Section 125 of the Criminal Procedure Code
Section 125 of the criminal procedure code order to give maintenance to his wife, child, or parents provides a remedy against the person who neglects his duty to maintain them who is dependent on them, and if they are not able to maintain themselves. However, if the husband is not satisfied with the judgment then he has an opportunity to file a revised application in the court under section 397 of the criminal procedure code.
Meaning
Order for maintenance of wife, children, and parents. If they are not able to fulfill their needs because they are dependent on him and the person neglects or refuses to maintain his wife, child, or parents. The magistrate of the first class will decide the monthly allowance which he thinks fit.
- his wife is dependent on him
- his illegitimate or legitimate child who is Minor whether married or not, and unable to maintain itself
- his legitimate or illegitimate major child (not being a married daughter) who attains the age of majority whether such child is physically or mentally not suitable or had an injury and is not able to maintain itself
- his father and mother who are unable to maintain themselves then they are dependent on him
Minor – means a child who does not attain the age of majority which comes under the provision Indian Majority Act of 1875
Wife – means a woman who has been divorced or getting divorced from her husband or not remarried
Provided further
If the wife is living in adultery and not living with her husband without giving a reasonable reason or they live separately with mutual consent then there is no allowance for maintenance will be given to her.
Also, the magistrate can cancel the order if there is proof that the wife is living in adultery or without sufficient reason not to live with her husband or mutually decided to live separately.
Interim maintenance
If the proceeding is taking time in the court and the petitioner requires maintenance then they can request the court to give some amount before the order so the petitioner can maintain itself. This is called interim maintenance.
Other sections in which women can take maintenance
Section 24 of the Hindu Marriage Act
Section 23 of the Domestic Violence Act
Hindu Adoption and Maintenance Act section 18
Section 36 of the Special Marriage Act
Section 126 of the criminal procedure code
Procedure for taking maintenance against any person can be taken in any district
1- Where the person resides
2- Where they both resided
3- Where he last resides with her wife
Provided that-: if the person against whom the order is proposed for the maintenance willfully neglects the service or willfully avoids attending the court proceeding then the magistrate will proceed with the hearing and will make a degree of ex parte.
Section 127 of the Criminal Procedure Code
Alteration or cancellation of allowance
Maintenance can be increased or can be decreased by the magistrate according to the circumstance by whom the amount is given or by whom the amount is received.
The maintenance is decided based on the husband’s earnings at that time after some time the husband earns more and is capable of providing more then the wife has to give proof in court that her husband is earning well and can give more amount to her. If the magistrate thinks that there is a need for alteration then the court will allow the alteration in maintenance.
The maintenance will be cancelled by the magistrate if the wife gets remarried again, or gets the whole amount at once.
Section 128 of the Criminal Procedure Code
Two modes mentioned in this section are
1- If the fine is not paid warrant will be issued
2- Imprisonment
The warrant will only be issued if the amount is not paid within one year and the amount is due. The imprisonment will increase to 1 month or until he pays the amount. This punishment is only made so that the liability is discharged early and it did early when the amount is paid.
Landmark cases
Bhushan Kumar meen vs. Mansi meen (SP)
Will maintenance be reduced because the husband has to pay the EMIs?
- The husband proved that he had to pay EMIs and other commitments to pay in time due to which he has no savings left.
- The court will reduce the maintenance ordered against him considering that he had to pay the EMIs on time
Anu Kaul vs. Rajeev Kaul (Supreme Court)
When the wife’s earnings are less and she is taking care of her children
The court measured all the conditions and checked the position of the husband and the court held that the husband needs to pay the maintenance for his daughter’s schools even if the wife is earning but she can not maintain her and her children because of low income.
Padmja Sharma vs. Rattan Lal Sharma (Supreme Court)
Contribution of both parents regarding child maintenance
Supreme Court directs both parents to contribute to their child’s maintenance. The ratio amount is 2:1 if the husband is paying 20 thousand the wife has to pay 10 thousand.
Rohtash singh vs smt. Ramendrei & Ors. (Supreme Court)
If a wife deserted her husband will she get maintenance?
When the wife deserted the husband and both the husband and wife got divorced ground for divorce is the wife deserted husband. In this case, the Supreme Court held that no maintenance would be given to her because she deserted her husband.
