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Important Judgments on Section 125 CrPC
Muneeb Rashid Malik
23 Jan 2023 2:17 PM GMT
“This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. We have no doubt that sections of statutes calling for construction by courts are not petrified print but vibrant words with social functions to fulfil. The brooding presence of the...
“This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. We have no doubt that sections of statutes calling for construction by courts are not petrified print but vibrant words with social functions to fulfil. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advance the cause — the cause of the derelicts.” - V.R. Krishna Iyer, J.
The Supreme Court and the High Courts of the country have time and again held that the primary object of Section 125 of the Code of Criminal Procedure, (CrPC) 1973 (Order for maintenance of wives, children and parents) is to give social justice to the woman, child and infirm parents and to prevent destitution and vagrancy by compelling those who can support those who are unable to support themselves but have a moral claim for support. In this write-up, the important pronouncements on Section 125 CrPC are briefly discussed.
Bhagwan Dutt v. Kamla Devi, (1975) 2 SCC 386.
https://indiankanoon.org/doc/138019/
The Supreme Court held that the object of these provisions being to prevent vagrancy and destitution, the Magistrate has to find out as to what is required by the wife to maintain a standard of living which is neither luxurious nor penurious but is modestly consistent with the status of the family. The needs and requirements of the wife for such moderate living can be fairly determined, only if her separate income, also, is taken into account together with the earnings of the husband and his commitments.
Chaturbhuj v. Sita Bai, (2008) 2 SCC 316.
https://indiankanoon.org/doc/1720873/
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. Section 125 CrPC is a measure of social justice especially enacted to protect women and children, and falls within the constitutional sweep of Article 15(3), reinforced by Article 39 of the Constitution. Under the law the burden is placed in the first place upon the wife to show that the means of her husband are sufficient.
Bhuwan Mohan Singh v. Meena, (2015) 6 SCC 353.
The Supreme Court held that Section 125 of the Code of Criminal Procedure was conceived to ameliorate the agony, anguish, financial suffering of a woman who left her matrimonial home for the reasons provided in the provision so that some suitable arrangements can be made by the court and she can sustain herself and also her children if they are with her. The concept of sustenance does not necessarily mean to lead the life of an animal, feel like an unperson to be thrown away from grace and roam for her basic maintenance somewhere else. She is entitled in law to lead a life in the similar manner as she would have lived in the house of her husband. That is where the status and strata come into play, and that is where the obligations of the husband, in case of a wife, become a prominent one. In a proceeding of this nature, the husband cannot take subterfuges to deprive her of the benefit of living with dignity. Regard being had to the solemn pledge at the time of marriage and also in consonance with the statutory law that governs the field, it is the obligation of the husband to see that the wife does not become a destitute, a beggar. A situation is not to be maladroitly created whereunder she is compelled to resign to her fate and think of life “dust unto dust”. It is totally impermissible. In fact, it is the sacrosanct duty to render the financial support even if the husband is required to earn money with physical labour, if he is able-bodied. There is no escape route unless there is an order from the court that the wife is not entitled to get maintenance from the husband on any legally permissible grounds.
Rajnesh v. Neha, (2021) 2 SCC 324.
The Supreme Court, keeping in mind, the need for a uniform format of Affidavit of Disclosure of Assets and Liabilities to be filed in maintenance proceedings, considered it necessary to frame the following guidelines:
(a) The Affidavit of Disclosure of Assets and Liabilities annexed at Enclosures I, II and III of the judgment in Rajnesh v. Neha, as may be applicable, shall be filed by the parties in all maintenance proceedings, including pending proceedings before the concerned Family Court / District Court / Magistrate’s Court, as the case may be, throughout the country;
(b) The applicant making the claim for maintenance will be required to file a concise application accompanied with the Affidavit of Disclosure of Assets;
(c) The respondent must submit the reply alongwith the Affidavit of Disclosure within a maximum period of four weeks. The Courts may not grant more than two opportunities for submission of the Affidavit of Disclosure of Assets and Liabilities to the respondent. If the respondent delays in filing the reply with the Affidavit, and seeks more than two adjournments for this purpose, the Court may consider exercising the power to strike off the defence of the respondent, if the conduct is found to be wilful and contumacious in delaying the proceedings. On the failure to file the Affidavit within the prescribed time, the Family Court may proceed to decide the application for maintenance on basis of the Affidavit filed by the applicant and the pleadings on record;
(d) The above format may be modified by the concerned Court, if the exigencies of a case require the same. It would be left to the judicial discretion of the concerned Court, to issue necessary directions in this regard;
(e) If apart from the information contained in the Affidavits of Disclosure, any further information is required, the concerned Court may pass appropriate orders in respect thereof;
(f) If there is any dispute with respect to the declaration made in the Affidavit of Disclosure, the aggrieved party may seek permission of the Court to serve interrogatories, and seek production of relevant documents from the opposite party under Order XI of the CPC; On filing of the Affidavit, the Court may invoke the provisions of Order X of the C.P.C or Section 165 of the Evidence Act 1872, if it considers it necessary to do so; The income of one party is often not within the knowledge of the other spouse. The Court may invoke Section 106 of the Evidence Act, 1872, if necessary, since the income, assets and liabilities of the spouse are within the personal knowledge of the party concerned;
(g) If during the course of proceedings, there is a change in the financial status of any party, or there is a change of any relevant circumstances, or if some new information comes to light, the party may submit an amended / supplementary affidavit, which would be considered by the court at the time of final determination;
(h) The pleadings made in the applications for maintenance and replies filed should be responsible pleadings; if false statements and misrepresentations are made, the Court may consider initiation of proceeding u/S. 340 Cr.P.C., and for contempt of Court;
(i) In case the parties belong to the Economically Weaker Sections (“EWS”) or are living Below the Poverty Line (“BPL”), or are casual labourers, the requirement of filing the Affidavit would be dispensed with;
(j) The concerned Family Court / District Court / Magistrate’s Court must make an endeavour to decide the I.A. for Interim Maintenance by a reasoned order, within a period of four to six months at the latest, after the Affidavits of Disclosure have been filed before the court.
