Yearly Bombay Cases Reporter Digest 2002.

3. Divorced Muslim Women — Right of maintenance — Right with reference to provisions of Chapter IX of Cri.P.C. and Act of 1986 —- Application for execution of order for maintenance passed prior to commencement of Act of 1986 — Maintainability of — Held, any application for execution of an order for maintenance passed in favour of a divorced Muslim woman prior to the commencement of the 1986 Act would be maintainable and such order executable against her former husband, notwithstanding the provisions of the 1986 Act, as held by the Full Bench. Naseemunisa Begum Shaikh Yasin v. Shaikh Abdul Rehman Shaikh Gaffar, 2002(Cri. Supp.) Bom.C.R. (A.B.) 706(A) : 2002(2) Mh.L.J. 115. Yearly Bombay Cases Reporter Digest 2002.

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4. Divorced Muslim women —- Right of maintenance — Held, a neglected wife, can claim maintenance as per the provisions of section 125 of the Code of Criminal Procedure, but if she happens to be divorced during the pendency of such proceedings, then her right of maintenance will be limited till the period of Iddat expires, and for the post-Iddat period, she will have to proceed as per the Act of 1986. Naseemunisa Begum Shaikh Yasin v. Shaikh Abdul Rehman Shaikh Gaffar, 2002(Cri. Supp.) Bom.C.R. (A.B.)706(E) : 2002(2) Mh.L.J. 115. Yearly Bombay Cases Reporter Digest 2002.

5. Interpretation of statutes —- Constitutional validity — Of Muslim Women’s (Protection of Rights on Divorce) Act — Exclusion of remedy under Cri.P.C. — For muslim women —- Remedy under section 125 of Cri.P.C. excluded for muslim woman in view of sections 3 and 4 of the Muslim Women’s (Protection of Rights on Divorce) Act — Held, if remedy under section 3 is found to be less favourable than what is available to women of other religious under section 125 of Cri.P.C. it would be violative of Articles 14 and 15 of Constitution. But Legislature cannot intend to enact unconstitutional laws and courts have to place interpretation on the Act that can save the Act. Hence interpretation given by Apex Court, Shah Bano’s case by which it is held that Mata, maintenance and provision are distinct and cannot be said that it is one time payment and that too within period of ‘iddat’ has to holds good. Danial Latifi v. Union of India, 2002 Bom.C.R.(Cri.) (S.C.) 355(C). Yearly Bombay Cases Reporter Digest 2002.

6. Arrears of maintenance —- Effect on non-prosecution of application diligently — Application for arrears filed in 1994 but non-applicant not served inspite of process fee having been paid till 1997 and application dismissed — Held, that provisions for maintenance are meant for mitigating the sufferings of the destitute wife, provision of rules should be liberally interpreted so that purpose of the Act is served. Non filing of proof of illness of her father with when appellant was staying should not be taken as ground for dismissal of her application. Kalpana Omprakash Nightot v. Omprakash Bhauraoji Nighot, 2002 Bom.C.R. (Cri.) (N.B.) 441 : 2002(1) Bom.L.R. 709. Yearly Bombay Cases Reporter Digest 2002.

7. Working wife — Maintenance for – Held, where evidence shows earning of respondent wife is not sufficient to take care of herself payment of Rs. 400/- awarded to her cannot be said to be unreasonable or unjustified direction. Dnyanoba @ Dnyandeo Mahadeo Kamble v. Mukta Dnyanoba Kamble, 2002(5) Bom.C.R. 552(B). Yearly Bombay Cases Reporter Digest 2002.
8. Maintenance of children — Right of minor girl for maintenance after attaining majority till marriage — Held, on combined reading of section 125 of Cri.P.C. and section 20(3) of Hindu Adoptions and Maintenance Act, learned Single Judge of High Court accepted legal position that under section 125 of Cri.P.C. minor daughter is entitled to maintenance only till attaining majority, however declined to interfere order of Family Court under section 20(3) of Hindu Adoptions and Maintenance Act which gives right of maintenance of daughter till her marriage. This was done with a view to avoid multiplicity of proceedings. On facts and circumstances of case no interference with impugned judgment of High Court is called for. Jagdish Jugtawat v. Manju Lata, 2002(6) Bom.C.R.(S.C.)189. Yearly Bombay Cases Reporter Digest 2002.

