Marital disputes are increasing in India and cases like dowry, divorce, maintenance, domestic violence are increasing in courts. Here we will discuss about the maintenance cases. The word ‘Maintenance’ is not defined in the Code of Criminal Procedure, 1973. It has been observed that whenever a woman approaches the court against her husband, she makes a maintenance claim. It is the responsibility of the husband to take care of his wife and children and even in the event of a dispute, the court orders the husband to give interim maintenance to the wife several times. Under Section 125 of the Criminal Procedure Code 1973, the wife claims maintenance from her.
Although this law provides for the maintenance of dependents including wife, children, parents, but here we will let you know here the topic of maintenance between husband and wife. Indian law entrusts the person with the responsibility of the maintenance of his wife, children and elderly parents. There are many decisions of the courts in relation to maintenance, in which a person is called social responsibility for the maintenance of his dependents.
Who will be entitled to maintenance?
Under Section 125 of the Criminal Procedure Code, the following people are eligible to receive maintenance.
- Wife who is unable to maintain herself.
- Minor child who is unable to maintain, whether the child is a religious or a transgressor or married or unmarried. If a child is unable to maintain himself due to any physical or mental disability or due to damage.
- Parents of the person who are unable to maintain themselves.
Is Strict Proof of Marriage required u/Section 125 CrPC for claiming Maintenance?
Supreme Court in Kamala and ors. v. M.R. Mohan Kumar
The Supreme Court in this recent case has reiterated the settled principle of law that unlike other matrimonial proceedings, a strict proof of marriage is not essential in claim of maintenance under Section 125 of CrPC and that when the parties live together as husband and wife, there is a presumption that they are legally married couple for claim of maintenance under Section 125 CrPC.
The Two-Judge Bench of the Supreme Court in view of the evidence and material available on record allowed the appeal holding that there was a valid marriage between the parties and moreover a strict proof of marriage was not a pre-requisite for claiming maintenance under Section 125 of CrPC
According to Section 125 of the Code of Criminal Procedure 1973 provides for the maintenance of a wife that (1) if a person with adequate means: (a) his wife, who is unable to maintain himself, or (b) his religion or wrongdoing Whether it is married or not to a minor child, who is unable to take care of himself, then take care of him.
The court may, while pending proceedings in relation to the monthly allowance for maintenance under this sub-section, direct such person to interim maintenance of his wife or child as the court may deem fit, the monthly allowance and such expenses of the proceedings to person to whom the court should direct from time to time.
Provided further that any application of monthly allowance and proceedings for interim maintenance under the second proviso shall be disposed of within such time as possible, sixty days from the date of service of such person. Under “wife” there is also a woman whose husband has divorced her or who has divorced her husband and who has not remarried.
(2) Any such allowance for maintenance or interim maintenance and from the date of the order of expenditure for the proceedings or, if such order is made, from the date of application for maintenance or interim maintenance and expenses of the action, as the case may be. Will be payable
(3) If any person who has been ordered fails without sufficient reason to comply with that order, then for each breach of that order, any such magistrate shall issue a warrant for the levy of such amount to be levied in such manner. Such person as is provided for levying fines and after the execution of that warrant the whole allowance for unpaid maintenance or interim maintenance as the case may be and the expenditure of the proceeding or any part thereof are ordered to be paid. The court may serve a sentence of imprisonment up to the time of repayment. Provided that no warrant shall be issued for the recovery of the amount due under this section until the application has been made to the court for the levy of that amount within a period of one year from the date on which it became due. Provided further that if such a person proposes to maintain maintenance on the condition that his wife stays with him and she refuses to live with the husband, the court may consider any grounds for the alleged refusal by him and such establishment Even if done, she may make an order under this section if it is resolved that there is an equitable basis for making such order. If the husband has married another woman or has made the other woman his mistress, this would be considered to be a justifiable basis for his wife’s refusal to live with him. The court may quash the order on the proviso that a wife, in whose favor an order is made under this section, refuses to live with her husband without sufficient cause or they are estranged from mutual consent.
