How to Claim Maintenance under section 24 of HMA, 125 of CrPC : Procedure and Enforcement

How to Claim Maintenance? S. 24 HMA, S. 125 Cr.P.C, Procedure and Enforcement.
simplekanoon.com

Introduction

A person has the right to basic necessities such as food, clothing, shelter, and other necessities in order to live a dignified life. According to social justice principles, it is a man’s natural duty to provide these amenities to his wife, parents, and children in the form of maintenance. The maintenance law in India establishes a man’s obligation to provide maintenance to his parents, wife, and children when they are unable to support themselves. Maintenance in law is defined as the amount paid to the dependent wife, child, or parents in order for them to maintain themselves. The amount can be paid in one lump sum or in monthly installments. Section 125 of the Code of Criminal Procedure, 1973 establishes the concept of maintenance in India, along with the various personal laws that extend the right to maintenance not only to the wife but also to her parents and children. Personal maintenance laws in India apply only to people of those religions, whereas a maintenance claim under Section 125 of the CrPC can be filed by anyone, regardless of religion or caste.

Procedure Followed in Maintenance Case

dower
Source: iPleaders

Section 126 of the CrPC deals with “Maintenance Procedure.” Section 125 proceedings may be brought in the following districts:

  • Where is he, or
  • Where he or she resides, or
  • Where he most recently resided with his wife or the mother of an illegitimate child.

All evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is to be made, or, if his attendance is waived, in the presence of his pleader, and shall be recorded in the manner prescribed for summons-cases: Provided, however, that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service or wilfully failing to attend the Court, the Magistrate may proceed to hear and determine the case ex parte, and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms, including terms requiring payment of costs to the opposite party.

Steps to be Followed in Maintenance Case

  1. The application is filed before the family court with the facts of the case, stating the circumstances under which the wife seeks maintenance and all personal relevant details.
  2. The petition is reviewed by the family court, and the husband, against whom the petition has been filed, is served with notice.
  3. In all of the cases in Delhi, the parties are directed to appear before the court for reconciliation, and the court makes initial efforts to reconcile them.
  4. If the family court’s reconciliation proceeding is successful, the matter is considered resolved. If the reconciliation proceeding fails, the family court will hear the petition on its merits.
  5. The family court orders the opposing party to file a response to the petition outlining the facts that he or she admits or denies in the petition. In Delhi, the court also requests that both parties file detailed income affidavits so that the court can infer the parties’ capabilities and liabilities.
  6. The petitioner is directed to file his rejoinder to the opposing party’s reply. At this stage of the case, the code decides on the application for interior maintenance during the pendency of the petition.
  7. The court frames the issue for adjudication, and the case is posted for the parties’ evidence.
  8. The petitioner is directed to lead its evidence by filing the necessary documents and papers, as well as summoning all witnesses.
  9. The respondent is expected to lead its evidence by requesting relevant documents and papers and summoning all witnesses.
  10. The court hears the final arguments in the case and makes a decision.
  11. Finally, the court renders a decision in which it may either dismiss the petition or allow the petition and order the other party to pay a monthly sum determined by the court.

Enforcement of Order of Maintenance

maintenance
Source: legaladvisory.in

Section 128 deals with the “enforcement of maintenance order.” The following are the conditions for enforcing the order of maintenance, according to this Section:

  • A copy of the order made under Section 125 is provided free of charge to the person in whose favour it is made. If the order is in favour of children, a copy of the order will be given to the child’s guardian.
  • If a Magistrate makes an order under Section 125, any Magistrate in India can enforce that order where the person who must pay maintenance lives.
  • Before an order can be enforced, the Magistrate must satisfy two conditions: the identity of the parties and proof of non-payment of allowances.

Landmark Judgements

Rajnesh vs Neha & Anr, 2020

In this case, the court stated that the wife will be entitled to the maintenance from the date the application was filed. As the court was of the notion that the reason for filing the case is that the wife is not able to maintain herself and that shall be from the date of the application being made in the court.

Shome Nikhil Danani vs Tanya Banon Danani, 2019

In this case, the court held that both the sections, Section 125 of CrPC and Section 20 of the Domestic Violence Act serve different purposes whereas one serves for the maintenance of the wife and the Domestic Violence Act serves the purpose of the expenses incurred because of the domestic violence such as the injury, mental harassment, etc.

Bhuwan Mohan Singh vs Meena, 2015

In this case, the maintenance of a wife for her ‘sustenance’ does not mean mere animal existence but it signifies leading life similarly as she would have in the house of her husband. Furthermore, the husband is duty-bound to enable his wife to live life with dignity according to their social status and strata,

Vanamala vs H.M. Ranganatha Bhatta, 1995

In this case, the meaning of ‘wife’ under Sections 125(1) and 125(4) CRPC was held to be different. The court held that Section 125(4) contemplates a married woman who is living separately from a husband with mutual consent does not mean a wife who obtains divorce by mutual consent and lives separately and therefore cannot be denied maintenance on this ground.

Shabana Bano vs Imran Khan, 2010

In this case, the Supreme Court held that a Muslim woman, who has no means of sustaining herself, can claim the maintenance even after the iddah period gets over, according to Section 125 of CrPC.

Conclusion

The protection of the rights of the divorced wife, children, and elderly parents is essential under Chapter IX of the Code of Criminal Procedure. It is designed to protect them from unusual sources of income. Maintenance is the responsibility of everyone who has the means to do so. This chapter of the CrPC contains various provisions relating to maintenance, such as who is entitled to maintenance, the essential conditions for granting maintenance, the procedure for maintenance, the alteration of the previous order, the enforcement of the order of maintenance, and so on.

Frequently Asked Questions (FAQs)

Is a husband bound to pay maintenance if he is unemployed?

Yes, the quantum of maintenance will be minimal.

When Maintenance can be rejected/canceled?

If the wife is living in adultery, she has left the company of the husband without valid reason or with mutual consent or if she has changed her religion or if she remarries.

What amount will be reasonable for the wife as maintenance?

There is no fixed formula for that but generally, it is one-third of the husband’s in-hand earnings.

What is the difference between maintenance under section 125 of CrPC and section 24 of the Hindu Marriage Act?

Section 24 HMA is only applicable during HMA proceedings. However, S. 125 CrPC can run without a wife seeking a divorce.

What maintenance include in India?

Under Indian law, the term ‘maintenance’ includes an entitlement to food, clothing, and shelter, being typically available to the wife, children, and parents.

Leave a comment

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.