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rajiv_lodha (zz)     08 September 2013

Sec 125 by minor

Minor child 8 yrs in my custody as wife left him at my doorstep 3 yrs ago. Sec 13 i a (by me) + DV case (she against me) is running. Wife got visitation in DV Int Orders, no maint/RTR fr herself. She never put GWA/Sec125.
Now I want to put more pressure upon her via legal remedies available 2 me. I want 2 put Sec 125 case throu minor (me as guardian); writing that she is on equal footings as we both r Govt employees, income+qualification is similar. Acc to SC & various HC rulings, both earning-parents shud contribute to child's upkeep. She is already enjoying visitation & skipping her moral & legal duty 2wards child maint etc.
 

Questions are:
1) Its it a right move?

2) I do not plan to write that father is taking it difficult 2 rear the child by his income (as i do not want to lose custody battle...... if she ever plans after such a long delay)
 

3) Whether i have to produce "details" of each n every spending on the child 2 win this case down the trail?



Learning

 15 Replies

Kiran Kumar (Software)     08 September 2013

I suggest do not file such cases, as it will

a) increase your litigation overhead

b) The moment you file case, She will surely come to know the power of female laws in inida and any case will backfire you

 

Actually you should feel happy as you got custody of child with no false cases

Tajobsindia (Senior Partner )     09 September 2013

@ Author,

1. S. 125 CrPC case on behalf of minor by natural Father is non-maintainable.

2. S. 24 HMA case on behalf of minor by natural Father is maintainable. Child day-today needs should be mentioned and it is co-extensively supported by both natural parents. You will not loose the custody for a reson under S. 21 DV Act if she only got visitation then it is good enough inference to deny the same during any subsequent releif if she may seek under any other Acts.

 

3 Like

(Guest)

@ author,

Go through the following link:

12. MADHYA PRADESH HIGH COURT: Madhuri Bai vs Minor Surendra Kumar And Anr. on 24 April, 1998
1 Like

rajiv_lodha (zz)     09 September 2013

Thanx Tajob for kind reply, but plz elaborate more on some points

Originally posted by : Tajobsindia


@ Author,

1. S. 125 CrPC case on behalf of minor by natural Father is non-maintainable.

* Is it some set law? Even my HC lawyer agrees that it is maintanable.


2. S. 24 HMA case on behalf of minor by natural Father is maintainable. Child day-today needs should be mentioned and it is co-extensively supported by both natural parents. You will not loose the custody for a reson under S. 21 DV Act if she only got visitation then it is good enough inference to deny the same during any subsequent releif if she may seek under any other Acts.

* Wife put sec24 upon me in my sec 13 i a case. She being govt employee, did not push it & case moved to petitioner's cross now. Is it possible for me to invoke sec24 now? Does this argument that "equally earning parents, both wil have to contribute 2wards child's maint" wil hold ground in this possible sec24 case too 




(Guest)

A brief reply-

 

CR.PC 125 will not apply ipso facto as subsection(1) subclause (a) to (d) talks only of 'His' and not 'Her'.Therefore, this section cannot be invoked by a husband regardless of the purpose.There is nothing in this section which puts the burden of maintenance upon wife of their children.

 

Further Section 24 of HMA cannot be invoked for the purpose you are talking as it's heading read 'Maintenance pendente lite and expenses of proceedings'. There in nothing in sections which talks about any normal maintenance or alimony to either wife or the husband.

 

Thus,remedy of your problem can be found in section 20 of HAMA 1956.Here,under this section you can,on behalf of the minor,file an application for the maintenance of minor child or child (major included)who are unable to maintain themselves.

rajiv_lodha (zz)     10 September 2013

Thanx dear for carrying frward the discussion:

but my point is -- 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 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, Sec 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. ............experts plz thorw light

As u have suggested sec 20 of HAMA 1956, question is "i do not want to write that father is not able to maintain the child.............point is equally earning spouses have coextensive responsibilty to contribute 2wards child maint. needs" (want to argue on SC's Padmja Sharma vs Ratan Lal Sharma judgment)

Do u think that it will work if i put sec20 HAMA?