The excuse taken by the husbands to avoid maintenance:-
If the wife is doing a job, it is often argued on behalf of the husband, because Section 125 of the Criminal Procedure Code 1973 states that the husband will provide sustenance to the wife who is unable to maintain herself. If the wife does a job, then in the maintenance case, the husband takes advantage that the wife is not incapable, as stated in the Act. The husband side tries to base the wife’s earnings. There are some cases in which the husband has taken the plea that the wife is capable of earning herself, so her maintenance application should be rejected.
The Supreme Court has an important decision in this matter. The judgment of Shailaja and others vs Khubanna SC 2017 states that the wife is capable of earning and the wife is earning, these two things are different. The wife does not lose her support simply because she is able to earn.
In the case of Rajesh v. Sunita and others, the Punjab and Haryana High Court held that it is the ultimate duty of a husband to take care of his wife and children, whether he has to beg, borrow or steal. In this case, the husband had not paid the maintenance to his wife for almost four years, after which the court sentenced him to 12 months. Apart from this, if it is proved on the part of the husband that the wife remains separated from him without any reason, then the courts while listening to the wife’s application for maintenance, consider this fact.
The High Court thus, while making reference to Apex Court’s judgment in Sunita Kachwaha and ors. V. Anil Kachwaha, noted that even if the wife was earning some amount that may not be a reason to reject her application for maintenance outright.
It was also stated by the High Court that as held by the Apex Court in a catena of decisions, the concept of sustenance does not necessarily mean to live the life in penury and roam around for basic maintenance. The wife is entitled in law to lead a life in the same manner as she would have lived in the house of her husband with respect and dignity.
That the husband is not entitled to contend that he is not prepared to pay any maintenance and the courts are not expected to accept the blatant refusal of the husband with folded hands. If the Family Court decides to deny interim maintenance to the wife or pay a lesser amount than claimed to the minor child, it can only be on legally permissible reasons and not on the strength of a memo filed by the husband.
Can Husband Claim Maintenance from wife?
Yes the husband can claim maintenance from the wife. The Courts have time and again remarked that maintenance is to be paid to husband only if he is incapable or handicap. In a recent case of Nivya V.M. v. Shivaprasad N.K., the Kerala High Court dismissed husband’s claim for maintenance from his wife holding that maintenance under Section 24 of Hindu Marriage Act, 1955 is to be paid to the husband only when he is able to prove any incapability or handicap.
The Court also observed that in absence of such circumstances as enumerated above, endowing maintenance on the husband would only promote idleness.
The Court also remarked that a husband seeking maintenance from the wife can be treated only as exceptional case as normally he has got the liability or obligation to maintain the wife and vice versa is only exceptional.
Steps involved in Maintenance case:-
- Hire an expert and experienced lawyer and file a maintenance petition/application before the concerned Family Court containing the facts of the case stating the circumstances on which the wife is claiming maintenance.
- The Ld. Judge of the Family court scrutinizes the petition and issues notice/summon to the husband against whom the wife has filed the Maintenance petition.
- The parties are directed to appear before the Court and Family court first try to reconcile/mediate them.
- If the reconciliation or mediation proceeding are successful; then the matter stands settled but if the mediation fails, then the Family court proceeds with the maintenance case on merits.
- The Family directs the opposite party to file a reply to the petition. The Family Court further asks both the parties to file a detailed income affidavit so that it can get information of income and liabilities of both the parties.
- The petitioner (almost the wife in every case) is directed to file the rejoinder to the reply filed by the opposite party/husband. At this stage the court decides the interim maintenance application of the petitioner.
- The court thus frames the issues involved in the case and ask both the parties to file evidence by way of affidavit.
- The petitioner is directed to lead its evidence by filing the relevant the relevant document, and by summoning all its witnesses.
- Thereafter the respondent/opposite party is directed to lead its evidence by filing the relevant the relevant document, and by summoning all its witnesses.
- The court orders for the final arguments and after hearing the arguments from the both the parties; the matter is decided by the court.
- The court finally passes the order/judgment where it may either dismiss the petition or allow the petition and directs the other party/respondent to pay monthly maintenance as directed by the court.
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