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A Heinous crime “RAPE”

The crime of rape has shaken the whole of India and this crime has emerged as an epidemic for Indian society. Several attempts are being made by the state and Indian legislation to stop this crime. In society, the crime of rape has come as a curse; efforts are being made to stop rape at various social levels. Not only adult women are victimized by crime like rape, but also the young girls are suffering from heinous crime like rape.

In the case of Shri Budhwar Gautam vs. Shubhra Chakravarti AIR 1996 SC 922, it has been held by the Supreme Court that the crime of rape is a crime against human rights. This violates the right to live. 

There are two sections in the Indian Penal Code regarding the crime of rape. Section 375 and Section 376 of IPC, 1860.

 Section 375 of the Indian Penal Code in relation to the definition of rape. This section provides a clear explanation of rape. Rape is a crime in which the consent of the woman with intercourse is questioned. Sexual intercourse is also defined under this section. At one time, penetration of the penis into the vagina was considered sexual intercourse, but changes were made to this definition over time.

In 2013, revolutionary amendments have been made under this section. Different definition of sexual intercourse is given. Sexual intercourse under Section 375 of the Indian Penal Code can be done as follows- A man –

(a) – enters his penis at any stage in a woman’s vagina, her mouth, urinary tract or anus, or by any of his Provides with another person or

(b) – any such object in a woman’s vagina, urinary tract, or anus, it covers any part of the body which is not gender to any extent or it does so with any other person Provides or

(C) – Hand wares any part of a woman’s body in such a way that a woman’s vagina, anus, urinary tract can be penetrated into any part of the body or does it with any other person or

(d)  – He puts his mouth on a woman’s vagina, anus, urinary tract or does it with her or any other person.

Any such act is subject to seven conditions, which are mentioned under Section 375 of the Penal Code, and then it is believed that he has committed rape. From the above definition of sexual intercourse, it appears that the definition of sexual intercourse within the penal code has been greatly expanded in favor of the woman and putting the vagina to the mouth or even the finger will be considered rape but having such sexual intercourse is also a crime.

Those seven circumstances are

  1. Against the will of the woman.
  2. Without the consent of the woman.
  3. The consent of a woman when her consent is obtained by putting her or any person with whom she is interested, in fear of death or injury.
  4. With the consent of the woman when the man realizes that she is not his husband and has given the consent that she believes that there is another man with whom she is lawfully married or believes to be married.
  5. When the woman gives her consent, at the time of giving such consent, she talks about what she consents to due to maladministration or abstinence, or because of a noun or unhealthy substance given by the man personally through someone else. , Is unable to understand the nature and consequences.
  6. With or without the consent of the woman when she is under 18 years of age.
  7. When a woman is unable to communicate consent. When it is sexual intercourse with a woman according to the definition of sexual intercourse given above in seven circumstances, the crime of rape is committed.

In relation to the crime of rape, the definition is very broad because not only consent is not considered a crime, but how this consent is taken has also been taken into consideration. This consent intimidation, intoxication. If it is taken from a woman or a deformed mind or from a woman unable to give consent, then sexual intercourse with such consent becomes rape.

In relation to a minor, sexual intercourse with a minor woman who is less than 18 years of age is considered rape. Even if she had consented to sexual intercourse, she had clearly given such consent. Even after such consent. The accused shall be deemed guilty of rape if he has intercourse with a woman below 18 years of age.

In this case Lalta Prasad vs State of Madhya Pradesh AIR 1997 SC 1276 has this case. There was no evidence that the girl was under 16 years of age, she had sexual intercourse without her consent and hence it was held that the accused was not guilty of rape. What evidence can there be in the crime of rape? There is a lack of direct witness in the crime of rape. The court has to take utmost care regarding the evidence in the rape case and carefully evaluate, analyze the case. Injured marks on the genitals of a woman aggrieved by rape, blood stains on her clothes, and then informing her parents immediately after the incident, some facts which are helpful in proving the crime of rape, hence the decision Time these facts should be kept in mind.

In the case of Bhupendra Sharma v. State of Himachal Pradesh, the Supreme Court has also determined that evidence of rape victim can be sufficient in rape cases, her affirmation is not necessary.