AIM IS: To get maint for child from noncustodial earning mother without losing custody grounds.

Though i have done extensive background check, wife is not willing to take permanent custody at all

Shantanu Wavhal (Worker)     11 September 2013

why are u increasing the stress unnecessarily ?


(Guest)

it's advisable to save such arguments(as you given) for the court to consider.What makes you think that the pronoun 'he' used in the section may refer to wife also!?

 

For the purpose of understanding,let's have a look over the bare act defintion-

 

125.Order for maintenance of wives, children and parents. (1) If any person having sufficient means neglects or refuses to maintain-


(a) his wife, unable to maintain herself, or


(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or


(c) 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


(d) his father or mother, unable to maintain himself or herself,a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct :
Provided that the Magistrate may order the father of a minor
...........continued............

 

Now does it give you impression that the pronoun 'he' used here may also refer to 'she'? If yes,I can't help further

 

Also it's advisable to try hard to interpret sections and acts correctly. Without understanding 'When to use General clauses act' definitions is a sure mis-fire.

 

Further,coming to your aim,'Little Chance' is the word I like to add.

 

Finally No comments further...

Raj Kumar Makkad (Adv P & H High Court Chandigarh)     11 September 2013

I completely do agree with the advice of know.

1 Like

rajiv_lodha (zz)     12 September 2013

Ok friends, I wil make a move only after holding strong foot. Now if we consider 125Crpc a bad idea, what r thoughts about Sec24/26 HMA And Sec20 HAMA Actually fight has reached such a turn that increased botheration created on wife BY COURT CASES WILL PRODUCE RESULTS. I want 2 use legally available options for me. So have 2 chose appropriate weapon amongst HAMA, HMA or 125CrPC

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com)     12 September 2013

Dear Rajiv

You can file under section 20 of Hindu adoption & maintenance act, because you can easily file the case for maintenance on behalf of your child as you are the guardian & this case is purely civil nature case & govern by CPC it is also better then 125 of Cr.p.c.

feel free to call

1 Like

rajiv_lodha (zz)     14 September 2013

One problem

if i take sec20 of HAMA route, wil Supreme Court's 'Padamja' judgement help me still? Coz this one is my weapon to fight & SC pronounced the orders on sec125 in this case.

being civil case, wil it move at a good pace? wil the maint be granted from date of application (like in 125CrPC)?

any judgments where custodian father had been successfully given maint for child from earning mother?

rajiv_lodha (zz)     16 September 2013

Members, got this judgment about 125CrPC, see whether its useful 2 get maint from mother by minor:

Madhya Pradesh High Court

Madhuri Bai vs Minor Surendra Kumar And Anr. on 24 April, 1998

Equivalent citations: 2000 (1) MPHT 602

Author: V Agarwal

Bench: V Agarwal

ORDER

V.K. Agarwal, J.

1. This petition under Section 482 of Cr.P.C., has been filed as the petitioner-mother feels aggrieved by the

order dated 10-2-98 in Cr. Revision No. 181/96, by 1st A.S.J. Raigarh, affirming the order dated 3-7-96 of

Judicial Magistrate First Class, Saranggarh in Misc. Cr. Case No. 56/95, granting maintenance in favour of the

minor sons of the petitioner under Section 125 of Cr.P.C.

2. The facts leading to the present petition are that the non-applicants-minor sons of the petitioner filed an

application under Section 125 Cr.P.C., through their grand-father as their guardian, claiming amount of

maintenance against their mother- the present petitioner. The father of the non-applicants had died while in

service as Helper in the M.P.E.B.. His wife- the present petitioner is admittedly receiving family pension after

the death of her husband. The trial Court allowed the petition of minor sons-the non-applicants and granted

maintenance of Rs. 200/- to each of them. The order was confirmed in revision by the 1st Addl. Sessions

Judge.

