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Claimants, Grounds And Right Of Muslim Women

Maintenance is the process of maintaining or preserving someone. A state of providing financial support for a person’s living expenses or a support so much in need of. The term has been generally interpreted to include food, clothing and shelter. The dictionary meaning of the term maintenance is support or sustenance.
Maintenance is not defined under CrPC, it is defined under section 3(b) of Hindu Adoption and Maintenance Act ,1956
It includes:
  1. In all cases, provision for food, clothing, residence, education and medical expenses.
  2. In the case of an unmarried daughter also the reasonable expense of incident to her marriage.

S-125-128 of the code had made provisions for the maintenance of wife, children and parents. S-125 is a substantive provision conferring right of maintenance on certain individuals even though the code is a procedural law.

The court is to look into the possession of the property of both, the husband and the wife, ability of the husband to earn, conduct of the parties and other circumstances to decide the amount of maintenance. Before fixing the amount of maintenance the status of the parties and the standard of their life enjoyed by them, during the subsistence of marriage will have to be taken into consideration.


Sec-125 of CrPC- If any person having sufficient means neglects or refuses to maintain his wife, his legitimate or illegitimate minor children whether married or not, and his father or mother unable to maintain themselves, the magistrate of first class upon proof of refusal or neglect direct such person to make monthly allowances and pay the same from time to time.

Constitutional Validity:

  • Article 15 (3) of the Constitution states that nothing shall prevent state from making laws for women and children and therefore, Sec. 125of CrPC is enacted.
  • According to Art. 39 of Constitution, men and women equally have the right to an adequate livelihood.
  • Sec. 125 CrPC safeguards the rights of women, children and parents which are weaker sections of the society and therefore cannot be said to be arbitrary to Art.14.

  • Amendments: Sec-125 of Crpc was amended in the year 2001

    1. Ceiling of rs.500 was removed. (previously maintenance at a monthly rate not exceeding rs.500).
    2. Introduction of interim maintenance along with expenses of proceedings.
    3. Disposal of interim maintenance application within 60 days.

    Note- U/S 125 CrPC the first class magistrate may upon proof grant both interim and permanent maintenance and every claimant mentioned in the section can use this irrespective of caste and religion.

    Who may Claim maintenance:

    1. Wife:

      1. Any person’s wife who is unable to maintain herself can claim maintenance from such person even if she is a minor.
      2. Only a legally wedded wife can get maintenance and second wife and mistress can’t get maintenance.
      3. A woman is not entitled to claim maintenance merely because she had stayed together with a person.
      4. A wife who has been divorced and has not been remarried is entitled to maintenance.

        • Strict proof of marriage should not be a precondition for maintenance under sec-125 of CrPC held by HC of Uttarakhand in the case of Kamala Devi V. state of Uttarakhand [1].
        • The SC held in Chanmuniya V. Virendra kumar singh[2] that a when a man and a woman have been living together as husband and wife for reasonably long period of time , and strict proof of marriage shouldn’t be a precondition for maintenance U/S 125 CrPC.
        • Kamala & Ors V. Mohan kumar [3] The SC held that proceeding U/S 125 CrPC are summary in nature. It reiterated the law laid down in Chanmuniya V. Virendar singh[2].
        • Second wife is also entitled to maintenance- SC held this in the case of Badshah v. Urmila Badshah Godse [4] that victims of a bigamous marriage are entitled to maintenance.
        • MUSLIM WOMEN are also ENTITLED to claim maintenance U/S 125 of CrPC
        • SC in the Landmark judgement of Mohd. Ahmed khan V. Shah Bano Begum [5] held that muslim women are entitled to maintenance U/S 125 of CrPC even after Iddat period.
        • Shabana Bano v. Imran Khan [6] In 2009 SC reiterated the principle held in Shah Bano [5] case and said that Muslim women can claim maintenance as long as she doesn’t remarry even after completion of Iddat period.
           
    2. Children:

      1. Legitimate or illegitimate minor child, whether married or not unable to maintain itself can claim maintenance held by Allahabad HC in Ramachandra Giri V. Ram Surat Giri [7]
      2. Major handicapped child is entitled to claim maintenance held by Gujarat HC in YasinBhai V. Rizvanbanu [8].
      3. The liability of father will continue to maintain his married minor daughter till she attains majority, if her husband is a minor too.
      4. Unmarried major daughter is entitled to claim maintenance from father till she is married.
      5. Right of child to claim maintenance from father is independent from that of the mother.
         
    3. Parents:

      1. A person has to maintain his father or mother who are unable to maintain themselves
      2. Such persons include step father or mother Or Adoptive parents.
      3. A married daughter may also be held responsible for maintaining her parents.
         
    Vijaya manohari Arbat v/s Kashirao Rajaram sawai [9] SC in this case said that married daughter is also liable to pay maintenance.

    Conditions for granting maintenance:

    1. For being entitled for maintenance u/s 125 CrPC the applicant must be unable to maintain himself/herself.
    2. The respondent against whom maintenance is claimed must have sufficient means to maintain the applicant.
    3. A wife claiming maintenance-

      1. Must not be living in adultery
      2. Must not have refused to live with her husband without sufficient reasons.
      3. Must not by living separately by mutual consent.

    Defences:

    1. If the above mentioned conditions are not satisfied
       
    2. Where application is made by wife, Husband can contest that:
      1. She is living in adultery with another person
      2. She refuses to stay with him without sufficient reasons.
      3. They are living separately by mutual consent.
      4. If the civil court passes order in above cases
      5. If such woman remarries.
         
    3. Father can take the ground that there is no physical or mental disability if the application is made by a major son.
       
    4. Father can take the ground that husband of the minor daughter has sufficient means to maintain herself, the application is made by a minor daughter.

    Quantum of maintenance: Considering the facts and circumstances of the case the magistrate may grant any amount of maintenance.

    This maintenance can be altered or cancelled with respect to change in circumstances.

    Conclusion:
    1. Sec-125 CrPC is a secular law and any citizen can use it irrespective of caste & religion.
    2. Only women, children and parents can claim maintenance under this section.
    3. Major son is entitled only if he is physically or mentally disabled.
    4. Parents can claim maintenance from natural or adoptive children.
    5. The remedy under sec-125 CrPC is speedy and inexpensive as compared to personal laws.
    6. Magistrate is empowered to grant both interim & permanent maintenance under this section.
    7. Maintenance granted can be altered or cancelled with respect to the change in conditions.

    End Notes:
    1. (2013), Crl Mis Application (C-482) No.828 of 2010
    2. (2011) 1 SCC 141
    3. (2018) SCC online SC 2121
    4. (2014) 1 SCC 188
    5. AIR (1985) SCR (3) 844
    6. (2009) 1 SCC 666
    7. (ALL)-1982-1-62
    8. (2011), Appeal no: 2593 of 2011
    9. AIR (1987) SC 1100

    Written By: K. Umamaheswar

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