Maintenance u/s 125 CrPC

Maintenance under 125 CrPC

(1) Overview (2) Procedure (3) Alteration in Allowance (4) Enforcement of Order of maintenance (5) How to counter (6) Factors to be considered to grant maintenance (7) Supreme Court Judgement (8) High Court Judgement (9) Miscellaneous

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provided that the Magistrate may order the father of a minor female child referred at 1.1(b) above 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.

1.2    The amount of rate not exceeding five hundred rupees mentioned at Para 1.1(d) is amended by many state governments with different figure of amounts.

1.3    The maintenance allowance ordered by the Magistrate shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance. It is on the merit and discretion of the Magistrate [Sec. 125(2)].

1.4    If any person fails to comply with the order passed by the Magistrate without sufficient cause, the Magistrate for every breach of order, may 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 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:

    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 become due:

    Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses t 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 [Sec. 125(3)].

1.5    No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to to live with her, husband, or if they are living separately by mutual consent [Section 125(4)].

1.6    On proof that any wife in whose favour an order is passed 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 [Sec. 125(5)].

1.7    In this context, it is pertinent to mention here that the burden to prove lies with wife (Nagin) as she is to claim maintenance.

(2) Procedure (Sec. 126 of CrPC)

2.1    As per Section 126 (1) of CrPC, proceedings under section 125 of CrPC may be initiated against any person in any district –

(a) where he is, or

(b) where he or his wife resides, or

(c) where he last resided with his wife, or as the case may be, with the mother of the illegitimate child.

2.2    Practically, Section 125 CrPC is miss-used by wife (Nagin) against her noble husband to harass him and compel to make him agree to live on her conditions. However, this section is for all as incorporated in para 1.1 above.

2.3    All evidence to such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made or, when his personal attendance is dispensed with in the presence of his pleader, and shall be recorded in the matter prescribed for summons-cases:

    Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is willfully avoiding service, or willfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper [Sec. 126(2)].

2.4    Maintenance case under section 125 of CrPC is lodged/registered and goes under trial at Family Court only. Since, Family Court was established under The Family Court Act 1984 and CrPC was enacted in 1973. Hence, Magistrate word is used for maintenance under this section. Herein after, Principal Judge/Addl. Principal Judge/Judge will be used.

(3) Alteration in Allowance

3.1    As per Section 127(1) of CrPC, on proof of a change in the circumstances of any person, receiving (wife or other person who is benefited), under section 125 a monthly allowance, or ordered under the same section to pay a monthly allowance to his wife, child, father or mother, as the case may be, the Principal Judge/Addl. Principal Judge may make such alteration in the allowance as he thinks fit:

Provided that if he increases the allowance, the monthly rate of five hundred rupees in the whole shall not be exceeded

3.2    Where it appears to the Principal/Addl. Principal judge that, in consequence of any decision of a competent civil Court, any order made under section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly [Sec. 127 (2)].

3.3     Where any order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Principal/Addl. Principal judge shall, if he is satisfied that—

(a) the woman has, after the date of such divorce, remarried, cancel such order as from the date of her remarriage;

(b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order—

(i) in the case where such sum was paid before such order, from the date on which such order was made,

(ii) in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman;

(c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance after her divorce, cancel the order from the date thereof [Sec. 127(3)].

3.4     At the time of making any decree for the recovery of any maintenance or dowry by any person, to whom a monthly allowance has been ordered to be paid under section 125, the civil Court shall take into account the sum which has been paid to, or recovered by, such person as monthly allowance in pursuance of the said order [Sec. 125 (4)].

(4) Enforcement of Order of maintenance

4.1    Under Section 128 of CrPC, a copy of the order of maintenance shall be given without payment to the person in whose favour it is made, or to his guardian, if any, or to the person to whom the allowance is to be paid; and such order may be enforced by any the Principal/Addl. Principal Judge in any place where the person against whom it is made may be, on such Principal/Addl. Principal Judge is satisfied as to the identity of the parties and the non-payment of allowance is due.

(5) How to counter

5.1    This is the most important part of this chapter. Practically, it is found that wife file the case under section 125 of CrPC at her father’s place (mayeke) for easy approach and to drag her husband to her residing place (preferably her Mayeka) to make him face some hardship of traveling. How to counter the maintenance case is widely discussed in successive para hereinafter.

5.2    Whether the maintenance case is filed by wife or not can easily be known by visiting e-court integrated website by visiting the concerned state and then the civil court where wife supposed to register such case. Just search by parties name (wife or husband) and confirm.

5.3    If the case is registered or not is not known, it does not matter. Make sure that never receive such summon of Family Court and always keep a vigil. Don’t get panic and never think about contempt of court etc. which may be informed you by any one or by oneself. It’s Family Court and it is never harsh on party. Court runs on it’s own speed and rule. The court knows everything about the case and parties but the court is bound to run by rule. Hence, never be in hurry or confused.