9. Sections 125 to 127 — Divorced Muslim women — Right of maintenance —- Proceedings under sections 125 to 127 of Cri.P.C. pending before Magistrate —- Woman divorced either before commencement of 1986 Act, or after commencement of 1986 Act — Whether matter will be covered by section 7 read with section 5 of the 1986 Act — Held, if proceedings under sections 125 to 127 of Cri.P.C. are pending before a Magistrate and the woman is divorced either before the commencement of the 1986 Act, or after the commencement of the 1986 Act, the matter will be covered by section 7 read with section 5 of the 1986 Act. Naseemunisa Begum Shaikh Yasin v. Shaikh Abdul Rehman Shaikh Gaffar, 2002(Cri.Supp.) Bom.C.R.(A.B.) 706(C) : 2002(2) Mh.L.J. Yearly Bombay Cases Reporter Digest 2002.

10. Sections 125 to 127 —- Muslim woman — Right to maintenance — Whether restricted to iddat period — Held, section 3(1) and (2) of Muslim Women’s Protection Act provide for reasonable and fair maintenance that has to be paid within iddat period. Liability to pay maintenance within the iddat period is thus unconditional would mean “on or before”. If he fails to do so, wife has right to apply to Magistrate for orders under section 3(3). But Parliament has no where restricted it and reasonable provision to iddat period only. It would extend to whole life of divorcee or till she gets married second time. Danial Latifi v. Uunion of India, 2002 Bom.C.R.(Cri.) (S.C.) 355(A). Yearly Bombay Cases Reporter Digest 2002.

11. Sections 125 to 128 — Divorced Muslim women — Right of maintenance — Provisions of sections 125 to 128 of Criminal Procedure Code whether inconsistent with provisions of sections 3 and 4 of Act of 1986 — Held, provisions of sections 125 to 128 of Cri. P.C. are not inconsistent with provisions of sections 3 and 4 of the 1986 Act. Divorced Muslim woman can make an application for maintenance for the period of Iddat and for fair and reasonable provision for period beyond Iddat as per the provisions of section 3 of the 1986 Act and if the prior husband agrees, then such proceedings, can be taken under section 125 of the Code of Criminal Procedure. Naseemunisa Begum Shaikh Yasin v. Shaikh Abdul Rehman Shaikh Gaffar, 2002(Cri.Supp.) Bom.C.R. (A.B.) 706(B) : 2002(2) Mh. L.J. 115. Yearly Bombay Cases Reporter Digest 2002.

12. Sections 125 & 397 — Divorced Muslim women — Revision filed either by divorced Muslim woman or by her former husband — Held, if any revision is filed either by divorced Muslim woman or by her former husband, that will be decided as per the provisions of Chapter IX of the Code of Criminal procedure. Naseemunisa Begum Shaikh Yasin v. Shaikh Abdul Rehman Shaikh Gaffar, 2002(Cri.Supp.) Bom.C.R. (A.B.) 706(D) : 2002(2) Mh. L.J. 115.
Yearly Bombay Cases Reporter Digest 2002.

13. Sections 125 & 397 — Grant of maintenance — Revisional Court powers — Sessions Court accepting that there was sufficient evidence as to ill-treatment and demand of dowry and ordered maintenance — Contention that Session Court in Revision could not go beyond limits in reappreciating evidence and arriving at different conclusion — Held, no complaint about demand of dowry and ill-treatment was made any time prior to the application. Allegations of his having illicit relation with other lady were also added by amendment and were not there in original complaint. Inspite of decree for restitution of conjugal rights she had unjustifiably refused to say with husband and is not entitled to claim maintenance. Sayyed Jabbar Ali Sayyand Ahmed Ali v. Sahena Fatima Sayyed Jabbar Ali, 2002 Bom.C.R. (Cri.) (N.B.)425 : 2002 Cri. L.J. 1332 : 2002 All.M.R. (Cri.) 704. Yearly Bombay Cases Reporter Digest 2002.

