Sections 125 to 128 of Code of Criminal Procedure deals with Maintenance. Maintenance to Wife, legitimate or illegitimate minor children and to the Parents are discussed in Section 125 of Cr.P.C. while Section 126 deals with jurisdiction of the Court, Section 127 explains the situation pertaining to change in circumstances and Section 128 calls for enforcement of the Order passed by the Court.
Generally, Maintenance is considered by the Court on two broad topics; Interim Maintenance and Permanent Maintenance. When a Magistrate Court receives a Petition for permanent and interim maintenance, the law mandates the Magistrate to dispose of the interim maintenance petition within 60 days. However, with the backlog of cases, practically disposing of within the statutory period is arduous task for the Magistrate. Not only that even for allowing an Interim Maintenance Petition the Magistrate has to hear both sides’ arguments and only thereafter the Order was passed on merits.
Decoding Section 125 of Cr.P.C.
An able bodied person who neglects his wife or legitimate or illegitimate minor child or physically / mentally impaired major child or his parents and who have no sufficient means or resources to maintain herself or himself, the Magistrate upon proof of such neglect / refusal to maintain, can make an order to pay monthly maintenance to the Applicant.
Even otherwise, if required to be, pending an original petition, the Magistrate can also direct the Respondent to pay interim monthly maintenance. Such interim maintenance petition be disposed of within 60 days from the date of filing of the same.
Monthly maintenance or interim monthly maintenance shall be paid from the date of order or from the date of filing of the petition as decides by the Court which hears an Application.
Provided the Respondent fails to obey the order passed by the Court, the Court can issue a Warrant of Arrest and jail him as long as he pays the maintenance money or to that extent he paid he would be imprisoned for the remaining amount.
No Warrant shall be issued by the Court without having received any Application from the petitioner indicating the dues payable by the Accused within a period of a year when it became due.
Provided the Husband is willing to maintain his Wife [if she come and live with him], the Magistrate may consider any ground that would prevent the Wife to live with the Husband such as the Husband already married a woman or treats the Wife as concubine or subject her into cruelty and such similar things.
If the Wife lives in adultery or she has not given sufficient explanation / proof in support of her neglecting her Husband then the Wife does not deserve any maintenance from her Husband.
Whereas the Wife lives separately by mutual consent or lives in adultery or having not provided sufficient reasons for her neglect, the Court, if ordered maintenance, can cancel the same.
Points to remember: Wife includes a Divorcee – either she obtains a divorce from her Husband or her Husband secured a divorce from her.
Decoding Section 126 of Cr.P.C.
The place of jurisdiction shall be the place where the Respondent resides or the Petitioner resides or the place where both resided together after their marriage. Otherwise the usual Summons Proceedings would take place as far as Section 125 Cr.P.C. is concerned. Evidences shall be recorded in the presence of the Respondent, if he is dispensed with [from his personal appearance] then in the presence of his Advocate.
Otherwise in circumstances like; when the Respondent is wilfully neglecting Court appearance or avoiding service of summons, the Court may set him exparte and pass maintenance order.
Provided within 3 months, if the Respondent appears and gives convincing representation in the Court to set aside the Order, the Court may set aside the Order passed by it by fixing a cost to be paid to the Petitioner. Section 125 of Cr.P.C. allows the Court to fix such cost as it deems fit and appropriate.
Decoding Section 127 of Cr.P.C.
Provided the Court has come to know that there is a change in circumstances of the case it has handled under Section 125 Cr.P.C. and on proof of such change it can alter / modify or revoke the order passed by it.
Consequent to the competent Civil Court ruling, the Magistrate Court may amend its own Order either by cancelling it or change it accordingly.
In circumstances like the Wife who receives a maintenance order in her favour and remarried after securing a divorce, the Magistrate, if convinced, can cancel such maintenance order passed by him.
And if under any personal laws the Divorced Husband has paid certain monies to the Wife and such amount was paid before or after passing of the maintenance order and in such case the Court can cancel that order.
When the Wife voluntarily surrendered her rights to maintenance or interim maintenance after her divorced then the Court can cancel the Order passed by it accordingly.
The Civil Court involving into recovery of maintenance money or dowry or anything for which it is prayed by the Plaintiff it must account the money paid by the party before passing of any decree.
Decoding Section 128 of Cr.P.C.
The Copy of the maintenance order in whose favour it is passed shall be given to such person free of cost. Any Magistrate in whose jurisdiction the Judgment Debtor [Respondent] resides can enforce the order upon proof of his living is provided by the person who moves such Court.