Right of Divorced Wife for Grant of Maintenance under Section 125 of the Code of Criminal Procedure, 1973

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The maintenance measures acquiesced by laws is not to punish a person for his past neglect or refusal, but to prevent vagrancy of those who cannot support or maintain themselves. The provisions of maintenance of the Code of Criminal Procedure are pertinent to persons belonging to all religions and have no affiliation with the personal laws of the parties.

According to the Supreme Court, any delay in maintenance to wife is equivalent to the violation of human rights. The Supreme Court has ruled that family courts cannot delay the grant of maintenance to a separated wife. It further added that there is no escape for a husband from the responsibility of giving sustenance money to his wife despite their exacerbate relations.

Legal provisions concerning the order for maintenance of wives and children come under section 125 of the Code of Criminal Procedure, 1973. As per Section 125(l) (a) of the Code , if any person having adequate resources neglects or refuses to maintain his wife who’s unable to maintain herself, then a Magistrate of the first class  upon proof, can order such person to make a fixed monthly allowance for the maintenance of his ex-wife. The maintenance has to be determined in accordance to the living standards of the person concerned which she enjoyed at the place of her husband. Here ‘ex-wife’ includes every woman who has been divorced by her husband or has obtained a divorce from her husband and has not remarried yet.  

Also, if a person is willing to maintain his wife in accordance with his civil obligation, then it will be counted as neither neglect nor refusal. If the husband is making payment of some amount to his wife but the amount is insufficient to meet her basic needs of life, then it is evidently a ‘neglect’ or refusal to maintain the wife within the meaning of Section 125 of the Code. The scheme of Section 125 does not get alerted as per the religion professed by a spouse. This law is a means of social justice of Criminal Procedure.

The Supreme Court has set a bench of 25% of the husband’s net salary to be paid as alimony to the estranged wife. The Court said 25% is a “just and proper” amount for alimony as husband might have to take care of the needs of his family, if he has remarried.

The section 125 states the wife asking for maintenance can be of any age—minor or major. It is mandatory for her to be a legally married woman. The legality of the marriage would be governed by the personal laws applicable to the parties. If there is any conflict between personal law and Section 125 of the Code, and then it is clear from the language of Section 125 that it prevails over the personal law. In case the legality of marriage comes into question, the applicant would have to prove the authenticity of marriage. A marriage solemnized by exchange of garlands is counted as invalid.

Persons entitled to claim maintenance:

According to Section 125(1) of the Code, the following persons are entitled to claim maintenance under convinced circumstances:
  • Wife – The maintenance allowance cannot be granted to every wife who is neglected by husband or whose husband has refused to maintain her. It can only be granted to a wife who is unable to maintain herself and not, to the one who is maintaining herself with some difficulty.
  • Maintenance means appropriate food, clothing and lodging. By the phrase ‘unable to maintain herself’, it is not meant that she should be absolute destitute and should be on the street, should beg and be in tattered clothes. The inability of the wife to maintain herself is a condition precedent to the maintainability of her application for maintenance.
  • Child - The word ‘Child’ is not defined in the Code. It means a male or female person who has not reached full age, i.e., 18 years as prescribed by the Indian Majority Act, 1875 and who is incompetent to enter into any contract or to enforce any claim under the law.
  • Father or Mother - If any person having adequate resources neglects or refuses to maintain his father or mother who are unable to maintain himself or herself then a Magistrate of the first class can order such a person to make a monthly allowance to them as their maintenance. The amount payable could be fixed by the Magistrate as he thinks fitting and it has to me paid from time to time as directed by him.

Interim maintenance:

During the pendency of the proceedings regarding the monthly allowance for the maintenance under Section 125(1) of the Code, the Magistrate can order such a person to make a monthly allowance for the interim maintenance to his wife, child or father or mother. The interim maintenance includes the expenses of the proceedings and others which the Magistrate considers reasonable. Such allowances has to be made to the person till the time directed by Magistrate.

Essential conditions for granting maintenance

  • Sufficient means to maintain - The person who has to make the claimed maintenance must have adequate means to maintain the person or persons claiming maintenance.
  • The expression ‘means’ used here, does not signify only the visible means like real property or definite employment but refers to the earning capacity of the person.
  • Neglect or refusal to maintain - The person from whom maintenance is claimed must have neglected or refused to maintain the person or persons entitled to claim maintenance. Neglect refers to the default or omission in the absence of a demand whereas ‘refuse’ refers to the failure to maintain or a denial of obligation to maintain after demand. A neglect or refusal to maintain might have happened by words or by conduct. Whereas it is the obligation of the claimant to prove the neglect or refusal by the person to make the maintenance.
  • Wife claiming maintenance must be unable to maintain herself- The Code is designed to prevent vagrancy and thus the requirement to pay maintenance would be applicable only in respect of persons who are unable to maintain themselves. Therefore, the inability of the wife to maintain herself is a condition precedent to the maintainability of her application for maintenance. Maintenance here means appropriate food, clothing and lodging.

Grounds on which the wife can be refused maintenance

  • The wife must not be living in adultery- If the wife is committing adultery i.e. lives in a quasi-permanent union with the man with whom she is committing adultery, then she is not entitled to receive any interim allowance or maintenance. She can’t even ask for expenses of proceedings.
  • Wife must not refuse without sufficient reasons to live with her husband- A wife is not permitted to receive any allowance for the maintenance from her husband, if she refuses to live with her husband for no reason. She must provide the court some sufficient reason for her refusal. The reason can vary from case to case considering the circumstances. Also, if the husband has tapered marriage with another woman or keeps a mistress, this would be considered as a just ground for her refusal to live with him.
  • The wife must not be living separately by mutual consent- A wife is not permitted to receive an allowance for maintenance from her husband if they both are living separately by mutual consent.  
While a divorced wife cannot be counted as a wife living separately by mutual consent as her current position is by virtue of change in status consequent upon the disbanding of the marriage. In the case of divorce by mutual consent if the wife has abdicated her right to maintenance, then she cannot later claim for maintenance.

For a divorce, where the marital relations have been terminated by an agreement, the wife would be entitled to claim maintenance from her ex-husband as long as she remains unmarried or is unable to maintain herself.

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