14. Sections 125, 397(2) & 482 — Application for maintenance — Rejected by JMFC — Revision dismissed by Sessions Judge — Second revision — Whether application under section 482 can be entertained in view of bar under section 397(2) — Held, from position of law, it would follow that jurisdiction under section 482 of Code can be exercised to prevent abuse of process of Court or otherwise to secure ends of justice. High Court has continuous superintendence over the courts of Judicial Magistrates. Chanda Preetam Wadate v. Preetam Ganpatrao Wadate, 2002(Cri. Supp.) Bom.C.R. (N.B.)270(A) : 2002 Cri. L.J. 1397 : 2002(2) Mh.L.J. 331 : 2002(3) Bom.L.R. 32 : 2002 All M.R.(Cri.) 1650. Yearly Bombay Cases Reporter Digest 2002.

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15. Sections 125(1) & 488 — Arrears of maintenance — Whether claim gets abated on death of husband or can it be enforced against estate of deceased husband —- Held, in considering the liability, if it is found that there were no sufficient reasons for non-compliance with orders for maintenance during life time of husband, the estate of husband can certainly be burdened with liability matter remanded for reconsideration of Magistrate. Halimabee Quari Abdul Ahad Bukhari v. Abdul Ahad Bukhari Abdul Samad Bukhari, 2002(Cri.Supp.) Bom.C.R. (A.B.)123 : 2002(2) Mh.L.J. 236. Yearly Bombay Cases Reporter Digest 2002.

16. Section 125(4) — Right to maintenance —- Muslim wife refusing to stay with husband as he had earlier his first wife — Contention that knowing well that first wife is living if she contracts marriage she cannot take advantage of section 125(4) —- Held, the fact that husband was living with first wife was itself a sufficient ground to claim separate residence and maintenance, this is notwithstanding that husband is ready and willing to keep her in the house. Shaikh Babbu s/o. Shaikh Suleman v. Rashida w/o. Shaikh Babbu, 2002 Bom.C.R.(Cri.) (N.B.) 279(A) : 2002 All.M.R. (Cri.) 856 : 2002(2) Mh.L.J. 495. Yearly Bombay Cases Reporter Digest 2002.

17. Section 125(4) — Maintenance application 000 Expression “living in adultery” —- Scope and effect of — Held, expression living in adultery has to be a continuous course of adulterous conduct. A stray instances of departure from virtue would not be sufficient to deny maintenance to wife. Wife’s adultery has tyo be established by husband. In quasi criminal proceedings, standard of proof would be pre-ponderance of evidence. Chanda Preetam Wadate v. Preetam Ganpatrao Wadate, 2002(Cri. Supp.) Bom.C.R. (N.B.)270(B) : 2002 Cri. L.J. 1397 : 2002(2) Mh.L.J. 331 : 2002(3) Bom.L.R. 32 : 2002 All M.R.(Cri.) 1650. Yearly Bombay Cases Reporter Digest 2002.

18. Maintenance to mother — Remarriage of mother — Her right to claim maintenance from her son from first husband is not lost particularly after death of her second husband. (Pandharinath Bhagawant Jadhav v. Savitrabhai Bhagawant Jadhav and another, 2000(1) MH Lj 408 (Bom):2000 All MR Cri 99). Yearly Maharashtra Law Digest, 2000

19. See Family Courts Act (66 of 1984), Section 7. (Karim Abdul Rehman Shaikh v. Shehnaz Khan Shaikh, 2000 (3) Mh Lj 555 : 2000 (4) All MR 258:2000 All MR (Cri) 1249:2000 Cri LJ 3560 : 2000 (102) 3 Bom LR 105 : 2000 (5) Bom CR 758). Yearly Maharashtra Law Digest, 2000.

20. Muslim Women (Protection of Rights on Divorce Act (25 of 1986), Section 1. — All application under Section 125 of the Criminal Procedure Code filed by divorced Muslim women, which have been decided finally pursuant to the decision of the Division Bench in 1994 Mh. LJ 1376, (Allabuksh v. Noorjahan) will not be reopened die to the present Full Bench Judgment. (Karim Abdul Rehman Shaikh v. Shehnazz Karim Shaikj, 2000 (3) Mh LJ 555 : 2000 (4) All MR 258 : 2000 All MR (Cri) 1249 : 2000 Cri LJ 3560 : 20000 (102) 3 Bom LR 105 : 2000 (5) Bom CR 758. Yearly Maharashtra Law Digest, 2000.

