FAMILY LAW - 1

TEAM - 1
CONCEPTUAL ANALYSIS OF PROVISIONS RELATING TO
MAINTENANCE UNDER CR.PC

SUBMITTED TO:

Ms. Shamali SS
(ASSISTANT PROFESSOR)
 CONCEPTUAL ANALYSIS OF PROVISIONS RELATING
TO MAINTENANCE UNDER CR.PC

INTRODUCTION:

Section 125 of the Code of Criminal Procedure aims to provide a swift remedy to dependent
wives, children, and parents, protecting them from destitution by ensuring maintenance.
This study focuses specifically on the impact and implementation of Section 125 on women.
The legislative intent behind this provision aligns with constitutional principles of social
justice, particularly Articles 15(3) and 21 of the Indian Constitution. Notably, Section 125
operates independently of personal laws, making it secular and consistent with constitutional
values.
Judicial pronouncements emphasize the moral and legal duty of husbands to maintain their
families, reflecting the societal imperative of respecting women. While India has long
discussed women's empowerment, effective legal implementation has lagged. Section 125
aims to provide timely and accessible support to deserted women, diverging from
empowerment rhetoric to focus on practical assistance. This study seeks not to evaluate the
provision itself but to scrutinize its implementation. Can Section 125 truly prevent
destitution and vagrancy among women? It explores the social validity of Section 125 and its
efficacy in safeguarding deserted wives, addressing issues of applicability, conflicts with
personal laws, and implementation challenges.
By examining judicial decisions and legislative frameworks, this study proposes remedies to
enhance the enforceability of Section 125, ensuring its smooth and effective operation within
society.

[1] Section 125 in The Code of Criminal Procedure, 1973

[2] The Constitution of India

OBJECT & SCOPE:

The primary objective of Section 125 of the Cr.Pc. is to provide a swift, effective, and
affordable remedy to deserted dependents, particularly wives. It aims to protect neglected
wives from destitution and ensure they receive maintenance.

As highlighted in the case of Bhagwan Dutt v. Kamla Devi[3] the provision seeks to prevent
starvation and vagrancy, thereby deterring individuals from resorting to criminal activities
for survival. Section 125 ensures that neglected wives are not left destitute and forced into
immorality or crime.

While Section 125(3) provides for fines and imprisonment for breaching orders, its main
purpose is not punitive but rather to swiftly enforce liability, preventing destitution through
summary procedures.

The provisions of Section 125 must be liberally interpreted, prioritizing social justice for
women and children and compelling men to fulfill their social and moral duty to support
dependents.

Another key aspect of Section 125 is its secular nature, applicable to individuals regardless of
religion or caste. It does not conflict with personal laws, as affirmed by the Supreme Court
in Nanak Chandra v. Chandra Kishore Aggarwal [4]

This provision aligns with Article 15(3) and Article 21 of the Indian Constitution, which
advocate for laws protecting women and children and ensuring the right to a dignified life,
free from destitution and social exclusion.

Despite its clear objectives, Section 125 remains controversial in both criminal and civil law,
hindering effective implementation and depriving needy women of assistance. To fulfill its
purpose, Section 125 must be easy, speedy, and affordable, with no distinctions based on
personal laws.

The wide scope of Section 125 should not be restricted by legal complexities, as its
effectiveness depends on simplicity and accessibility for those in need.

[3] (1975) 2 SCC 386

[4] (1969) 3 SCC 802

APPLICATION OF SECTION 125 OF THE CODE OF
CRIMINAL PROCEDURE:

Section 125 applies to maintenance claims by wives, children, and parents, but for the
purpose of this study, the focus is narrowed to wives claiming maintenance.

According to Section 125 explanation (b), a wife includes a woman who has been divorced
by her husband and has not remarried. The Supreme Court clarified in Savitaben Somabhai
Bhatiya v. State of Gujarat that only legally wedded wives are entitled to maintenance,
emphasizing that mere cohabitation does not confer the status of a wife.

While Section 125 is not influenced by personal laws, the validity of marriage is determined
by the parties' personal laws, as established in Yamuna Anantrao Adhov v. Anantrao Shivam
Adhav [5]

If a woman alleges bigamy under Section 494 of the Indian Penal Code but fails to prove it
during maintenance proceedings, her claim may be denied.

Husband's inability to perform marriage rituals does not absolve him of maintenance
liability, as the Supreme Court ruled that strict proof of essential rituals is unnecessary.

Interestingly, the wife's age is irrelevant for Section 125 applicability. Even a minor wife is
entitled to maintenance, despite the Child Marriage Restraint Act making it punishable to
marry a girl below 18 years old. However, the validity of such marriages is not affected by
the Act's contravention.

[5] (1969) 3 SCC 802

ESSENTIALS FOR APPLICABILITY OF SECTION 125 OF THE CODE
OF CRIMINAL PROCEDURE WITH REFERENCE TO WOMEN:

1. Sufficient Means of the Person from Whom Maintenance is Claimed: The individual from
whom maintenance is sought must possess adequate resources, not limited to tangible assets
but also encompassing the ability to earn a livelihood. Courts have ruled that even if the
husband is insolvent or unemployed, he is still obligated to provide maintenance as long as
he is able-bodied.