Chanmuniya vs virendra kushwaha 2011
In this case, the Supreme Court held that a woman gets maintenance if she is in a live-in relationship and she has a right to claim maintenance under section 125 of the Maintenance Act of the criminal procedure code.
Reason- this is enacted to ensure that no man should take advantage of any woman by living in a relationship. He has to fulfill the responsibilities of her marriage life.
Shayara bano vs mohommed Ahmed
Facts
Shayara Bano was married to her husband Rizwan Ahommaed in 1932. They have 5 children. In 1946 he married another woman and in 1975 he told Shah Bano to go and live with her children because he wanted to live with his second wife. She has no money to maintain herself and her children. In starting Ahommed gave some amount to them but after some years he refused to give maintenance.
In 1978 Mahhomed Ahmed gave Triple Talaq. She approaches the local court for maintenance under section 125 of the criminal procedure code. The court ordered them to give her 25 rupees per month.
In 1980 Shah Bano filed a provisional petition application in the high court. Which court increased the value of maintenance to 179.80 rupees. After this, mah Homed Ahmed Khan filed an appeal petition and argued that in Islamic personal law, a husband is only liable to alimony during the iddat period. All India Muslim personal law supported Ahmed Khan and this case proceeded to 1985.
On 23 April 1985, the Supreme Court upheld the decision of the high court to vanish the appeal of the high court and also increased the amount of maintenance.
Judgment
That criminal procedure code is a secular law and the husband has to give maintenance to his wife until she is remarried or able to maintain her.
Triple Talaq
Talaq e Sunnat is divided into two parts Talaq E Ahasan, Talaq E Hasan, and Talaq E Biddat. Sunnat means which comes with tradition.
Talag E Ahsan means- if the husband pronounces talaq once at a time and then he observes 3 months which is called the Iddat period in these 90 days of the period if there is a settlement between them then the Talaq can be revoked and the marriage becomes valid. This is the most approved form of Talaq.
Talaq E hasan means the husband pronounces Talaq three times but does not repeat it at once it pronounces three successive times. Like once in 1st month 2nd in the next month and 3rd in 3 month if they have settled through arbitration or conciliation their marriage before pronouncing Talaq in 3rd time then they can revoke Talaq and the marriage becomes valid.
Talaq E Biddat is innovative and it is the newest form of Talaq in which the husband can pronounce three times Talaq at once which is called Triple Talaq in which there is no period given to husband and wife for settlement, arbitration, and conciliation. This husband can also give her Talaq through WhatsApp, email, etc. it is not valid in India and in some other countries.
Rizwan Ahmad gave talaq to Sharaya Bano through Triple Talaq means Talaq E Biddat. After this Shayara Bano filed a writ petition against this in the Supreme Court and challenged three practices of Muslim law
1- Triple Talaq
2- Nikah Halala
3- Polygamy
In February 2017 to hear this matter bench of 5 judges sat and the Supreme Court ordered both parties to give a written statement regarding these three issues. After receiving the statement from the Supreme Court 2 main issues are-:
1- Is triple Talaq the essential religious practice of Islam
2- Whether triple Talaq violates the fundamental right
Now First 2 Judges CJI Jagdish Khehar and J. Abdul Nazeer said that Triple Talaq is a part of Islamic Law and Article 25 provides every citizen’s right to religion so these practices are protected by Article 25, and the Supreme Court can not be involved in this. Supreme Court also said that the judiciary cannot decide whether Triple Talaq is valid or not. Can be decided by parliament decides to make a stay of 6 months in Triple Talaq and these 6 months, the parliament decides whether it is valid or not.
Next 2 Judges J Rohinton Nariman, and J. U. U Lalit said that it is mandatory that all the laws have to be consistent with fundamental rights whether it is before the Constitution law or after. According to Article 14 if anything is a violation fundamental right of a person then the Supreme Court can make that law unconstitutional. The Triple Talaq concept violates the arbitrary fundamental rights of women.
The last judge J Kurian Joseph said that Triple Talaq is unIslamic.
The majority of judges declared illegal Triple Talaq, and parliament made a Bill in which they declared it a cognizable offense.
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