21. Muslim Women (Protection of Rights on Divorce Act (25 of 1986), Section 1. — Pending applications filed by divorced Muslim women, under Section 125 of Criminal Procedure Code to be treated as application under the Muslim Women Act to be disposed of as per Muslim Women Act 1986. (Karim Abdul Rehman Shaikh v. Shehnaz Karim Shaikh, 2000 (3) Mh LJ 555 : 2000 (4) All MR 258 : 2000 All MR (Cri) 1249 : 2000 Cri LJ 3560 : 2000 (102) 3 Bom LR 105 : 2000 (5) Bom CR 758). Yearly Maharashtra Law Digest, 2000.

22. Muslim Women (Protection of Rights on Divorce Act (25 of 1986), Section 3. — (Karim Abdul Rehman Shaikh v. Shehnaz Karim Shaikh, 2000 (3) Mh LJ 555 : 2000 (4) All MR 258 : 2000 All MR (Cri) 1249 : 2000 Cri LJ 3560 : 2000 (102) 3 Bom LR 105 : 2000 (5) Bom CR 758). Yearly Maharashtra Law Digest, 2000.

23. Maintenance —Wife Divorced on account of desertion by her — She is not entitled to maintenance for period prior to passing of decree under Section 13 of Hindu Marriage Act. — Learned counsel for the petitioner then contended that the maintenance has been allowed to the respondent from the date of the application. The application under Section 125, Cr PC was filed by the respondent during the pendency of the civil suit for divorce under Section 13 of the H Indu Marriage Act. It is contended that since the decree of divorce was passed on the found of desertion by respondent, she would not be entitled to Maintenance for any period prior to the passing of the decree under Section 13 of the Hindu Marriage Act. To that extent, learned counsel appears to be correct. But for that short period we would not be inclined to interfere (Rohtash Seingh v. Smt. Ramendri and Others, 2000 (2) All MR 470 : 2000 (3) Bom CR 236 (SC) : 2000 All MR (Cri) 996 SC). Yearly Maharashtra Law Digest, 2000.

24. Maintenance — Since husband, lecturer in college drawing salary of Rs.10,000/-p.m. and also getting Rs.30000/- p.a. from agricultural income, hence, grant of maintenance of Rs. 400/- p.m. to wife, living with her parents justified. (Mahadev Laxman Honagekar v. Malti Mahadev Honagekar, 2000 All MR (Cri) 312). Yearly Maharashtra Law Digest, 2000.

25. Claim to maintenance — Proof of neglect or refusal — may be express or implied. The neglect or refusal may be express or implied and in the circumstances of a particular case, it becomes a matter of inference to be drawn by the court from the conduct of the non-claimant, 1060 Cri LJ 1494 and 1990 Cri LJ 830, Ref. (Mahendrakumar Ramrao Gaikwad v. Gulabgbai Ramro Gaikwad, 2000(2) Mh LJ 378 Bom (AB).

26. Muslim Women (protection of Right on Divorce) Act 1986, Section 7 — Claim of maintenance by Muslim wife under Section 125 of Code — When delegation of power, to give divorce, by husband to wife not proved then grant of maintenance to Muslim wife under Section 125 of Code is valid. (Abdul Razak Hasham Kazi v. Ismalbanu Abdul Rajak Kazi, 2000 All MR (Cri) 814). Yearly Maharashtra Law Digest, 2000.

27. Maintenance — The Magistrate is not competent to decide the validity of marriage in a proceeding under Secion 125 of Code. (Sunita v. Vivekanand Shripati More, 2000 All MR (Cri) 141).

28. Customary divorce by mutual consent — In absence of any clause in divorce deed relinquishing right tomaintenance wife, wife entitled to maintenance. (Suresh Channappa Shate v. Lata Suresh Shate, 2000 All MR (Cri) 1585).

29. IPC 1860, Section 494 — Evidence Act, 1872, Section 8,. 61 — Proof of marriage —- Since proof of marriage in proceeding under Section 125 of Cr PC not strict as in offence under Section 494 of IPC, thus validity of marriage can be determined by Civil Court. (Dwarika Pd. Satpathy v. Bidyut Prava Dixit, 2000 (5) Bom CR 731).

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30. Execution proceedings by wife — When husband obtained ? decree for divorce on the ground of cruelty and desertion during pendency of maintenance application then husband not liable to pay arrears of maintenance and future maintenance to wife. (Satyawan Laxman Jagtap v. Smt. Vimal Satyawan Jagtap, 2000 (5) Bom CR 724.

