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Interim Maintenance Under Section 125 CrPC: Judicial Discourse & Development

The purpose of the article is to look at Interim Maintenance Provisions Under Section 125 of CrPC.

By: Ram Agarwal, 3rd Sem LLB Hons, KRM University, Gurugram.

Overview

Under Section 125, CrPC, it is made mandatory to provide maintenance to a man’s wife, parents, and children. There are certain provisions in the law, which are being discussed in this Article. The courts have interpreted the statute in different ways, and some of those will be covered here.

Section 125

If any person having sufficient means neglects or refuses to maintain –

  1. His wife, unable to maintain herself, or
  2. His legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
  3. 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
  4. His father or mother, unable to maintain himself or herself,

A magistrate of 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, mother or father, at such monthly rate, as the magistrate may think fit, and to pay the same to such person as the Magistrate from time to time direct.

Judicial Discourse

Normally within the meaning of this law, it is necessary to produce evidence, as to the ability or inability to maintain himself or herself. There have been numerous cases in courts where the person claiming maintenance has tried to mislead the court into believing that there is an inherent inability to maintain. The courts have considered these things as mere aberrations rather than punishing the person who has tried to misguide them into deciding in their favor.

Coming to wives, there ought to be no maintenance if the wife is educated and can earn.

The courts have been quite lenient in matters where children are involved. It is assumed that a wife has to look after children in the case of a separation between the husband and the wife. This is the reason why most cases of child custody in India are decided ubiquitously in favor of mothers. The husbands are ordered to pay maintenances. 

The courts consider several factors while deciding the amount of maintenance, at least in theory. They are:

  1. Earning capacity of the husband
  2. Earning capacity of the wife
  3. The education level of the husband
  4. The education level of the wife
  5. Earning capacity of the child if earning
  6. Educational expenses of the child
  7. Marital status if the child
  8. The age of the child
  9. The status of living of the husband and his social status

In practice, the scenario is entirely different, though. In an increasing number of cases, the hapless husbands are made to go through rigors of maintenance expenses heaped upon them without giving any importance to the factors listed above. The courts simply shrug off the case in a bid to close it within sixty days in case of interim maintenance. Seldom does an interim maintenance amount gets reduced in courts at the time of deciding the final maintenance.

By the time the case gets over, whether it is of divorce or a Domestic Violence, the parties lose that respect for each other’s feelings and restraints. The winning party, which is mostly the wife, puts maximum pressure citing the statute provisos, to extract money. In that sense, sixty days must be removed to let justice take its course properly.

Further, the Act provides strict punishments for non-payment of maintenance.

The husband shall be put in a lockup for one month for every default of maintenance.

How this rule can be justified? This is as absurd a rule as cutting rice from a field of potatoes. Consider this: where a husband is put in jail for non-payment of maintenance, how is he to be expected to pay it from inside the cell?

Is he expected to earn while inside the cell? This is impossible, and the rationale behind such a statute can only be to scare the poor husband into payment. What legal discourse can he have, in case he feels that he does not have enough money left? The appeals are costly, so he cannot possibly go to a Court of Appeal. The law is palpably silent. Beyond that, there is no proviso in the law.

When a husband is unable to pay, he has to be arrested. So what message is being given to society? That if you don’t pay, we will put you in cells along with murderers and pickpocketers and thugs and life convicts? We will jeopardize your career to such an extent that you will never be able to work again in your life? That if you don’t pay then be in a social stigma for the rest of your life? Never to be able to work again and lead a decent life?

Do the courts or the makers of such statutes think to what abysmal levels are they pushing young and innocent people? What is their fault? That they didn’t have enough money to obey an absurd, stupid court order? That they cannot appeal because of a lack of resources? Precisely, such a statute requires revision. If not, the lives of many will end in endless warfares.

The sixty-day period must be released. Only then justice can be expected.

The courts can be advised to follow the guidelines as per the statute of Section 125 but without the pressure of deciding the case within the fixed time frame.

Who is benefitting from this? Not justice, but wives, and lawyers from both sides.

Coming to the other side of the same argument, it may be contended that the benefitting party may be taken for a ride if the courts delay such decisions. The husbands will try to run away from the courts, thus delaying the delivery of justice. In such cases, the courts have the necessary powers at their disposal, and a prudent judge knows how to exercise those powers.

Conclusion

The unnecessary provisions must be removed if justice is to be allowed to take its proper course. This is the sixty-day period. The designers of the statute considered only one side of the coin but the other side of the same coin is much more important to be worthy of a look into.

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