Editor's Column

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This Blog is written by Ravikiran Shukre | Column Editor

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Court: Supreme Court of India

Citation: Criminal Appeal No. 730 of 2020

Delivered on: 04/11/2020

Bench: Justice Indu Malhotra & Justice R. Subhash Reddy

Relevant Article/Section: Section 125 of the Code of Criminal Procedure

FACTS OF THE CASE[1]:

• The present criminal appeal arises out of an application for interim maintenance filed in a petition u/s 125 of the Code of Criminal Procedure by the respondent-wife and minor son. Wife left the matrimonial home in January 2013, after the birth of the son. Thereafter, the wife filed an application for interim maintenance under section 125 of Cr.PC on 02/09/2013 on behalf of herself and her minor son.

• The Family Court vide an order dated 24/08/2015 awarded interim maintenance of Rs. 15,000/- per month to the wife and Rs. 5,000/- to the minor son from 01/09/2013 to 31/08/2015 and Rs. 10,000/- per month from 01/09/2015 till further orders passed in the main petition.

• The appellant-husband challenged the order passed by the Family Court via Criminal Writ petition no. 875/2015 filed before Bombay High Court, Bench at Nagpur. The High Court dismissed the Writ Petition and affirmed the judgment given by the Family Court.

• The appeal has been filed to impugned the order dated 14/08/2018.

ISSUES RAISED:  

Whether the Wife and Minor Son are liable to Interim Maintenance?

RULE OF LAW WHICH APPLIES:

1] Order for maintenance for wives, children, and parents[2]:

(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,

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:

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:

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 allow 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.

(2) Any such allowance for the maintenance or interim maintenance and expenses of 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 the proceeding, as the case may be.

(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issued 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 allowance for the maintenance or the interim maintenance and expenses of the proceeding, as the case may be, 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 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 grounds 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.

(4) No wife shall be entitled to receive an allowance for the maintenance or interim maintenance and expenses of the 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 favor 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.

2] In the case of Chaturbhuj v. Sitabai[3] the Supreme Court held that the object of maintenance proceedings is not to punish a person for his past neglect but to prevent vagrancy and destitution of a deserted wife by providing her food, clothing, and shelter by a speedy remedy.

3] In the case of Bhuwan Mohan Singh v. Meena & Ors.[4] the Supreme Court has held that Section 125 of the Cr.P.C. was conceived to ameliorate the agony, anguish, financial suffering of a woman who had left her matrimonial home so that some suitable arrangements could be made to enable her to sustain herself and the children. Since it is the sacrosanct duty of the husband to provide financial support to the wife and minor children, the husband was required to earn money even by physical labor, if he is able-bodied, and could not avoid his obligation, except on any legally permissible ground mentioned in the statute.

STATING THE APPLICATION OF RULE OF LAW WHICH APPLIES:

The abovementioned section makes a provision for awarding maintenance by criminal courts to parents, wives and children whether legitimate or illegitimate. The section comes into the light for giving effect to a sacrosanct duty of a man to maintain his children, his wife, and old parents when they are not able to maintain themselves.

This provision is a secular provision as it is applicable and enforceable whatever may be the personal law by which the person is governed. The section provides a Statutory Right to be maintained to a wife, children, and parents. This right is available to everyone irrespective of the Nationality or creed of the parties.

The very object behind enacting this provision is to prevent vagrancy. This provision enables rejected wives, children, and old parents/disabled parents to secure them urgent relief.

Maintenance under various laws is also available but there is no specific provision from which date the amount of maintenance shall be paid by the husband but, this is not the case regarding Section 125 of Code of Criminal Procedure, 1973. Hon’ble Supreme Court in the case of K. Sivaram v. K. Mangalamba and Ors.[5] Held that, “Section 125 (2) Cr.P.C. is the only statutory provision which provides that the Magistrate may award maintenance either from the date of the order or from the date of application”. The idea for granting maintenance from the date of filing an application has nexus with the object behind enacting this provision. Simply it tries to secure a separated wife, by enabling/giving maintenance from her husband so that she can deal up with her financial problems.

CONCLUSION:   

Right to maintenance available under Section 125 of Cr.P.C. is a statutory right having an object directly connected with Social Justice and provides recourse to dependant wives, children, and old parents for their financial support.

Hon’ble Supreme Court, in this case, provided the guidelines for effective execution of the orders of maintenance as – an order of maintenance or a decree may be enforced under section 28A of the Hindu Marriage Act, 1956, section 20 (6) of the Domestic Violence Act and section 128 of the CrPC. The order of maintenance may be enforced as a money decree of a civil court as per provisions of CPC particularly, sections 51, 55, 58, 60 r/w Order XXI. And, contempt proceedings may be initiated for wilful disobedience of the same.

REFERENCES

[1] Rajnesh V. Neha & Anr. (Criminal Appeal No. 730 of 2020).

[2] Section 125 of the Code of Criminal Procedure, 1973.

[3] Chaturbhuj V. Sitabai [(2008) 2 SCC 316].

[4] Bhuwan Mohan Singh v Meena & Ors. [(2015) 6 SCC 353].

[5] [(1989) 1 APLJ (HC) 604].