(k) A professional Marriage Counsellor must be made available in every Family Court.
The Supreme Court also issued the following directions to overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings:
(i) where successive claims for maintenance are made by a party under different statutes, the Court would consider an adjustment or setoff, of the amount awarded in the previous proceeding/s, while determining whether any further amount is to be awarded in the subsequent proceeding;
(ii) it is made mandatory for the applicant to disclose the previous proceeding and the orders passed therein, in the subsequent proceeding;
(iii) if the order passed in the previous proceeding/s requires any modification or variation, it would be required to be done in the same proceeding.
The Supreme Court further held that maintenance in all cases will be awarded from the date of filing the application for maintenance and for enforcement / execution of orders of maintenance, it was directed that an order or decree of maintenance may be enforced under Section 28A of the Hindu Marriage Act, 1956; Section 20(6) of the D.V. Act; and Section 128 of Cr.P.C., as may be applicable. The order of maintenance may be enforced as a money decree of a civil court as per the provisions of the CPC, more particularly Sections 51, 55, 58, 60 r.w. Order XXI.
Shailja & Anr. v Khobbanna, (2018) 12 SCC 199.
https://www.livelaw.in/wifes-capability-earn-no-reason-reduce-maintenance-awarded-sc-read-order/
The Supreme Court held that merely because the wife is capable of earning, it would not be a sufficient ground to reduce the maintenance awarded by the Family Court. The Court has to determine whether the income of the wife is sufficient to enable her to maintain herself, in accordance with the lifestyle of her husband in the matrimonial home as was held in Chaturbhuj v Sita Bai, (2008) 2 SCC 316. Sustenance does not mean and cannot be allowed to mean mere survival as was held in Vipul Lakhanpal v. Smt. Pooja Sharma, 2015 SCC OnLine HP 1252.
Sunita Kachwaha v. Anil Kachwaha, (2014) 16 SCC 715.
https://indiankanoon.org/doc/3786357/
In this case, the wife had a postgraduate degree, and was employed as a teacher. The husband raised a contention that since the wife had sufficient income, she would not require financial assistance from the husband. The Supreme Court held that merely because the wife was earning some income, it could not be a ground to reject her claim for maintenance.
Swapan Kumar Banerjee v. State of W.B., (2020) 19 SCC 342.
https://www.livelaw.in/top-stories/deserter-wife-entitled-to-maintenance-after-divorce-148527
The Supreme Court held that a divorced wife, even wife who has been divorced on ground of desertion, is entitled to claim maintenance under Section 125 CrPC and also held that a Petition for maintenance filed after divorce and remarriage of husband after a year, will make no difference because it is for wife to decide when she wants to file a petition for maintenance.
Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556.
https://indiankanoon.org/doc/823221/
The Supreme Court held that there is no conflict between the provisions of Section 125 CrPC and those of the Muslim Personal Law on the question of the Muslim husband's obligation to provide maintenance for a divorced wife who is unable to maintain herself. Section 125 CrPC deals with cases in which, a person who is possessed of sufficient means neglects or refuses to maintain, amongst others, his wife who is unable to maintain herself. Since the Muslim Personal Law, which limits the husband's liability to provide for the maintenance of the divorced wife to the period of iddat, does not contemplate or countenance the situation envisaged by Section 125 CrPC, it would be wrong to hold that the Muslim husband, according to his personal law, is not under an obligation to provide maintenance, beyond the period of iddat, to his divorced wife who is unable to maintain herself. If the divorced wife can maintain herself, the husband's liability to provide maintenance for her ceases with the expiration of the period of iddat. If she is unable to maintain herself, she is entitled to take recourse of Section 125 of CrPC.
Shabana Bano v. Imran Khan, (2010) 1 SCC 666.
https://indiankanoon.org/doc/283310/
The Supreme Court held that a divorced Muslim woman would be entitled to claim maintenance from her divorced husband, as long as she does not remarry. The maintenance petition under Section 125 CrPC filed by a divorced Muslim woman against her ex-husband would be maintainable even if an Application under Section 5 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 has not been filed.