3. The learned counsel for the petitioner has urged that under Section 125 of Cr.P.C. only the father can be

directed to pay maintenance to the minor sons, and that under the said provision the mother was not under an

obligation to pay maintenance to her minor sons. In this connection reliance has been placed on a decision of

Madras High Court in T.P.S.H. Selva Saroja v. T.P.S.H. Sasinathana (1989 Cri.L.J. 2032). It was, therefore,

submitted that the order of the Magistrate granting maintenance and the order in revision directing the

petitioner-mother to pay maintenance to her minor sons, is illegal. It has also been urged that though the

petitioner is willing to keep her sons with her, but they are refusing to live with her, and therefore, she is not

liable to pay any amount towards their maintenance.

4. It may be noticed that Section 125(1) of Cr.P.C. reads as below :--

"Order for maintenance of wives, children and parents :-- (1) If any person having sufficient means neglects

or refuses to maintain--

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not unable to maintain itself, or

(c) 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

(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may upon proof

of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or

such child, father or mother at such monthly rate not exceeding five hundred rupees in the whole, as such

Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:

Provided that the Magistrate may order the father of a minor female child referred to in Clause (b) to make

such allowance, until she attains her majority if the Magistrate is satisfied that the husband of such minor

female child, if married, is not possessed of sufficient means."

5. It would appear from Clause (b) of Section 125 (1) of Cr.P.C., that a person can be directed to pay monthly

allowance of his minor child, if:--

(a) such person is having sufficient means; and

(b) neglects or refuses to maintain his minor child.

The liability as above for payment of monthly allowance towards maintenance arises irrespective of the

considerations as to whether such minor child is legitimate or illegitimate or whether he is married or

unmarried.

6. It is not in dispute that the non-applicants are the sons of the petitioner and are minors. Therefore, the

question for consideration is whether the mother is liable to pay maintenance under Section 125(1)(b) of

Cr.P.C. ?

7. It is true that in Clause (b) of Section 125 of Cr.P.C., the word used are 'his' legitimate or illegitimate minor

child, and on that basis, it has been tried to be urged by the learned counsel for the petitioner that a mother

would not be covered under this clause and cannot be held to be liable to pay maintenance. However, 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, 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 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.

8. 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 be mother or father, would be liable to pay

maintenance to the minor child, if other conditions under Section 125 (1) of Cr.P.C., are fulfilled.

9. In the above connection reference may be made to Dr. Mrs. Vijaya Manohar Arbat v. Kashirao Rajaram

Sawai and Anr. (AIR 1987 SC 1100) wherein a similar contention with reference to Section 125 (1) (d) was

raised. It was held therein that the pronoun 'his' occurring in the said provision denotes also a female in view

of the provisions of Indian Penal Code, as well as the General Clauses Act. Accordingly, it was ruled that a

daughter would also be liable to pay maintenance to the parents, if the Court is satisfied that she has sufficient

means and has her own income, and that the father or the mother as the case may be, is unable to maintain

himself or herself.

10. In view of above, it is clear that the petitioner- mother would be liable to pay maintenance under Section

125(1) (b) of the Code of Criminal Procedure. She cannot escape liability to pay maintenance simply because

in Clause (b) of Section 125 (1) of Cr.P.C. word 'his' has been used. The case of T.P.S.H. Salva Saroja (supra)

relied upon by the learned counsel for the petitioner would be of no assistance to her as the facts thereof and

the matter of consideration has no bearing to the facts of the present case. In the said case the daughter had

claimed maintenance against the mother on the ground that the movement of her mother with another person

had caused damage to the reputation of her family, and had also caused injury in the mind of the daughter. It

was held therein that the said injury to the mind of the daughter could not come within the scope of injury

contemplated under Section 125 (1) (c) of Cr.P.C., and, therefore, it was held that the daughter would not be

entitled to invoke the provisions of Section 125 of Cr.P.C., to claim maintenance from her mother. However,

the question involved and decided in that case do not relate to and cannot be of any assistance to decide the

present case.

