Best Maintenance/Alimony Case Lawyer in Delhi
Best Maintenance/Alimony Case Lawyer in Delhi
Latest news September 07, 2018 1010
Pankaj Kumar & Co. | A Law Firm
15 Important Points and Supreme Court Judgements on Section 125 CRPC
1. Daughter is liable to pay maintenance to parents : Supreme Court in Dr. Mrs. Vijaya Manohar Arbat vs. Kashirao Rajaram Sawai & another (AIR 1987 SC 1100) said : An application under section 125(1)(d) of the Code of Criminal Procedure, 1973, by a father claiming maintenance from his married daughter is perfectly maintainable.
There can be no doubt that it is the moral obligation of a son or a daughter to maintain his or her parents. It is not desirable that even though a son or a daughter has sufficient means, his or her parents would starve. Apart from any law, the Indian Society casts a duty on the children of a person to maintain their parents if they are not in a position to maintain themselves. It is also their duty to look after their parents when they become old and infirm.
The parents will be entitled to claim maintenance against their daughter provided, however, the other conditions as mentioned in the section are fulfilled. Before ordering maintenance in favour of a father or a mother against their married daughter, the court must be satisfied that the daughter has sufficient means of her own independently of the means or income of her husband, and that the father or the mother, as the case may be, is unable to maintain himself or herself.
2. Stepmother can claim maintenance : Supreme Court in Kirtikant D. Vadodaria vs. State of Gujarat and another (1996(4) SCC 479) said: A childless stepmother may claim maintenance from her stepson provided she is widow or her husband, if living, is also incapable of supporting and maintaining her.
3. Nature of provisions u/s 125 CrPC is social justice legislation: Supreme Court in Badshah Vs. Urmila Badshah Godse & Another, (2014) 1 SCC 188 said: Nature of provisions u/s 125 CrPC is a social justice legislation. Distinct approach should be adopted while dealing with cases u/s 125 CrPC. Drift in approach from “adversarial” litigation to social context adjudication is needed.
4. Nature of proceeding u/s 125 Cr PC is civil: Supreme court in Vijay Kumar Prasad Vs. State of Bihar, (2004) 5 SCC 196 said: The jurisdiction of magistrate under chapter IX Cr PC is not strictly a criminal jurisdiction. Proceedings u/s 125 CrPC are civil in nature
5. Proceeding u/s 125 CrPC summary in nature: Supreme Court in Nagendrappa Natikar Vs. Neelamma, AIR 2013 SC 1541 : said Proceeding u/s 125 CrPC is summary in nature and intended to provide speedy remedy to wife.
6. Strict proof of marriage should not be insisted as pre-condition for maintenance u/s 125 CrPC: Supreme Court in Chanmuniya Vs. Virender Kumar Singh Kushwaha, JT 2010 (11) SC 132. said that: Construing the term ‘wife’ broad and expansive interpretation should be given to term ‘wife’ to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time, strict proof of marriage should not be a pre-condition for maintenance.
7. Live-in-relationship & presumption of marriage u/s 114 Evidence Act: Supreme Court in Madan Mohan Singh Vs. Rajanikant, AIR 2010 SC 2933 said that Live- in-relationship between parties if continued for a long time, cannot be termed in as “walk in & walk out” .There is a presumption of marriage between them.
8. Standard of proof of marriage under section 125 of CRPC: Supreme Court in Dwarika Prasad Satpathy Vs. Bidyut Prava Dixit, AIR 1999 SC 3348 said that the validity of the marriage for the purpose of summary proceeding u/s 125 Cr PC is to be determined on he basis of the evidence brought on record by the parties. The standard of proof of marriage in such proceeding is not as strict as is required in a trial of offence 494 of the IPC. If the claimant in proceedings u/s 125 of the code succeeds in showing that she and the respondent have lived together as husband and wife. The court can presume that they are legally wedded spouses, and in such a situation the party who denies the marital status can rebut the presumption.One it is admitted that the marriage procedure was followed then it is no necessary to further probe in to whether the said procedure was complete as per the Hindu rites in the proceedings u/s 125 Cr PC from the evidence which is led if the magistrate is prima facie satisfied with regard to the performance of marriage in proceedings u/s 125Cr PC which are of summary nature, strict proof of performance of essential rites is not required. After not disputing the paternity of the child born few days after marriage and after accepting the fact that marriage ceremony was performed, though not legally perfect as contended, it would hardly lie in the mouth of the husband to contend in proceeding u/s 125 Cr PC that there was no valid marriage as essential rites were not performed at the time of said marriage. The provision u/s 125 Cr PC is not to be utilized for defeating the rights conferred by the Legislature to the destitute women, children or parents who are victims of social environment. Moreover order passed u/s 125 Cr PC does not finally determine the rights and liabilities of parties and parties can file civil suit to have their status determined. Also see : Savitaben Vs. State of Gujarat, (2005) 3 SCC 636 (para 13)
9. Woman not lawfully married not to be treated as ‘wife’ and not entitled to maintenance u/s 125 Cr PC: Supreme Court in Savitaben Somabhai Bhatiya Vs. State of Gujarat, 2005 Cr LJ 2141 (SC), held that the legislature considered it necessary to include within the scope of Sec. 125 an illegitimate child but it has not done so with respect to woman not lawfully married. As such, however, desirable it may be to take note of the plight of the unfortunate woman, who unwittingly entered into wedlock with a married man the legislative intent being clearly reflected in Sec. 125 of the Cr PC, there is no scope for enlarging its scope by introducing any artificial definition to include woman not lawfully married in the expression ‘wife’. This may be an inadequacy in law, which only the legislature can undo. Even if it is true that husband was treating the woman as his wife it is really inconsequential. It is the intention of the legislature which is relevant and not the attitude of the party. The principle of estoppels cannot be pressed into service to defeat the provision of Sec. 125 of the Cr PC.