Danial Latifi v. Union of India, (2001) 7 SCC 740.
https://indiankanoon.org/doc/410660/
The Supreme Court held that a comparison of Sections 3(1)(a) and Section 3 of Muslim Women (Protection of Rights on Divorce) Act, 1986 with Section 125 CrPC will make it clear that the requirements provided in Section 125 CrPC and the purpose, object and scope thereof being to prevent vagrancy by compelling those who can do so to support those who are unable to support themselves and who have a normal and legitimate claim to support are satisfied.
Bharat Hegde v. Saroj Hegde (2007) 140 DLT 16.
https://indiankanoon.org/doc/260066/
The High Court of Delhi held that the following factors need to be considered for determining maintenance: status of the parties; reasonable wants of the claimant; the independent income and property of the claimant; the number of persons, the non-applicant has to maintain; the amount should aid the applicant to live in a similar lifestyle as he/she enjoyed in the matrimonial home; non-applicant's liabilities, if any; provisions for food, clothing, shelter, education, medical attendance and treatment, etc. of the applicant; payment capacity of the non-applicant; some guesswork is not ruled out while estimating the income of the non-applicant when all the sources or correct sources are not disclosed; the non-applicant to defray the cost of litigation; the amount awarded under Section 125 CrPC is adjustable against the amount awarded under Section 24 of the Hindu Marriage Ac, 1955.
Sreeja T. and Ors. v. Rajaprabha, 2022 LiveLaw (Ker) 661.
The High Court of Kerala held that when a party claims allowance of maintenance by filing a petition, the party must get the maintenance from the date of the petition onwards and the same is the sanction of law. No doubt, deviation therefrom can be had for specified reasons to be recorded in writing and not otherwise.
Manish Saini v. State of Uttarakhand, 2022 LiveLaw (Utt) 45.
The High Court of Uttarakhand held that Section 125 (1) of Cr.P.C. opens with the expression "if any person". This reflects the legislative intent that any one of the several persons may be chosen for claiming maintenance and it is not obligatory on the part of the claimant seeking maintenance to name all the persons having sufficient means to be proceeded against. In other words, it is for the claimant to decide whether he/she wants maintenance from any one or all the persons, who are liable to maintain him/her.
Birendra Kumar Tiwari vs. Neetu Tiwari, 2022 LiveLaw (Chh) 79.
The Chhattisgarh High Court held that as per Section 125 Cr.P.C., to get maintenance, daughter has to make out a case that she is unable to maintain herself or has not attained the age of majority.
Sachindra Kumar Samal v. Madhusmita Samal @ Swain & Anr., 2022 LiveLaw (Ori) 156.
The Orissa High Court held when a proceeding of maintenance is dismissed on account of default and if it is claimed that the court lacks jurisdiction to restore it in absence of any provision, how it could have been dismissed for non-prosecution, again for having no provision in the Cr.P.C. Since such is action is predominantly civil in nature, the power to restore a proceeding under Section 125 Cr. P.C. is inherent. An application for maintenance is not a complaint as defined in Section 2(d) Cr.P.C. so to hold that in the event of its dismissal for default, the bar contained in Section 362 Cr. P.C. would be attracted.
Rama Nand v. Hira Lal, 2022 LiveLaw (AB) 477.
The Allahabad High Court has held that it is the discretion of the Magistrate, before whom an application for enforcement of the maintenance order comes up, either to issue a warrant for the levy of the amount by attachment and sale of movables of the defaulter under Section 421(1)(a) of the CrPC, or to issue a warrant to the Collector, authorizing him to realize the amount as arrears of land revenue. It is open to issue kind of warrants simultaneously also.
Dr. Arvind Kishore v. Neha Mathur & Anr., 2022 LiveLaw (Raj) 235.
The Rajasthan High Court held that deductions from husband's monthly income due to certain leaves availed by him cannot become a part of the baseline in computing maintenance under Section 125 CrPC, as in all likelihood, the same will fluctuate over time, owing to very many reasons.
Sunita & Anr. v. Vijay Pal @ Mohd. Sabir & Anr., 2022 LiveLaw (Del) 788.
The High Court of Delhi held that a petition under Section 125 Cr.P.C. will be covered by the principle of res judicata due to its universal applicability, as proceedings under Section 125 Cr.P.C. are quasi-criminal in nature. Once the petition has been adjudicated under Section 125 Cr.P.C. favourably by a Court of competent jurisdiction on merits, a subsequent petition cannot be preferred which arises from the same dispute having similar situations, circumstances, and grounds as the previously adjudicated issues in the earlier petition filed under Section 125 Cr.P.C. The appropriate recourse would be seeking relief under Section 127 of the CrPC, not filing a fresh petition under Section 125 of the CrPC.
Soumitra Kumar Nahar v. Parul Nahar, 2022 LiveLaw (Del) 731.
The Delhi High Court held that the pendency of a divorce petition and rejection of an application for maintenance in such petition, would not disentitle the wife to seek maintenance under Section 125 of CrPC.
(Muneeb Rashid Malik is an Advocate and can be reached at muneebrashidmalik@gmail.com. He tweets @muneebmalikrash).