5.4    Obtain the certified copy of the plaint of the case and deploy a legal practitioner to watch the actual movement of the proceeding. The lawyer will be present in every date of the case to watch the development.

5.5    After obtaining the certified copy from the court, go through the plaint that is made by the wife and make a summery. Wife definitely mention fake amount of inflated expenditure made by his parents in the marriage and all. If such big amount is mentioned, then file a Tax Evasion Petition (TEP) against her parents.

5.6    Court will again issue a summon to appear before the court for hearing. Never receive any such summon. Keep patience always.

5.7    There is a possibility that a Newspaper publication pledge may be filed before the court by wife as per law. However, the same is dispensed with by the order of Hon. Supreme Court of India.

5.8    Wife will apply/pledge for ex parte order before the court. Let her do that. After acceptance of her pledge regarding ex parte, witnessing of wife and her side will be done before the court in due course.

5.9    Once, the witnessing is done before the court, on the next date, file a Recall Petition and appear through legal counsellor by disclosing sue-motto appearance by pleading that the same is not known to the respondent (the husband), as soon as it is brought to the notice, he is appearing before the court.

5.10    An argument can take place in the court whether to consider sue motto appearance or not. In later part it will be accepted by the court by making some fine or otherwise.

5.11    Once, the sue-motto appearance and Recall Petition are accepted then the entire process will begin from the very beginning. In this process, it may take 18 to 24 months. During this waiting period, the confidence, fury, proudness, fake womanhood, fake feminism will crack down and this period can be utilized by collecting evidences against wife regarding her – (a) Educational Qualification, (b) Technical qualification if any, (c) professional qualification if any, (d) earning capacity, (e) adultery if any (f) other affair if any (g) second marriage etc.

5.12    During this period, the use of RTI Act 2005 to collect evidence about her qualification can be done. Qualification of wife will help in minimizing or disallowance of her claim of maintenance.

5.13    Of late, file Written Statement (WS) against her plaint by taking into account all her fake allegation. Never be in hurry to submit income proof of self as it is the liability of the wife to prove husband’s income or court may order to produce the same. By filing WS always try to reflect her income making capacity. Even an illiterate woman earns enough to maintain her kids and family by working as maid and other kind of work. Wife is intentionally, either suppressing her income or capacity to earn. Quote the Government tag line – Beti Bachao, Beti Padhao’ as government making huge expenditure to enable a girl/woman to become self-reliant. Hence, if she is educated, her capacity to earn can’t be ignored.

5.14    Points to be included while preparing WS: WS is a very important move in any case. Hence, in case of maintenance under this section, primarily, following points to be taken into consideration:

(a) The Educational qualification and her certificates.

(b) Job details of wife if any like – Bank Passbook, IT return, Salary Slip etc.

(c) Other investment details of wife like – Any LIC, House or car on her name etc.

(d) Husband expenses and liabilities.

(e) Always express, Father & Mother are husband’s liabilities. Support with their medical expenses.

(f) Quote important judgments of Hon. Supreme Court/Hon. High Court which may deem fit as per case history. Some important judgments are detailed in successive Para – 6 & 7.

(g) quote her adultery involvement supported by documents.

(h) Deny all her allegations point by point supported by documents.

(i) Child/Children is/are the joint responsibility/accountability of husband & wife.

(j) mention that husband tried his level best to make her happy. Keep ready happy time photographs (Honeymoon, tour, visit etc.). Generally, Nagins (wives) are super social site active. Hence, the same can be downloaded from her facebook, Instagram etc account preferably the screen shot.

5.15     Pray before the court for mediation, as it is in the process of Family Court. It will help in to delay the course of trial for further 2 to 6 months.

5.16    Pledge before the court for exemption of physical appearance. Opposite party will definitely oppose the same and an argument can be fixed. This may also take few months.

5.17    File a petition under section 340 of CrPC for variation of statement made by wife before the court. It will also give a few months of delay in the course of proceedings.

5.18    File a petition under Section 291 to obtain her all educational qualification degrees, bank details and statement from the concerned office/departments.

5.19    Always agree for maintenance to kids if any. However, to maintain kids is joint responsibility of husband and wife. It will make a good image before the court.

5.20    Try to defense her allegations in gentleman way and always try to show the court your gentleness in a way that you are the victim.

5.21    Always provide Vakalatnama to your counsellor who is handling the case well in advance, he can use it as and when required.

5.22    If wife witnesses different stories in different court, Perjury may be used in the frame to punish her. It lefts a bad image and set the wife on back-foot.

