Man filing sec 125 on child's behalf or so!

Dear Rajiv , 

It is not clear from your side as to what are the reliefs she has asked in the DV case . Has she asked U/s section 21 of the act for child custody . You should be happy that you have custody of your child . Although maintanence of the child is co-extensive and is the responsibility of both parents .It may be noted that the opening words occurring in Section 125 (1) of Cr.P.C., indicate that any ‘person’ having sufficient means on refusal or neglect can be directed to pay the amount of maintenance. The word ‘person’ in the above clause would include a male or a female. Hence, though in Clause (b) Section 125 (1) Cr.P.C., the word ‘his’ is used, it cannot mean and relate to only a male. It may be noticed in this connection that Section 8 of Indian Penal Code, 1860 lays down that the pronoun ‘he’ and its derivates are used for any person, whether male or female. Further, Section 13 (1) of the General Clauses Act 1897 provides that in all Central Acts and Regulations, unless there is anything repugnant in the subject or context, words importing the masculine gender shall be taken to include females

Therefore, the pronoun ‘his’ occurring in Section 125(1) (b) Cr.P.C.,would mean and include ‘male’ and ‘female’ both. In other words, both parents whether he or she , would be liable to pay maintenance to the minor child, if other conditions under Section 125 (1) of Cr.P.C., are fulfilled. .The Magistrate can tell the mother to contribute for the child towards child maintanencThe moment you raise the issue of maintanence for the child she may say father is unable to maintain the child and hence hand over the custody of the child i will take care of the child thanwhat :).This is my point of view .

The main question can be tackled in different way only if you can handle it then only proceed further;

1. Under HMA The Act you have to move an Application in a family court as stand alone first stating all those points which covers needs of a child. Then you have to show among them which all needs as single parent you are filling and then you have to state the co-extensive guidelines of SC and why SC thought so and finally you will have to show that non-custodial parent too is enjoying fruits of the child during visitation BUT since it is duty of both parent to support child whether having physical company or not and his mother is woman of means so the child will “benefit” if such and such needs of child from the earlier list she also “contributes” voluntarily instead of just showing up at visitation dates only and shower so called motherly love and affection. Also say one liner that your child post visitation in his tiny wisdom asks "why mommy does not bring or buys me gifts the way you do for me...........?"

It is purely persuasive with wide sweeping powers based, revolving purely on “overall welfare of child” whether custody case there or not based pleadings.

In one stroke if persuasive submissions grills into ld. PJ or APJ’s application of mind your wife will be ordered to “contribute” too is my doable view. However short, brief wordings should be mentioned in suggested stand alone application and yes HMA The Act has such power to Order for welfare of child and 'welfare' word also includes some money payments by both or by non-custodial parent too.

2. Counter case or more cases filing are quite tempting strategy as always to extend pressure in matrimonial cases to other side but same time you also have to handle the cases by attendance read with parting legal fees and there is no hard and fast rule that they may not be filed but good reasoning should be there least “cost” gets awarded at the time of dismissal of such cases.


You = generic used here.

I think this applies when child is in mother's custody.

"""   she may say father is unable to maintain the child and hence hand over the custody of the child i will take care of the child thanwhat :).This is my point of view .  """

If such a judgement is passed based on this averment, why similarly a father  should not be handed over the custody of a child since the mother cannot maintain the child.  It would open a floodgates of child custody issues.

I have to inform you that section 125 of Cr.P.C. assigns responsibility of wife, child and parents to male persons only and not on female. Hence, you can not file Section 125 case for maintenance of child. 

I agree to you Vijay

but

1. How can you change this gender biased law which is one sideed and only for the women can you ?? ,

2. Please note she has filed DV against him and neither it has been confirmed wether she has asked for any relief under section 21 of the act although she has been granted visitation  .Please read the DV act for section 21 Custody can be asked in this act only for the women . Can a Man ask for custody in this act ??

@ Stanley!

She has not asked for permanent custody anywhere in DV case, apart from false allegations that I forcibly took the child frm her, do not allow her to meet him etc etc. While disposing her Sec 23 application, MM gave her visitation rights only, no other reliefs showered.

@ Tajob,

U have dealt with the quesry head-on, I want some more clarification

1) U talked of HMA, plz clarify which sec is applicable for this stand alone case?

2) As Goutam Prashad has debated, Whether husband can file 125 case, upon wife being a guardian of minor child in his custody?

3) Can u provide Citataions which say that earning spouse mother contribute to the expenses of child rearing to the cutodial father.

4) I have Sec 13 i a cases against her. By any means, can she rake the issue of getting custody of child via any section in this very case, standing as respondent OR she can get the child only throu GWA case?

Members plz enlighten!