Model answer for maintenance u/s 125 CRPC for judicial examination preparation

QUESTION(1):

EXPLAIN THE CIRCUMSTANCES IN WHICH MAINTENANCE CAN BE CLAIMED UNDER PROVISION OF CR.P.C. ?

[PUBLIC PROSECUTORS 2013/O.P.S.C]

MODEL ANSWER:

Chapter-9 containing sec-125 to sec-128 Cr.P.C lays down the provision relating to Maintenance of wives, children and parents.

The following persons can claim maintenance U/S 125 cr.p.c

  1. Wife of a person who is unable to maintain herself.
  2. The legitimate or illegitimate minor children who is unable to maintain itself
  3. The legitimate or illegitimate children who attend the majority but due to reason of physical, or mental abnormality or injury unable to maintain itself
  4. The father and mother of a person who is unable to maintain itself.

When wife is entitled or not entitled to get maintenance

Wife is entitled to move an application u/s 125 before a Magistrate of the first class if when:-

  1. The husband refuses to maintain her or she is neglected by the husband.
  2. The husband has sufficient means
  3. She is unable to maintain herself.

Wife is not entitled to receive the an allowance from her husband in three cases if when :-

  1. she is living adultery
  2. she is refused to live with her husband without sufficient cause
  3. they are living separately with mutual consent

When children's are entitled or not entitled to get maintenance

  1. all the legitimate or illegitimate male or female child whether married or not can claim maintenance.
  2. the children who attend the majority can claim maintenance if they are physical or mental abnormality or injury not unable to maintain itself.
  3. However, the married adult female child cannot claim maintenance from her parents.

When PARENTS are entitled or not entitled to get maintenance

  1. When father mother unable to maintain itself.
  2. The son or daughter whether married or not married having sufficient means neglects or refuse to maintain
  3. Father mother includes adoptive father or mother ,step father or steep mother.

If there is two or more children the parents may seeks remedy against any one or more of them.

QUESTION (2)

WRITE EXPLANATORY NOTES ON MUSLIM WOMEN (PROTECTION OF RIGHT ON DIVORCE)ACT 1986 VIS-A –VIS SEC-125 CR.P.C [ADDITIONAL PUBLIC PROCECUTORS 2014/O.P.S.C] OR

CAN A MUSLIM MARRIED WOMEN WHO HAS BEEN DESERTED BY HER HUSBAND CLAIM MAINTENANCE U/S 125 CR.P.C ? ALSO DISCUSS THE PROVISION IN A CASE WHERE SHE HAS BEEN DIVORCED?

[ODISHA JUDICIAL SERVICE 2013]

ANSWER:

The sec-125 cr.p.c is secular in nature .it applies to every type of person irrespective of their religion.

A Muslim women can claim maintenance either Muslim personal law or 125 cr.p.c. these two laws are very different and dependent on different conditions. For Muslim the main laws is the MUSLIM WOMEN (PROTECTION OF RIGHT ON DIVORCE)ACT 1986 which provide maintenance during the iddat period but 125 is at any time

In Mohd. Ahmed Khan v. Shah Bano Begum, 1985

There was a Muslim women who was divorced by her husband when she was 68-years old and mother of five children .The supreme court held that a divorced women is entitled to maintenance u/s 125 cr.p.c.

The supreme court reject the plea that maintenance is payable for idit period only.

The supreme court has held that if there is any conflict between personal law and 125 cr.p.c than it is clear from language of the sec-125 that it overrules the personal law.

After the historic Judgement of the Shah Bano case the Indian government was under the pressure from Muslim community to bring the law which is overrule this judgement and brought the law the MUSLIM WOMEN (PROTECTION OF RIGHT ON DIVORCE)ACT 1986.

According to this act a Muslim women is to be awarded maintenance by her husband only the iddat period and not afterward but incase if she is financially not independent then in that case her relatives who will get the share of her property will award her maintenance

But now the judicial position has been cleared by the case of Shamim Banu vs. Ashraf Khan (2014)

There was always a controversy in the judicial arena that whether even after the Act of 1986 the Muslim women can seek maintenance u/s 125 cr.p.c. the answer was given in the land mark judgement held that a Muslim woman has the right for maintenance not restricted by her choosing to apply for divorce under Muslim woman act, she can either file under the Act or under cr.p.c 125

QUESTION NO.3

A & B were married at palmpur, they last residing together at Delhi. A came on transfer to Jaipur leaving with her brother at Delhi. He neglect and refuse to maintain her. At what place the application for maintenance u/s 125 cr.p.c can be filed ?

[PUBLIC PROCECUTORS 2013/O.P.S.C]

Answer:

As per sec-126 proceeding u/s 125 may be taken against any person in any district-

  1. Where he is or
  2. Where he or his wife resides or
  3. Where he last resided with his wife or as the case may be with the mother of illegitimate child

In the instant question the application u/s 125 cr.p.c. by B can be filed either at Delhi or Jaipur.

(court within whose jurisdiction the husband is or reside together or where they last reside together.)

QUESTION NO-4

Can a second wife claim maintenance u/s-125 cr.p.c

ANSWER:

Section 125 provides

If husband refuses to maintain his wife and wife is unable to maintain herself, she can claim maintenance under this section.

The code does not defined wife but Explanation (b) says wife include woman who has been divorced by, or has obtained a divorce from her husband and has not remarried.

Amunabai Anantrao Adhav vs. Anantrao Shivram Adhay & Anr.In that case, it was held that a Hindu lady who married after coming into force Hindu Marriage Act, with a person who had a living lawfully wedded wife cannot be treated to be 'legally wedded wife' and consequently her claim for maintenance under Section 125, Cr.P.C. is not maintainable.

This caseswould apply only in those circumstances where a woman married a man with full knowledge of the first subsisting marriage.

Chanmuniya vs. Virendra Kumar Singh Kushwaha & Anr.(2011) 1 SCC 141. The Court has held that the term 'wife' occurring in Section 125, Cr.P.C. is to be given very wide interpretation. This is so stated in the following manner: 'A broad and expansive interpretation should be given to the term 'wife' to include even those cases where a man and woman have been living together as husband and wife for reasonably long period of time, and strict proof of marriage should not be a pre-condition for maintenance under Section 125 of the Cr.P.C. so as to fulfill the true spirit and essence of the beneficial provision of maintenance under Section 125.'

The second wife is entitled to claim maintenance only if the husband concealed his first marriage from her. the husband cannot be permitted to deny the benefit of maintenance to the wife, taking advantage of his own wrong.

QUESTION NO-5

What is interim maintenance and it purposes? in how much time the application of interim maintenance should be disposed of ?

Answer: The interim maintenance is a kind of relief that paid to the applicant during the proceeding or till the final order u/s-125 cr.p.c. It is intended to provide financial support to the applicant until final re-solution is reached. It shall be disposed of within 60-days from the date of service of the notice of the application of the applicant. It shall be payable as magistrate consider reasonable and shall be payable either the date of application or from the date of order.

 

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