Similarly, in the case of Sudhanshu Shekhar Sahu v. State of Orissa AIR 2003 AC 4684, it has been said by the Supreme Court that the accused can be convicted only on the evidence of the rape victim, but she is safe and reliable. FIR in rape is a prima facie first information report in rape cases required to be filed immediately or there is no strict rule. Due to the fact that they can be pending, only on the basis of delay, the prosecution case cannot be considered untrustworthy.

In Dildar Singh vs State of Punjab. In this, student was raped by a teacher in his charge. She did not tell this thing to anyone due to fear, but when she came to know that she became pregnant, after 3 months, she was forced to tell the whole incident to her mother. Thus after 3 months the First Information Report was filed. The Supreme Court considered it excusable. The rape FIR can be delayed for some reason and the court may consider it a reasonable cause and the delay can be ignored.

Rape of wife. In some recent cases, the topic of rape of wife has also come out. In some cases the Supreme Court has also considered the registration of rape FIR by the wife as valid, but in later cases it was overturned. The second exception to section 375 states that any woman who is the wife of a man. If she is maltreated by her husband or is subjected to some other sexual act, then in such a situation she cannot bring a case of rape.

 If she is less than 15 years of age, then in such a situation she can bring a rape case and if she was mated to a woman younger than 15 years and had any of the following seven circumstances then it would have become a crime of rape. .

The accused of rape will be male only. The first word under Section 375 of the Indian Penal Code is male. Prosecution of rape on a woman cannot be conducted by making a man aggrieved because the word male is used at the beginning of the definition of rape.

Punishment for Rape

Section 376 provided for seven years of jail term to life imprisonment to whoever commits the offence of rape.

Latest Amendments in Rape laws

It is most important to discuss here that the nationwide public outcry, in 2012, popularly known as Nirbhaya Case following the December 16 gang rape and murder in Delhi, led to the passing of the Criminal Law (Amendment) Act in 2013 which widened the definition of rape and made punishment more stringent.

Parliament made the amendments on the recommendation of the Justice J.S. Verma Committee, which was constituted to re-look the criminal laws in the country and recommend changes.

The 2013 Act, which came into effect on April 2, 2013, increased jail terms in most sexual assault cases and also provided for the death penalty in rape cases that cause death of the victim or leaves her in a vegetative state.

It also created new offences, such as use of criminal force on a woman with intent to disrobe, voyeurism and stalking.

The punishment for gang rape was increased to 20 years to life imprisonment from the earlier 10 years to life imprisonment.

In January 2018, an eight-year-old girl in Rasana village near Kathua in Jammu and Kashmir was abducted, raped and murdered by a group of men. The news of the shocking act led to nationwide protests and calls for harsher punishment.

This led to the passing of the Criminal Law (Amendment) Act, 2018 which for the first time put death penalty as a possible punishment for rape of a girl under 12 years; the minimum punishment is 20 years in jail.

Another new section was also inserted in the IPC to specifically deal with rape on a girl below 16 years. The provision made the offence punishable with minimum imprisonment of 20 years which may extend to imprisonment for life.

The minimum jail term for rape, which has remained unchanged since the introduction of the IPC in 1860, was increased from seven to 10 years.

The Supreme Court has ruled that sex on the pretext of marriage is rape and a blow to the honour of a woman.

A bench of Justices L Nageswara Rao and MR Shah in their recent judgement observed that rape offends a woman’s dignity and esteem, and if for the fact the victim and her rapist have already settled in their lives and taking care of their families, could not be considered a ground to have the crime be null and void. 

The court observed that such incidents were on the rise in modern society. 

“It tantamounts to a serious blow to the supreme honour of a woman and offends both her esteem and dignity.”

The judgement came on a case registered by a woman accusing a Chhattisgarh-based doctor of raping her in 2013. The woman, a resident of Koni, Bilaspur, was familiar with the accused since 2009 and had a love affair. 

The accused had promised to marry her and their families were in the know of this. 

The accused was, however, engaged to another woman while he had the affair with the victim. He later broke his promise to the victim and married the other woman with whom he was engaged. An FIR was lodged against the accused and he was convicted of rape. 

our Top criminal lawyers can help you in providing the top quality legal services that you expect. We represent our clients all over India in general and Delhi-NCR in particular.