2. Neglect or Refusal to Maintain: The person from whom maintenance is claimed must have
either refused or neglected to provide maintenance, which can be evidenced through words
or actions. For instance, a husband's act of solemnizing a second marriage or keeping a
mistress in the same household would constitute neglect or refusal to maintain the first wife.
Additionally, if it's proven that the husband is impotent and unable to fulfill marital
obligations, this can also justify a wife's claim for maintenance.

3. Inability of the Wife to Maintain Herself: The wife seeking maintenance must be unable to
support herself financially. Section 125 aims to prevent vagrancy, so it applies only to wives
lacking the means to sustain themselves. However, the term "unable to maintain" does not
solely refer to absolute destitution but also considers the wife's relative status compared to
her husband's. It doesn't require her to be destitute or begging on the streets but rather
indicates that she shouldn't significantly lag behind her husband's standard of living.

NON-APPLICABILITY OF SECTION 125, CODE OF CRIMINAL

PROCEDURE:

Section 125 of the Code of Criminal Procedure does not apply under the following
circumstances:

1. Wife Living in Adultery: According to Section 125(4), if the wife is living in adultery, she is
not entitled to maintenance. This applies when the wife is in a quasi-permanent union with
another man, constituting clear adulterous conduct.

2. Refusal by Wife to Live with Husband Without Just Cause: Section 125(4) also stipulates
that if the wife refuses to live with her husband without sufficient cause, she forfeits the right
to maintenance. Any claim for maintenance under such circumstances would not be
sustainable.
3. Wife Living Separately by Mutual Consent: If the husband and wife mutually agree to live
separately, as per Section 125(5), the wife cannot claim maintenance. Furthermore, if
maintenance was provided previously and it's discovered that the separation was by mutual
consent, the maintenance may be cancelled. Even in cases of divorce by mutual consent,
where the wife has waived her right to maintenance, she cannot claim it at a later stage.

CLARIFICATION RELATED TO PERSONAL LAWS:

Section 125 maintains its secular nature and remains applicable regardless of any personal
laws, whether Hindu, Muslim, or any other. Under Muslim Personal Law, maintenance is
typically granted only until the period of "iddat," but Section 125 allows women to claim
maintenance even after this period until remarriage.

There is no conflict between Section 125 and the Hindu Adoption & Maintenance Act, 1956,
as they serve different purposes and cover different scopes.

While a husband may legally marry more than once under personal laws, the second
marriage can still be grounds for the first wife to seek maintenance and live separately. This
provision aims to uphold the dignity of women whose husbands engage in polygamous
relationships, irrespective of permission granted by personal laws.

In the landmark case of Mohammed Ahmed Khan v. Shah Bano Begum[6], the Supreme Court
emphasized the secular nature of Section 125, which transcends religious barriers and serves
as a protective measure for all women.

Questioning Section 125 based on personal laws undermines its straightforward and noble
purpose of providing social justice, detracting from its effectiveness in ensuring the welfare
of women.

CHALLENGES & REMEDIES:

Section 125 aims to achieve social justice but faces challenges hindering its effectiveness.
Here are some challenges and proposed remedies:

1. Misuse of Imprisonment Provision: Some men refuse maintenance and opt for one month's
imprisonment, defeating the purpose of protecting deserted women. To address this, the
imprisonment term should be increased for deterrence, with strict interpretation allowing for
imprisonment for each month of default. Courts should be empowered to extend sentences
for repeated defaults, and fines for breach should be doubled.

[6] 1985 (1) SCALE 767

2. Social Isolation of Deserted Women: Deserted women may face social isolation and lack
shelter. Rehabilitative provisions should be established, including government-operated
shelter homes for women awaiting maintenance enforcement. Enforcement agencies should
ensure timely collection and recovery of maintenance amounts.

3. Asset Concealment by Husbands: Husbands may transfer or hide assets to avoid

maintenance payments. Probation Officers should assess the husband's standard and social
status to enforce maintenance. Maintenance should be treated as a secured debt for deserted
women, and the burden of proving income should be on the earning husband, not the
deserted wife.

4. Property Ownership Dynamics: In India, properties acquired after marriage are often in
the husband's name. Legal provisions should ensure joint ownership of all assets acquired
during marriage, with equal division upon separation.

Addressing these challenges requires legislative amendments and robust enforcement

mechanisms to ensure Section 125 effectively protects deserted women from destitution and
vagrancy.

CONCLUSION:

The examination of Section 125 of the Code of Criminal Procedure has shed light on its
application within the context of India's socio-economic landscape and the lived experiences
of deserted women.

This study has meticulously scrutinized the legal provisions pertaining to women under
Section 125, identifying shortcomings in its implementation. Focused solely on women, the
study aimed to dissect each provision thoroughly.

The practical implementation of laws, including Section 125, has long been a challenge.
Through this analysis, the author has endeavored to pinpoint these obstacles and propose
remedies. By doing so, the aim is to ensure that the legislative intent is realized, and the
ideals of social justice enshrined in the constitution are achieved expeditiously.

Ultimately, the hope is that this examination will contribute to the enhancement of the legal
framework, particularly in safeguarding the rights and welfare of deserted women, thereby
advancing the cause of social justice in Indian society.

Reference: R.V. Kelkar’s, Criminal Procedure (6th edition (Reprinted),2016, Eastern Book Company)