    (6) Factors to be considered to grant Maintenance

6.1 It is always a matter of curiosity that what is the formula, circumstances, method to determine ‘Interim Maintenance’ or ‘Maintenance’. There is no any defined formula, criteria, method fixed under law to determine ‘Interim Maintenance’ or ‘Maintenance’ However, some aspects are definitely considered by Principal Judge/Addl. Principal Judge to while deciding such maintenance. In this regard, there are some judgements which are discussed in successive para hereinafter.

6.2    The High Court of judicature at New Delhi in Alok Kumar Jain v. Purnima Jain, 2007(96) DRJ 115, a co-ordinate Bench while examining grant of maintenance, pendente lite, observed that

“Para-10. Law under Section 24 of the Hindu Marriage Act is well crystallized. From the judicial precedents, factors which can be culled out as required to be kept in mind while awarding interim maintenance are as under

(i) Status of the parties,

(ii) Reasonable wants of the claimant,

(iii) The income and property of the claimant,

(iv) Number of persons to be maintained by the husband,

(v) Liabilities, if any, of the husband,

(vi) The amount required by the wife to live a similar life style as she enjoyed in the matrimonial home keeping in view food, clothing, shelter, educational and medical needs of the wife and the children, if any, residing with the wife and

(vii) Payment capacity of the husband.

Para-11. Further, where it is noted that the respective spouses have not come out with a truthful version of their income, some guesswork has to be resorted to by the Court while forming an opinion as to what could possibly be the income of the 2 spouses. This guesswork has to be based on the status of the family, the place where they are residing and the past expenses on the children, if any.”

6.3    In an another case, in Dev Dutt Singh v. Smt. Rajni Gandhi, AIR 1984 Del 320, the learned Single Judge of this Court (Avadh Behari Rohtagi, J.) observed that there cannot be any mathematical formula for award of the maintenance amount such as 1/3rd or any other proportion of the husband’s income. It was held that the law has to operate in a flexible and elastic manner to do complete justice between the parties. The factors to be taken into consideration were laid down in paras 12 to 15 of the judgment, which are extracted hereunder:

“Para-12. The substance of these judgments is this. Each case must be determined according to its own circumstances. No two cases arc alike. These cases do not lay down any proposition of law. On the facts of the particular case the Court adjudicated what allowance will be reasonable to award “having regard to the petitioner’s own income and the income of the respondent”. If the present case illustrates anything it is this that rigid adherence to “one-third” rule may not always be just. Section 24 is not a code of rigid and inflexible rules, arbitrarily ordained, and to be blindly obeyed. It leaves everything to the Judge’s discretion. It does not enact any mathematical formulae of one-third or any other proportion. It gives wide power, flexible and elastic, to do justice in a given case.

Para-13. In most cases the standard of living of one or both of the parties will have to suffer because there will be two households to support instead of one. When this occurs, the Court clearly has to decide what the priorities are to be and where the inevitable loss should fall. Generally speaking, wife is the financially dependent spouse. She is potentially likely to suffer greater financial loss from the dissolution of marriage than the husband. For her support the Court has to award a reasonable amount. The cases decided under the Act should not be followed slavishly. In the words of Searman L.J. :

“It would be unfortunate if the very flexible and wide- ranging powers conferred upon the Court should be cut down or forced into this or that line of decisions by the Courts.” (Chamberlain v. Chamberlain, (1974) 1 All ER 33, 38 CA).

Para-14. What is the right figure of periodical payment is essentially a practical decision on the facts. The ultimate evaluation is left to the adjudicator. On the statutory hypothesis it is an indefensible position to hold that the wife in the present case is not entitled to anything because she is already earning Rs.1,270/- per month which comes to one-third of the husband’s income.

Para-15. What is a proper proportion of the husband’s income to be given to the wife as maintenance pendente lite is a question to be determined in the light of all the circumstances of a particular case; the very flexible and wide-ranging powers vested in the Court make it possible to do justice.”

(7) Supreme Court Judgement

7.1    Husband’s EMI towards house to be considered in CrPC 125 Maintenance to wife: In Criminal Appellate Jurisdiction, Criminal Appeal No. 879 OF 2009 [Arising out of SLP(Crl.) No.7503 of 2008] which pertain to BHUSHAN KUMAR MEEN … Appellant(s) Vs MANSI MEEN @ HARPREET KAUR … Respondent(s) WITH SLP(Crl.)No.7924 of 2008.

Highlight of the judgement: Husband’s EMI towards home loan was considered and Hon. Supreme Court reduced the maintenance accordingly.

(8) High Court Judgement

8.1    The landmark judgement in the favour of either minimizing the maintenance amount of dismissing the claim are discussed in successive para herein after.

8.2    No maintenance to a well-Qualified wife: Judgement of Madhya Pradesh High Court, Indore Bench in Civil Revision No. 1290/99 dtd: 24/03/2000 in Smt. Mamta Jaiswal Vs Rajesh Jaishwal.