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How succession is decided for the property of a Hindu woman who is deceased without a will

The Hindu Succession Act 1956 does not discriminate between Hindu men and Hindu women regarding any form of succession. This method is based on natural affection and scientific approach. It has been built by the Parliament of India on the basis of social harmony and equality. Under this Act, there is a separate scientific way of dividing the property of Hindu man in succession which is described under section 8 of this act.

Under the Hindu Succession Act 1956, the way a man is given rights in relation to succession to property. Similarly, if a Hindu woman is an intestate deceased, then in such a situation the rules of succession of her property have been determined under Section 15 of this Act and the order of heirs of the property of Hindu woman is mentioned under Section 16.

Section 15 of Hindu Succession Act, 1956

This is the second most important section of this Act. Under this section simple rules regarding succession of Hindu women are mentioned. After the passage of the Hindu Succession Act 1956, a Hindu woman has three types of assets.

  • Property received in succession from father or mother
  • Property received in succession from husband or father-in-law
  • All other types of property – as is the general rule, any Hindu person shall inherit the property received by him in succession and the property acquired by him.

He can devise his property anywhere. No law or rule prevents a person from making any will in relation to his property. Any Hindu man or woman can inherit his property anywhere and the offspring of a Hindu man cannot claim that he is entitled to inherit his property because any Hindu man or woman has absolute right. That he will devise his property anywhere. But if the Hindu man or woman does not die in respect of his property except by a will then the provisions of the Hindu Succession Act 1956 apply. Under these provisions separate rules have been prescribed for male and separate rules have been prescribed for Hindu woman. Under Section 15 of the Succession Act 1956, the rules for the right to property of a Hindu woman are described.

Under Section 30 of this Act, any Hindu woman can bequeath her property anywhere but she does not leave any will, then in such a situation, according to section 15, the succession of her property is decided. According to Section 15 of the Hindu Succession Act 1956, in the event of death of a Hindu woman, her property is devolved to the following persons-

1)  Son, daughter and husband

2)  Husband’s heirs

3)  Mother and father

4)  To the heirs of the father

5)  The order of succession of the property of any Hindu woman to the heirs of the mother is the same as the order of succession to the property of a Hindu male.

The property is first devolved to son, daughter and husband. If the dying Hindu woman does not have a son, daughter and husband, in such a situation the property is devolved to the heirs of the husband. If the husband’s heir is also not available, then the property of the dying Hindu woman is devolved to her mother and father. If the mother and father are also not available, then the fourth heir is the heir to the father. If the father does not have an heir, in such a situation the fifth heir is the heir of the mother.

Certain features under this section, if any property is inherited by a Hindu woman from her parents, in the absence of the son or daughter of the deceased, the above heirs will be devolved to the heirs of the father and not to the order. Similarly, property received from husband or father-in-law will be devolved to the heirs of the husband if there is no son or daughter of the deceased. In this section, an attempt has been made to judge the property from which people get the property. The first succession is that of the son and daughters. If the son and daughter are not available, in such a situation, the property received in succession is devolved to those people from where that property is received by a Hindu woman.

For example, a Hindu woman has received a piece of land in succession from her father-in-law, now no child of this Hindu woman is available and there is also no objection to the child, in such a situation, the property obtained from the father-in-law does not belong to the husband. In the event of in-laws heirs will be devolved.

In the event of a Hindu woman receiving the property from the husband, the heirs of the husband will be devolved.

In the event of inheritance from her father, the heirs of the father will be devolved, but if a property is acquired by a dying Hindu woman herself, the rule for her property in such a situation would be that first of all the property. Succession will be devolved. After that, the second succession will be devolved, followed by the third answer will be devolved to the officers. The first heirs exclude the second heirs.

Under this Act, a Hindu woman’s son and daughters mean the son and daughter received from her womb and the sons and daughters adopted by her husband. If a Hindu woman has 2 sons and their two fathers are different, in such a situation, both her sons will get the property of the Hindu woman. This clause does not apply in such a situation if her step-son means that if her husband has given birth to a son or daughter from another woman. Under the Hindu Adoption Act, when a husband or wife accepts an adoption, the wife also agrees in such a situation, if a Hindu man has adopted a son, then that adopted son will have the same inheritance in the property of the Hindu woman. Who has a son born from his womb.