31. See Family Court Act (66 of 1984) Section 7. (Karim Abdul Rehman Shaikj v. Shenanz Karim Shaikh, 2000(3) Mh LJ 555 : 2000 (4) All MR 258 : 2000 All MR (Cri) 1249 : 2000 Cri LJ3560 : 2000 (102) 3 Bom LR 105 : 2000 (5) Bom CR 758).

32. See Hindu Marriage Ac 1955 Section 24. (Alka w/o Vardhaman Bamb v. Vardhaman @ Pushkarraj @ Narendra s/o Namichana Bamb 2000(3) Mh LJ 512 : 2000 (1) All MR 371.

33. See Hindu Marriage Act 1955, Section 25. (Leena w/o Chandrakant @ Balasaheb Chavan v. Chandrakant @ Balasaheb, 2000 (2) MH LJ (Bom).

34. Section 125 and 128 — See Muslim women (Protection of Rights on Divorce) Act 1986, Section 3 ((Karim Abdul Rehman Shaikj v. Shenanz Karim Shaikh, 2000(3) Mh LJ 555 : 2000 (4) All MR 258 : 2000 All MR (Cri) 1249 : 2000 Cri LJ3560 : 2000 (102) 3 Bom LR 105 : 2000 (5) Bom CR 758).

35. Section 125 and 128 — See Muslim women (Protection of Rights on Divorce) Act (25 of 1986), Section 3 ((Karim Abdul Rehman Shaikj v. Shenanz Karim Shaikh, 2000(3) Mh LJ 555 : 2000 (4) All MR 258 : 2000 All MR (Cri) 1249 : 2000 Cri LJ 356 : 2000 (102) 3 Bom LR 105 : 2000 (5) Bom CR 758).
36. Section 125, 128 — and Hindu Marriage Act (25 of 1955), Section 13 (1) (I-a), (I-b) – Execution proceedings by wife for enforcement of order of maintenance for self and two children in pursuance of order under Section 125, Criminal Procedure Code — In petition for divorce filed by husband on ground of adultery, cruelty and desertion during pendency of maintenance proceedings under Section 125 by wife — Ex parte decree passed in favour of husband on grounds of cruelty and desertion — Husband held not liable to pay arrears and duture maintenance to wife but children entitled to get maintenance in absence of finding by competent court that children were born per alium. 44 BLR 615, Rel. (Satyawan Laxman Jagtap v. Vimal Satyawan Jagtap and others, 2000 (1) Mh LJ 19 (Bon) : 2000 (5) Bom CR 724).

37. Section 125 and 401 — Grant of maintenance to wife — Grant of maintenance to wife by family Court after appreciating evidence in proper prospective not liable to be interfered with by High Court. (Anil Dattatraya Lad v. Sumitra Anil Lad, 2000 All MR (Cri) 985.

38. Section 125(1)(d) — Entitlement of mother to maintenance from son even though husband living — Simply because the wife stands at serial No. (a) and father or mother stand at serial No. (d) in Section 125 of the Criminal Procedure Code it cannot be said that Legislature intends to introduce a preferential right to the wife. The right of maintenance given under Section 125, Criminal Procedure Code o four categories of the persons is their independent statutory right created in their favour to avoid starvation. The statutory rights conferred on the wife, children and parents under Section 125, Criminal Procedure Code are not mutually exclusive but are co- extensive. In claim by the mother for maintenance from her son as a mother under Section 125 (1) (d) of Criminal Procedure Code, 1973, the son cannot be permitted to change the complexion of claim of mother simply on the ground that she is legally wedded wife of the husband who was living. She has got statutory right to claim maintenance from her son provided she is unable to maintain herself. (Mahendrakumar Ramrao Gaikwad v. Gulabai Ramrao Gaikwad, 2000 (2) Mh LJ 378 (Bom) (AB)

39. Section 125(1)(d) — Maintenance claim – Existence of 2 sons — Mother can claim maintenance from any one of both of them – Chouce is given to her 1988 Cri LJ 6, Ref. (Mahendra Kumar Ramrao Gaikwad v. Gulabai Ramrao Gaikwad, 2000 (2) Mh LJ 378 (Bom) (AB).

