Concept of Maintenance of wife under Criminal Procedure Code (Cr.P.C.) 1973

Introduction:

The concept of maintenance in India is covered both under section 125 of the code of criminal procedure, 1973 (section 125), and the personal laws. The concept further stems from article 15(3) reinforced by article 39 of the constitution of India 1950. Under Indian Law, the term ‘Maintenance’ includes entitlement to food, clothing, and shelter, being typically available to the wife, children, and parents. The object of maintenance is to prevent immorality and destitution and ameliorate the economic condition of women and children.

Definition of ‘wife’ under section 125 of The Code

The code clearly does not define ‘wife’ but states that include women who are divorced by or has obtained a divorce from her husband and has not remarried. So, who all can claim maintenance under the definition of wife?

• Legally wedded wife or
• Divorced wife but not a re-married wife.

 The important part is that ‘wife’ can seek maintenance even if she has not initiated any proceeding under the personal law. Additionally, staying separate from the husband under justified grounds may not exclude her from the definition of ‘wife’ for the section.

Nature of Proceeding

Maintenance under section 125 of the code is a social legislation, which is meant to prevent vagrancy and provide immediate relief food, clothing, and shelter. The code was amended suitably in the year 1973 to include consideration of women’s inability to maintain as a ground to grant her maintenance. This was recreated by the horn able supreme court even in Bhagwan Dutt Vs. Kanta Devi[1]:

 The intention of the legislation is suitably covered by the nature of proceeding under section 125 of the code, which is of summary nature and is not meant to affect the civil rights of the parties. The strict standards of proof are not required under section 125 of the proceeding.

Condition from Maintenance

Under the provision of section 125, the burden lies upon the wife, i.e. the claims to prove that the burden, i.e. the other party, has ‘sufficient means’ and has ‘neglected or refused to maintain’ her and that she is ‘unable to maintain’ herself.

 If an individual is capable of earning, irrespective of whether he has the means or not it can be concluded that he has sufficient means. The onus then shifts onto the husband, to prove that he does not have sufficient means to provide the maintenance.

The phrase ‘unable to maintain herself’ is with reference to the means that were available to the deserted wife while she was living with her husband. An abandoned wife or divorced women need not be reduced to a destitute state before filing for maintenance for herself and her children. The test whether the woman is in a position to maintain herself in a similar as in her husband’s home.

Person entitled to Receive Maintenance

Maintenance may be granted to dependent children, parents, and legally wedded wives, including but not limited to a divorced spouse, mistress, illegitimate children, etc. in certain cases under personal law, the Indian courts have adopted a lenient view and granted the husband the right to receive maintenance. Such right, however, in conditional and typically conferred upon the husband, only if he is conferred upon the husband, only if he is incapacitated due to some accident or diseases and rendered incapable of earning a livelihood. Such an entitled is not available to an able person, doing nothing for a living or a ‘wastrel’.

The remedy under section 125 is speedy and inexpensive as compared to personal law. The provision relating to maintenance under any personal law is, however, distinct and separate from section 125. There is no conflict between both the legal provisions. A person is entitled to maintenance under section 125 despite having obtained an order under the applicable personal.

Quantum of Maintenance

Maintenance covers not merely food, clothing and shelter, but also includes other necessities. The quantum and type of necessities covered within the scope of maintenance may vary, depending on the status, financial position and number of dependents, etc. and is at the discretion of the court. Before passing an order under 125, the court does take cognizance of the amount of maintenance already ordered under the personal law. The reasoning is based on the premise that the wife is entitled to live as per the standards and status of her husband.

Conclusion

It is evident from the recent judicial decisions that the Indian courts have been progressively liberal in deciding cases pertaining to maintain cases pertaining to maintenance. The bone of contention however is whether a mistress can become entitled to receive maintenance merely from the factum of living with a married man, coupled with the dispute as to whether the bigamy is legally permissible. While it appears from the decisions passed under the personal laws that same way be possible, judicial decisions pertaining to section 125 continue to uphold the view that maintenance can be claimed only by a lawfully wedded wife.

[1] AIR 1975 SC 83