In the case of Laxman Singh v. Krupa Singh AIR 1986 Supreme Court 1616, it has been pointed out that as far as the step-son is concerned, he does not fall under the extension of Section 15 (1) (a). In the case of Kampo Bai v. Deviram 1982 Revenue Decision 14 Madhya Pradesh, it has been said that under section (a) of section 15 (1), the reference to the daughters and daughters of the daughters is from their own daughters. Her husband’s other wife’s sons and daughters are not included. Step sons will not come under the subdivision and step daughters will also not come.

The heir of a Hindu woman is firstly her sons, daughters and husbands but here the situation of husband is entangled. That is, sub-section 2 of section 15 provides that if a Hindu woman has inherited the property and has no son or daughter, then in such a situation and the property is devolved to the heirs of the same person. Property received in succession. For example if a woman inherits any property from the father in succession. The woman has no children and does not adopt any adoptions and dies intestate. Now in such a situation, the inheritance which she received will be devolved to the heirs of her father and not to her husband.  It simply means that the heirs of the party from whom the property is received in succession will be devolved only.

In Radhika Mehta v. Anurag Mehta 1994 (5) Supreme Court 761 it is stated that if the intestate Hindu woman had inherited the property from her mother and maternal grandfather, then the daughter of the deceased would inherit it and her husband in section 15 (2 ) Shall not acquire property in succession as per the provision of (a). According to the nature of this section, the husband will not inherit the property left by his wife in the condition where his wife held the property from her father. The husband will inherit the property in the same circumstances in which the property was either given by him to the wife or was earned by the wife herself.

In this article we have discussed the succession of property under Hindu Succession Act, 1956. If you have any query or you want an experienced civil lawyer for your property matter; call us on our number reflecting on our website or fill the query form. Our team of best civil lawyers will guide you. Our team of civil lawyers has vast experience and professionalism. They spend ample of time while researching, drafting. Our law firm has a team of experienced civil lawyers that works together to get fruitful results and decision of the court in their favor. Our Law firm is well known for handling civil litigation. Our civil lawyers provide best legal solutions to resolve the client’s problems. That is why Legalmax is distinguished from other legal firms.

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Laws Relating to Contempt of Court

The concept of contempt of court is several centuries old. In England, it is a common law principle that seeks to protect the judicial power of the king, initially exercised by him, and later by a panel of judges who acted in his name. Violation of the judges’ orders was considered an affront to the king himself. Over time, any kind of disobedience to judges, or obstruction of the implementation of their directives, or comments and actions that showed disrespect towards them came to be punishable.

The Contempt of Courts Act, 1971 is based on the recommendations made by the Sanyal Committee and the Joint Select Committee.
According to the Contempt of Court Act, 1971 contempt of court means showing disrespect for the dignity and rights of a court. The Contempt of Courts Act, 1971 is intended to maintain the dignity and importance of the Court.

The powers associated with contempt help judges to discharge their duties without fear, partiality and feeling.

What are the kinds of contempt of court?

The law codifying contempt classifies it as civil and criminal.

  1. Civil contempt is fairly simple. It is committed when someone willfully disobeys a court order, or willfully breaches an undertaking given to court.
  2. Criminal contempt is more complex. It consists of three forms:

(a) Words, written or spoken, signs and actions that “scandalise” or “tend to scandalise” or “lower” or “tends to lower” the authority of any court

(b) Prejudices or interferes with any judicial proceeding and

(c) Interferes with or obstructs the administration of justice.

Constitutional Background:

Article 129: empowers the Supreme Court to punish for contempt of its own.

Article 142 (2): This Article enables the Supreme Court to investigate and punish any person charged with contempt.

Article 215: Enables the High Courts to punish themselves for contempt.

Other issues related to contempt:

Article 19 of the Constitution provides freedom of speech to every citizen of India, but the Contempt of Courts Act, 1971 has curbed against the functioning of the court.

The law is very subjective, so the penalty of contempt can be used by the court to suppress the voice of the person who criticizes it.

Provision of penalty for contempt of court:

The Supreme Court and the High Court have the power to punish for contempt of court. This penalty can be a simple imprisonment of six months or a fine of up to Rs 2000 or both.

