at a glance proceeding under Section 125 of the Criminal Procedure Code 1973

 

proceedings under Section 125 Cr.P.C

 

 

Introduction

CHAPER-IX contain sec-125 to 128 cr.p.c laydown the provision relating to the maintenance of wives , children and parents

Nature of provisions u/s 125 CrPC is a social justice legislation. Under Section 125, any of the following persons can claim maintenance.
(a) wife, 
(b) children, 
(c) parents,

 Who are unable to maintain himself or herself

they can claim maintenance by filing an application before the Magistrate.

 

Sec-125 of code of criminal procedure code

 

Person entitled to maintenance

 

		WIFE		CHILDRENS (LEGITIMATE OR ILLEGITIMATE)		PARENTS (FATHER  & MOTHER)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Can a second marriage wife get maintenance

The Code clearly does not define ‘wife’ but states that it includes women who is divorced by or has obtained divorce from her husband and has not re-married.

So, under the definition of wife

·         Legally wedded wife

·         Divorced wife but not a re-married wife

Can claim maintenance u/s-125 cr.p.c.

 

A woman is considered as the “wife” only if her marriage to the man is legally valid. For Hindus, the second wife cannot claim maintenance because a second marriage is forbidden by law and is not recognised as being valid.

A woman is considered as the “wife” only if her marriage to the man is legally valid.

The second wife is entitled to claim maintenance only if the husband concealed his first marriage from her.

Word ‘wife’ includes divorced wife. However, if second wife has not even been married she could not be divorced and second wife cannot claim to be wife of her husband unless it is established that husband was not earlier married to another woman. Divorced woman continues to enjoy status of 'wife' for claiming maintenance u/s 125 CrPC. { D. Velusamy vs. D.Patchaiammal, AIR 2011 SC 479}

In the case of, Mallika and Anr v. P Kulandi , it was held that in case the husband misrepresented his first wife’s death, his second wife, would have the right to maintenance

 

Can a earning wife entitled to maintenance

 

 

Merely because wife was earning something, it would not be a ground to reject her claim for maintenance u/s 125 CrPC. See : Sunita Kachwaha Vs. Anil Kachwaha, AIR 2015 SC 554

Earning wife entitled to maintenance from her husband u/s 125 CrPC : Where the husband had placed material to show that the wife was earning some income, it has been held by the Hon’ble Supreme Court that it is not sufficient to rule out the application of Sec. 125 CrPC. It has to be established that with the amount she earned, the wife was able to maintain herself. Whether the deserted wife was unable to maintain herself, has to be decided on the basis of the material placed on record. Where the personal income of the wife is insufficient, she can claim maintenance u/s 125 CrPC. The test is whether the wife is in a position to maintain her in the way she was used to in the place of her husband. The factual conclusions of the court that the wife is unable to maintain herself cannot be interfered with in the absence of perversity. See : Chaturbhuj Vs. Sita Bai, AIR 2008 SC 530

Can a muslim wife get maintenance u/s 125 cr.p.c.

 

A muslim women can claim maintenance either through muslim law or through cr.p.c..

 

Mohamad Ahmad Khan vs shah Banu Begam ,AIR 1985

 

Mohd. Ahmed Khan v. Shah Bano Begum (1985 SCR (3) 844), commonly referred to as the Shah Bano case, was a controversial maintenance lawsuit in India, in which the supreme court delivered a judgment favoring maintenance given to an aggrieved divorced Muslim woman. Supreme Court concluded that "there is no conflict between the provisions of section 125 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." The Supreme Court invoked Section 125 of Code of Criminal Procedure, which applies to everyone regardless of caste, creed, or religion. It ruled that Shah Bano be given maintenance money, similar to alimony. The Court also regretted that article 44 of the Constitution of India in relation to bringing of Uniform Civil Code in India

In Shamima Bano vs Ashraf Khan (2014) 12 SCC; Denial Latifi vs Union of India (2001) 7 SCC; Khatoon Nisha vs State of U.P. (2014) 12 SCC; it is held by the supreme court of India that the Magistrate could exercise power under section 125 of the code for grant of maintenance in favour of divorced muslim woman.

A divorced Muslim wife can claim maintenance even if the iddat period has passed, but she must not be remarried. 

A Muslim woman can claim maintenance either through Muslim law or through the CrPC. The two laws are very different and are dependent on different conditions.

Muslim Law: For Muslims, the main law on maintenance is The Muslim Women (Protection of Rights on Divorce) Act, 1986(MWPRD Act). This law provides maintenance for women and children ONLY after a divorce. The duty to provide maintenance for her future is on the husband and must be made during the iddat period, explained below.

After this period, if the woman is unable to maintain herself, then a Judge may even ask her family members to pay maintenance.

CrPC: A Muslim wife may ask for maintenance through section 125 of the CrPC at any time. The period of giving maintenance is not just during the iddat period but until the judge thinks appropriate.

Although there exists a separate Muslim law that provides maintenance to divorced Muslim wives, you have the choice to approach a family court under section 125 CrPC. This choice is always available to you irrespective of what your religious laws say. Consider the following differences while you make a choice as to which law you want to proceed under