40. Section 125(4) — Maintenance allowance — Divorced woman — She continues as “wife” — And not remarried — Explanation (b) to sub-section (1) of Section 125 – Refusal to pay maintenance allowance not justified Petition dismissed. — The respondent is a divorced wife. The marriage ties between the parties do not subsist. The decree for divorce was passed on 15th of July, 1995 and since then, she is under no obligation to live with the petitioner. But though the marital relations came to an end by the divorce granted by the Family Court under Section 13 of the Hindu Marriage Act, the respondent continues to be “wife” within the meaning of Section 125, Cr PC.

Claim for maintenance under the first part of Section 125, Cr PC is based on the subsistence of marriage while claim for maintenance of a divorced wife is based on the foundation provided by Explanation (b) to sub-section (1) of Section 125, Cr PC. If the divorced wife is unable to maintain herself and if she has not remarried, she will be entitled to Maintenance Allowance. The Calcutta High Court had an occasion to consider an identical situation where the husband had obtained divorce on the ground of desertion by wife but she was held entitled to Maintenance Allowance as a divorced wife under Section 125, Cr PC and the fact that she had deserted her husband and on that basis a decree for divorce was passed against her was not treated as a bar to her claim for maintenance as a divorced wife. (See Sukumar Dhibar v. Smt. Anjali Dasi, 1983 Cri LJ 36 (Cal.) The Allhabad High Court also, in the instance case, has taken a similar view.

The petitioner then submitted that once a decree for divorce was passed against the respondent ad marital relations between the petitioner and the respondent came to an end, the mutual rights, duties and obligations should also come to an end. He pleaded that in this situation, the obligation of the petitioner to maintain a woman with whom all relations came to an end should also be treated to have come to an end. This plea, as we have already indicated above, cannot be accepted as a woman has two distinct rights for maintenance. As a wife, she is entitled to maintenance unless she suffers from any of the disabilities indicated in Section 125 (4). In another capacity, namely, as a divorced woman, she is again entitled to claim maintenance from the person of whom she was once the wife. A woman after divorce becomes a destitute. If she cannot maintain herself or remains unmarried, the man who was, once, her husband continues to be under a statutory duty and obligation to prove maintenance to her (Rohtash Singh v. Smt. Romendri and others, 2000 (2) All MR 470 (SC): 2000 (3) Bom CR 236 SC : 2000 All MR (Cri) 996 (SC). Yearly Maharashtra Law Digest, 2000.

11 thoughts on “MAINTENANCE OF WIVES, CHILDREN AND PARENTS

  1. If Wife has been working and was filling IT returns. Will she be eligable of Maintenance under u/s 24 of HMA?

  2. can a person who had deserted his first wife and childrens 33 years ago after second marriage ,get maintenance from his sons from first wife. he has been living with his second wife and her childrens since then.

  3. I have applied for the degree of divorce some 6 months back on the grounds of adultary by my wife and the case is still going on but the problem has arisen on the count that i had a joint property with my wife which we had planned to dipose off on the marriage of our daughter who is 23 years at this stage. can u advice me if this joint property can be sold or transferred to our childrens name i.e. daughter 23 years and son 20 years.

  4. my husband has salary package of Rs22 lakhs per annum.He n his family members r torturing me for dowry .m planning for a divorce….after divorce, how much maintainance can i and my children claim?

  5. Meghan, Did you marry only for money ?
    If you are not happy with the life why are you making others life hell ?

    If your husband salary would have been 2000 pm , then you must have left him without asking such questions.
    Please stop harrassing other. If you need money earn by your own.

  6. girls like Megan just hungry for money…for money they would get ready to sit on red light area.

  7. Meghan,

    Seems like you did everything for money and you seem to be no different than a prostitute just that you have entered into a legalised prostitution provided by our Indian Law system.
    If you think you are not, go out and earn for urself.

  8. whether a recovery suit for the maintainence allowance passed u.s.125 of Cr. P.C. beyond the period of 12 months but leesser than 3 years is maintainable or not.

  9. what a pitty how could anyone use these kinds of words for an agrrieved person #5 Rohan #7 False 498a #6 498A Victim shame on ur thinking anyways how could anyone expects great thinking from u as u might h’ve done d same things 2 ur wife,meghan its ur right to claim maintenace u should claim it and d above people mentioning such a shit remarks on Govt. rules not on u

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We handle Women Centric biased laws like False Section 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

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