In 1991, the Supreme Court ruled that it had the power to punish not only himself but also in contempt cases of High Courts, Subordinate Courts and Tribunals all over the country.

The High Courts have been empowered to punish for contempt of subordinate courts under Section 10 of the Contempt of Courts Act, 1971.

In a recent judgment Supreme Court held that Ranbaxy promoters Malvinder and Shivinder Singh guilty of contempt for violating its order that had asked them not to divest their shares in Fortis Healthcare Limited.  

A bench, comprising Chief Justice Ranjan Gogoi and Justice Deepak Gupta, held them guilty of contempt of court and said that they had violated its earlier order by which the sale of their controlling stakes in Fortis Group to Malaysian firm IHH Healthcare was put on hold.

 The Japanese firm had filed a contempt petition against them, alleging that execution of their arbitral award had been in jeopardy as the Singh brothers disposed of their controlling stakes in the Fortis Group to the Malaysian firm.

Even if a Central Government or a State Government refuses to comply with or execute the order passed by the Hon’ble High Court, then in that case, the aggrieved person can file a contempt petition for contempt of Court in the high Court against the concerned department and officials. You have to hire an experienced lawyer having deep knowledge of the contempt proceedings.

In a recent decision of the Supreme Court in Re Vijay Kurle decided on 27th April, 2020 in Suo-Moto Contempt Petition (Criminal) No.2 of 2019 it has been reiterated that “Parliament has not enacted any law dealing with the powers of the Supreme Court with regard to investigation and punishment for contempt itself…section 15 is not substantive provision conferring contempt jurisdiction and therefore is only a procedural section especially in so far as Suo-Moto contempt are concerned”.

In Para 30 of the aforesaid decision, a three judges bench decision of the Supreme Court in Pallav Sheth versus Custodian was perfunctorily dealt with bypassed by stating:

“this court in that case was only dealing with question whether contempt can be initiated after the limitation prescribed in the contempt of courts Act has expired and the observation made therein have to be read in that context only…. It, however, went on to hold that providing the question of punishment or a period of limitation would not mean that the powers of the court under Article 129 have stultified or abrogated. Without commenting one way or the other on Pallav Sheth’s case (Supra) it is clear that the same has not dealt with power of this court to issue Suo-Moto notice of contempt”.

In Para 31 the Supreme Court said that “in view of the above discussion we are clearly of the view that the powers of Supreme Court to initiate contempt are not in any manner limited by the provision of the Act”.

The 1971 Act is a composite legislation pertaining to High Courts and the Supreme Courts both. Section 15 and 19 of the Act specifically mentions the Supreme Court and prescribes the manner of taking cognizance and right to appeal.

Legalmax’s Supreme Court and High Court lawyers are well experienced and keep their knowledge updated with the recent judgments and amendments in the laws. Our lawyers have exceptional skills and knowledge to handle contempt cases. Anyone can contact us directly through mail or by calling us on the number reflecting on our website for his/her contempt matter. We have a team of best lawyers representing clients across the country.

 

 

 

 

 

 

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HIGHER STUDIES OF DOCTORS CANNOT BE DETERRED BY ANYONE, DELHI HC GRANT RELIEF TO DNB GENERAL MEDICINE & ORTHOPEDIC SURGEON ASPIRANT.