11. The learned counsel for the petitioner has also contended that the petitioner is not liable to pay

maintenance to her sons-the non-applicants as they are refusing to live with her on the instigation of the

grandfather, who has filed petition for grant of maintenance on their behalf as their guardian. However, it is

noticed in this connection that the learned Judicial Magistrate has in his order dated 3-7-96 recorded that the

non-applicants have expressed that they do not wish to live with their mother. It may be noticed that the

non-applicants though are minors aged about 13 and 8 years respectively, but were in a position to express

their willingness or unwillingness to live with the petitioner-mother. Their disinclination to live with their

own mother speaks volumes about the conduct and mutual relations between the petitioner and her minor

sons, as normally the minor sons would not have shown such a disinclination to live with their own mother

without some vital and gross reasons. Therefore, the contention of the learned counsel for the petitioner that

since the non-applicants are not willing to live with the petitioner-mother, she is not liable to pay any amount

of maintenance to them, cannot be accepted.

12. Accordingly, no exceptional circumstances have been brought-forth so as to justify exercise of inherent

powers under Section 482 of Cr.P.C.. Consequently, no interference in the order passed by the Courts below

granting maintenance to the minor sons of the petitioner appears to be called for. Therefore, this petition has

no merit and is dismissed.


(Guest)

@Author,

 

1. Since your 13i a and her DVA 2005 is running it's highly recommendable to either get divorce first or dismiss her DVA 2005.

 

Reasoning:

1. If you will get divorce then your all allegations and concerns will come out as the protector for your child custody.

2. The same goes with Dismisal of her DVA 2005 which will propell your divorce case and enhance your child custody due to her malacious intentions against you and your family.

------------------------------


2. She has got only interim visitation under dva ,not custody,and she is earning lady as a govt. employee so no maintenance to her.Her DVA may not hold such depth becauze during 24 hrs she might be away from you & your family by 10-12 hrs.,rest of the time goes for recreation or sleep.

Here an earning lady has alleged for domestic violence ,which will not hold much effect if compared to non earning wife's complaint of domestic voilence.


But,again it will be so early to comment without knowing her allegations what she had made and under what sections she has claimed for relief.?

---------------------------------

 

3. As per your extreme concern to get maintenance for your child from her and even come as winner for your child custody is not a cake walk but not impossible also.


1.Your thought of filing 125 crpc may lead you to next part and next phrases because till now all cases are going in civil procedure code 1908.All of a sudden if you will fire her for 125 crpc,she might be assisted with her lawyer to backfire you with other cases which she has not launched till now.

 

2. If you go along with 26 HMA it will sooth you due to the pendancy of your Divorce case and simultaneously it will be heard even in your divorce case.The nature of the case is not wild and not affect her in thinking in other way.

 

3. If you go with Hindu Adoption and maintenance act 1956 U/s 20 ,that will be whole and sole made for this purpose only.It will help you even during the time of child custody because during the time of filing petition U/s 20 HAMA 1956 your minor is along with you and her DVA has got only interim visitation right.So,it will be beneficial.

 

 

Conclusion:

Never attract the cases with other cases because the cases are not solution for your previous cases but it will only prolong your cases.


Go only with such sec i.e 26 HMA & 20 HAMA because they will not hamper you and the result will be in favour of you as both are concerned with your present ongoing cases.Whereas 125 crpc goes with criminal procedure ,here no reason of criminal attention lies by your wife as order from judge has already been passed for interim visitation for child,so she is not bound to neglect or not maintain her child.It's you had taken the interim custody of child.As per maintenance of child both are concerned to contribute of his growth and wellfare. Hence,nothing wrong in seeking relief under the suggested sections.

 

regards.

A sufferer...


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