Family Law Presentation

Secular Laws on Maintenance

Code of Criminal Procedure

Sections

125- Basic rules on who owes maintenance, who receives it, duration for which it is given, how the
amount is determined etc. It also includes the definition of minor and wife.

126- Procedure for filing case under 125. Rules regarding jurisdiction, evidences etc.

127- Conditions under which magistrate can modify, vary or rescind the maintenance of a party.

128- Enforcement of maintenance.

Supporting Constitution Articles – Art. 15(3) and 39.

Right to livelihood and equal opportunities.

Section 125
Maintenance is given to –
a. Wife.
b. Minor child.
c. Major child with physical or mental disabilities except married daughter.
d. Father or mother.

Definitions
Minor – Defined as under Indian majority act.

Wife – Includes a woman who has been divorced by, or has obtained a divorce from, her husband and
has not remarried.

Other Rules
Magistrate is given jurisdiction in these cases to ascertain the maintenance.

The act allows the payment of interim compensation during pendency of trials.
Married minor child can claim maintenance from father if magistrate convinced husband doesn’t earn
enough.

Wife can’t get maintenance if she chooses not to live with husband without sufficient reason or by
mutual consent. If there are reasonable grounds, she will be entitled for maintenance.

Section 126
Cases are taken up in the district in which:

he or his wife reside

or

the place where they last resided together.

Evidences may be reviewed ex-parte (without the party who has to pay maintenance) if magistrate
feels that he is deliberately avoiding proceedings.

Otherwise, it is necessary for him or his pleader to be present.

Orders will be set aside for good cause if an application is made within 3 months of the order.

Section 127
Magistrate may alter, vary or rescind the maintenance taking the following into consideration –

Change in circumstances of the parties

Decision of a civil court

The woman remarries

The maintenance has been claimed under personal laws

The woman surrenders her rights to maintenance.

Cases
Bai Tahira v. Ali Hussain Fissalli

 Second wife in a Muslim marriage neglected and divorced

 Compromise terms include a flat, Mehr, Iddat and wife surrenders right to maintenance
 Section 125 aims to ameliorate the economic condition of neglected wives and discarded
divorcees.
 Husband argues based on sec. 127 where he had paid Mehr and Iddat under personal law.
  Rejected as there must be rational relation between sum paid under personal law and its
potential as provision for maintenance.

Shamima Farooqui v. Shahid Khan

 Husband Committed cruelty against wife by asking her family for a car as dowry and also
assaulted her.
 The wife tried to maintain the marital ties but when it was irretrievably broken, she filed a
case under sec.125.
 Maintenance was first claimed for Rs. 4000 but later it was cut down to Rs. 2000 when
husband retired.
 Court held that the maintenance should be Rs. 4000.
 Maintenance does not mean mere survival of wife.
 She needs to be given enough money so that she can live with the same dignity which she
would have had at the matrimonial home.
 The husband cannot claim non payment saying he is earning less as long as he has the
capacity to earn.

Badshah v. Urmila Badshah Godse

 Wife was not aware of husband’s first marriage.

 False representation to the wife that he was single and competent of marriage.
 His misdeeds cannot be used to deprive the wife of her maintenance even though she isn’t his
legally wedded wife.
 This case establishes the right to claim of second wife under Hindu law if she is kept in dark
about the first marriage.