Highlight of the judgement: Wife was well qualified and capable to maintenance herself. Her claim was dismissed.

On the basis of this order, One of Mumbai Family court dismissed the petition of wife for grant of maintenance.

8.3    Qualified MBBS wife asked to do some work if she wants maintenance: Judgement of Hon. High Court of Delhi in M(M) 1153/2008 in Kavita prasad Vs Ram Ashray Prasad. Ordered by Hon. Justice Mr. Shivnarayan Dhingra dtd: 01/10/2008.

Highlight of the judgement: Being a qualified Doctor, I consider that as she is receiving maintenance from husband, the Court should not allow her experience and qualification to go waste. I consider that she should be directed to work as a honorary Doctor in some public welfare institute or school free of charges where she can take care of health of the poor people. Let her come to Court and give an undertaking that she was prepared to work without charging anything in any institution named by this Court around her house minimum 5 hours a day and 6 days a week, so long she receives maintenance from her husband on the plea of being unemployed.

8.4    Method to grant 1/3^rd of Husband’s income rule rejected when both are employed: The Hon. High Court of Delhi in Crl. Misc. 75/2012 & Crl. Misc. 2227/2012 in Lalit Bhola Vs Nidhi Bhola & Anr. Judgement pronounced on 12/02/2013.

Highlight of the Judgement: In Dev Dutt Singh v. Smt. Rajni Gandhi, AIR 1984 Del 320, the learned Single Judge of this Court(Avadh Behari Rohtagi, J.) observed that there cannot be any mathematical formula for award of the maintenance amount such as 1/3rd or any other proportion of the husband’s income. It was held that the law has to operate in a flexible and elastic manner to do complete justice between the parties.

(9) Miscellaneous

9.1    All maintenance cases are under the jurisdiction of Family Court. Hence, it is advised to go through ‘Family Court’ & ‘Court’ article under Legal for better appreciation. However some information is discussed in successive para.

9.2    The family court has the power to make their own procedure. Family Courts are not required to record the oral statement of the witness at length.

9.3      The Family Court can receive any document or statement even if it is not acceptable under The Indian Evidence Act 1872.

9.4    camera proceedings can be ordered if the parties desire. (In camera proceedings means that the public is not allowed to see the proceedings)

9.5    The appeal from family courts lies directly to the High Court within 30 days of passing the order or the judgement. Such The appeal can be on both question of law and fact.

9.6    Steps to follow for registering a suit in a Family Court : Following steps are required to be followed-

(a) Such person needs to describe all the details clearly on a watermarked paper and submit along with the court fees and an affidavit.

(b) These files are presented to the Principal Judge of the Family Court. After verification of each file and hearing the petitioners, the Principal Judge decides for further steps.

(c) The applicant files the summons form for notice on the opposite parties.

9.7     The family court can entertain the petition relating to the property dispute between the parties to a marriage only, but it has no jurisdiction to entertain the applications in case involving a dispute between brothers, sisters, father, mother concerning property.

9.8     Two pillars on which the whole structure of family courts is built are Counselling and conciliation.

9.9    The Family Courts Act also covers areas of the following acts:

(a) The Hindu Marriage Act, 1955

(b) Special Marriage Act, 1954

(c) Hindu Adoption and Maintenance Act, 1956

(d) Parsi Marriage and Divorce Act, 1936

(e) The Indian Divorce Act, 1869

(f) The Christian Marriage Act, 1972

(g) Dissolution of Muslim Marriage Act, 1939

(h) The Code of Criminal Procedure 1973 (Sec. 125 to 128)

(i) The Guardians andn Wards Act, 1890

9.10    The Family Court Act, stipulates that a party is not entitled to be represented by a lawyer without the express permission of the court. However, invariably the court grants this permission and practically, it is a lawyer which represents the parties.

9.11    The most unique aspect regarding the proceedings before the Family Court are that they are first referred to conciliation and only when the conciliation proceedings fail to resolve the issue successfully, the matter taken up for trial by the Court.

9.12    The Conciliators are professionals who are appointed by the Court.

9.13    Conciliation: Conciliation is an alternative out-of-court dispute resolution instrument. Like mediation, conciliation is a voluntary, flexible, confidential, and interest based process. The parties seek to reach an amicable dispute settlement with the assistance of the conciliator who acts as a neutral third party.

9.14    Mediation: Mediation is an informal and flexible dispute resolution process. The mediator’s role is to guide the parties toward their own resolution. Through joint sessions and separate caucuses with parties, the mediator helps both sides define the issues clearly, understand each other’s position and move closer to resolution.

In a mediation procedure, a neutral intermediary, the mediator, helps the parties to reach a mutually satisfactory settlement of their dispute. Any settlement is recorded in an enforceable contract. The principal characteristics of mediation are: Mediation is a non-binding procedure controlled by the parties.

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