FAMILY LAW

Maintenance Petition

1.         Provision of Maintenance under Hindu Law

 

Section 125 of the Criminal Procedure Code (CrPC) and Section 18 of the Hindu Adoption and Maintenance Act make provision for maintenance for wife and children by the husband.

Under Section 125 Cr.PC If any person having sufficient means but neglects or refuses to maintain his wife, parents or children under Section 125 court can order for maintenance of wives, children, and parents.

·      Wife: If his wife is unable to maintain herself,

·      Minor: If his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

·      Child suffering from disability: If his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

·      Parents: If his father and mother, unable to maintain himself or herself.

2.        Maintenance Amount 

An upper limit of Rs 500 per month as maintenance had been fixed under the CrPC provision. This unrealistic and extremely low upper limit was removed by an amendment as late as 2001, and discretion was conferred on the magistrate to decide on the amount to be paid as maintenance. The amendment specifically mentioned that the magistrate could grant interim maintenance during the pendency of proceedings over monthly allowance.   

3.        Interim Maintenance 

The Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct.

The Supreme Court in catena of cases examined Section 125 of the CrPC prior to and after the 2001 amendment. It noted that the amendment removed the ceiling of Rs 500 and left the discretion of fixing a monthly maintenance amount with the magistrate. Both prior to and after the amendment, allowance is payable from the date of the order, but the court can direct payment from the date of application for maintenance. The court observed that prior to the 2001 amendment, Section 125 of the CrPC did not expressly empower the magistrate to grant interim maintenance. However, equally, the provision did not prohibit the grant of interim maintenance. Taking into account the social purpose behind Section 125 of the CrPC of providing relief to deserted wives, neglected children and aged parents, it was held by apex court in catena of judgments that by necessary implication the provision conferred power on the magistrate to grant interim maintenance even prior to the 2001 amendment.

4.        Application of Order of Maintenance

  

 According to Section 125 of the CrPC, the magistrate can award maintenance payable from the date of the order or, if he so directs, from the date of application for maintenance. An express order from the magistrate is necessary to award maintenance from the date of application, but that there was no requirement for recording special reasons for the same.