In general connotation, maintenance is the amount which is paid by one person to another in their relation who is not able to maintain themselves. The word 'maintenance' is however not defined in Code of Criminal Procedure.
Section 125 of CrPC deals with the order of maintenance. It is secular provision and therefore, people from all religions can claim maintenance under this section.
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Under this Section, there are four types of people who are eligible to claim maintenance allowance –
2. Minor children
3. Disabled children
Provided that they are not capable to maintain themselves with their own resources.
Also, the amount of maintenance depends on the income capacity of the husband. However, the liability is still on the husband whether he has an earning source or not.
The first right on the income earned is the earning person himself. Therefore, the husband has first right on the amount earned by him. Not more than two thirds of the income of the husband can be given as maintenance to all his dependants claiming allowance.
The term 'wife' includes the following for the purpose of maintenance –
1. The one who hasn't taken divorce from the husband
2. The one who has taken divorce from her husband and hasn't married again. (the wife has to be legally wedded wife)
The wife can claim maintenance in accordance to the status of living of the husband if they haven't taken divorce yet. The objective of it is to ensure that the wife also has the right to live with same standard of living as that of her husband.
If only the wife is entitled for the allowance then only one-third of the income of the husband can be provided to her.
The divorcee wife is given maintenance to negate the possibility of destitution or vagrancy. It is a kind of social liability of the ex husband to provide her enough means to live.
However, section 125(4) provides that if the wife is living in adultery or not willing to live with her husband without any sufficient reason or they are living separately with mutual consent, then the husband has no liability to maintain her wife. Also, a single event of adultery cannot be termed as wife living in adultery for the purpose of maintenance.
CHILDREN - MINOR OR DISABLED
Both boy and girl have the right to claim maintenance till they are minor. If the children have attained majority, then they will not be eligible to claim maintenance as per the Indian Majority Act,1875. The liability to maintain children is on both the parents.
However, according to Section 20(3) of Hindu Adoptions and Maintenance Act, 1956, a girl child can claim maintenance from her parents if she is not married irrespective of her age. In this provision, divorcee and widow are also included.
In addition to the claim of legitimate children, the illegitimate children also have the right to claim maintenance under Section 125 CrPC. Also, irrespective of age, a disabled child can claim maintenance from his/her parents.
The parents can claim maintenance from their children; either a son or daughter. If the daughter is married, they can still claim it if she is earning independently.
ORDER OF MAINTENANCE
Under section 125, the maintenance is provided after consideration of two things which are –
1. The income capacity of the person against whom the maintenance is claimed and
2. The needs of the person claiming maintenance.
Till the period of 1980, rupees 500 was the maximum amount of maintenance that could be awarded as a whole. After 1980, this amount changed. Firstly, Justice Krishna Iyer held in a case that the amount of rupees 500 is for a single claimant not all the claimants. Thereafter, the government also amended the section in 2001 and deleted the phrase 'not exceeding 500 hundred rupees'. Now, it depends on the magistrate to decide the amount to be provided to the claimants.
Under section 125(3), the court can take action if the person is not complying with the order without sufficient cause. It has been provided that an arrear for one year can be recovered. On every default, the court can send the person to jail for one month if he doesn't comply with the order after the recovery warrant. According to Section 421 of Indian Penal Code, the maintenance is recoverable as fine. Also, the order of enforcement can be executed anywhere in the territory of India as per Section 128 of CrPC.
Interim maintenance can be granted from the date of application. The court has to decide the application for interim maintenance within 60 days. All other maintenance can be either granted from the date of order or application as decided by the court.
Under section 126, the procedure for application of maintenance has been provided. The place for application can be filed in the court in the territory of India where –
1. The person against whom maintenance is claimed is residing or;
2. The person claiming maintenance is residing or;
3. The wife & husband have last resided together.
Under section 127, the application can be given to modify the maintenance order in regards to the change in circumstances.
Therefore, the order of maintenance acts a saviour for the persons to protect them for unusual livelihood. It gives the right to aged parents, wife and children to claim their rights in the form of maintenance if the other person wilfully refuses to perform his duty.
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