The Delhi High Court has allowed the plea filed by Legalmax’s Advocate Mr. Shakti Narayanan. Hon’ble High Court allowed this plea of the doctors and has issued directions to the National Board of Examination to freeze the seats allotted to the doctors and also directed NBE not to carry forward the allotted DNB seats of the doctors in second round of counseling so that they can pursue DNB General Medicine & Orthopedic Surgeon (Broad Specialty) course respectively.
The observation was made by the Delhi bench of Hon’ble Justice Mr. Jayant Nath during a hearing of the Writ Petition filed by the doctors seeking directions from the court to direct Medical Superintendent of their department to give study leave and relieving order and further direction for National Board of Examination to freeze their DNB allotted seats.
Via the petition, the Petitioners submitted and informed the court that they are MBBS doctors working on regular basis in department of Aruna Asif Ali Govt. Hospital, 5-Rajpur Road, Delhi-54 under the Ministry of Health and Family Welfare in the State of Delhi which is a Government organization. Since they wanted to pursue Post Graduate Course in Medical Service, they participated in the competitive examination National Eligibility Cum Entrance Test-PG 2020 and ultimately, they had been selected by National Board Of Examination for admission to the course of Post Graduate in DNB sponsored General Medicine (Broad Specialty) & Orthopedic Surgery respectively. Accordingly, the allotment order was given by the National Board of Examinations, according to which, the petitioner was asked to report to the allotted Institution on 31.08.2020.
In anticipation of such a selection, the petitioners had written an application to the Medical Superintendent of their department to provide them relieving order and study leave for joining their respective courses. However, it was not accepted. As a result, the petitioners were not able to join the allotted Institution till date for the admission to DNB course, for which they were selected. Therefore, in this regard, they had then mailed an application to the National Board of Examination to extend their joining by six weeks but the same was also rejected by National Board of Examination.
Aggrieved, the petitioners had moved the court seeking relief. In response to the petition, Advocate Shakti Narayanan contending on behalf of the petitioners submitted that the Petitioners had taken due permission and No Objection Certificate from the Competent Authority before the counseling and it was clearly mentioned in the No Objection Certificate that if they are allotted a seat during the sponsored DNB counseling 2020, they shall be relieved from the parent department for the duration of Post-Graduation Course and shall also be given the salary as per rules from the parent department. However, contrary to the assurance and the No Objection Certificate the Competent Authority has not so far relieved the Petitioners as a result of which they are unable to join their Merit Sponsored DNB seats. Advocate Mr. Shakti Narayanan argued the matter and added that the Petitioners are estopped by National Board of Examination from their right to join Merit Sponsored DNB seats despite the fact that the Petitioners have already paid the course fee of Rs.1,25,000/-(Rupees one lakh twenty five thousand only) with a view to freeze their allotted seats.
Learned Advocate Mr. Shakti Narayanan submitted that any further delay by the Competent Authority in sanctioning the study leave and relieving the Petitioners, shall result in the Petitioners losing their seat in the PG Course at the respective hospitals.
In response to the petition, the Counsel contending on behalf of National Board of Examination submits that no such kind of NOC has ever given to the petitioners.
After hearing the submissions from both sides, Hon’ble Justice Mr. Jayant Nath noted that chance of studying higher specialty course comes after a great deal of struggle. Hon’ble Justice noted the submission of the petitioners’ counsel that the DNB sponsored training will be another crown to Petitioners. The Counsel Mr. Shakti Narayanan further added that this Petition is an illustration of Petitioners battling for their right. Petitioners are MBBS doctors serving the humanity. He further added that in the field of Medicine, we need more qualified people with updation that alone will help the Society at large, as they can bring so many successes in the field of Medicine for the benefit of humanity.
Further, the Hon’ble Justice Mr. Jayant Nath while disposing of the petition issued a set of directions to the National Board of Examination to freeze the DNB seats allotted to the Petitioners and also directed NBE not to carry forward the allotted seats of the Petitioners in second round of counseling. Hon’ble Justice further directs the Medical Superintendent of Aruna Asif Ali Govt. Hospital who is the first respondent herein to allow study leave of the Petitioners and relieve them to join their sponsored DNB allotted

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Maintenance Right of A Woman under Section 125 of CrPC

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.

  1. Wife who is unable to maintain herself.
  2. 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.
  3. 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:-

  1. 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.
  2. 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.
  3. The parties are directed to appear before the Court and Family court first try to reconcile/mediate them.
  4. 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.
  5. 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.
  6. 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.
  7. The court thus frames the issues involved in the case and ask both the parties to file evidence by way of affidavit.
  8. The petitioner is directed to lead its evidence by filing the relevant the relevant document, and by summoning all its witnesses.
  9. Thereafter the respondent/opposite party is directed to lead its evidence by filing the relevant the relevant document, and by summoning all its witnesses.
  10. The court orders for the final arguments and after hearing the arguments from the both the parties; the matter is decided by the court.
  11. 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.

Our Law Firm deals with varieties of maintenance cases and complex family laws issues. Our integrity and diligence makes winning combination. When you are choosing the best maintenance lawyer or family law lawyer, in this situation you can completely rely on our Legal Firm.

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