10. Second wife entitled to maintenance u/s 125 CrPC if the husband had concealed from her the subsistence of his first marriage: Supreme Court in Badshah Vs. Urmila Badshah Godse and Another, (2014) 1 SCC 188 said that Wherethehusband had duped the second wife by not revealing to her the fact of his earlier marriage, it has been held by the Supreme Court that the husband cannot deny maintenance to his second wife u/s 125 CrPC in such a case and he cannot be permitted to take advantage of his own wrong by raising the contention that such second marriage during the subsistence of his first marriage, being void under the Hindu Marriage Act, 1955, the second wife was not entitled to maintenance as she was not his legally wedded wife. The earlier judgments of the Supreme Court reported in (i) Yamunabai Anantrao Adhav Vs. Anantrao Shivram Adhav, (1988) 1 SCC 530 and (ii) Savitaben Somabhai Bhatiya Vs. State of Gujarat, (2005) 3 SCC 636 supporting the said contention of the husband would apply only in those circumstances where a woman marries a man with full knowledge of subsistence of his first marriage. Second wife thus having no knowledge of first subsisting marriage is to be treated as legally wedded wife for purposes of claiming maintenance
11. Bigamous child entitled to maintenance: Supreme Court in Bakulabai Vs. Gangaram, (1988) SCC 537. said that Even though bigamous marriage is illegal u/s 11 of the Hindu Marriage Act, 1955 but when after such marriage Hindu male and female are living together for a number of years as husband and wife, the child born as a result of such union acquires legitimate status u/s 16(1) of the above Act and such child is entitled to maintenance u/s 125 Cr PC. 12. Earning wife entitled to maintenance from her husband u/s 125 CrPC: Supreme Court in Chaturbhuj Vs. Sita Bai, AIR 2008 SC 530 said that Where the husband had placed material to show that the wife was earning some income, it has been held by the Hon’ble Supreme Court that it is not sufficient to rule out the application of Sec. 125 CrPC. It has to be established that with the amount she earned, the wife was able to maintain herself. Whether the deserted wife was unable to maintain herself, has to be decided on the basis of the material placed on record. Where the personal income of the wife is insufficient, she can claim maintenance u/s 125 CrPC. The test is whether the wife is in a position to maintain her in the way she was used to in the place of her husband. The factual conclusions of the court that the wife is unable to maintain herself cannot be interfered with in the absence of perversity
13. Muslim husband liable to pay maintenance to his divorced wife even after iddat period provided she has not remarried and is unable to maintain herself: Supreme Court in Danial Latifi Vs. Union of India, AIR 2001 SC 3958 (Five-Judge Bench). said that Muslim husband is liable to make reasonable and fare provision for future of divorced wife which includes maintenance. Liability to pay maintenance is not confined to iddat period. Divorced Muslim woman unable to maintain herself after iddat period can proceed u/s 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 against her relatives or wakf borad for maintenance. Such a scheme provided under the said Act is also equally beneficial like one provided u/s 125 CrPC. Provision under the said Act depriving Muslim women from applicability of Section 125 CrPC is not discriminatory or unconstitutional
Summary of law propounded by the Five-Judge Constitution Bench of the Supreme Court in the case of Danial Latifi Vs. Union of India, AIR 2001 SC 3958 : The summary of law propounded by the Five-Judge Constitution Bench of the Supreme Court in the case of Danial Latiff Vs. Union of India, AIR 2001 SC 3958 is as under :
A Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3(1)(a) of the Act (Muslim Women (Protection of Rights on Divorce) Act, 1986). Liability of Muslim husband to his divorced wife arising under Section 3(1)(a) of the Act to pay maintenance is not confined to iddat period. A divorced Muslim woman who has not remarried and who is not able to maintain herself after iddat period can proceed as provided under Section 4 of the Act against her relatives who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim law from such divorced woman including her children and parents. If any of the relatives being unable to pay maintenance, the Magistrate may direct the State Wakf Board established under the Act to pay such maintenance. The provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of India. 14. Wife and children of a Muslim husband having entered irregular marriage entitled to maintenance u/s 125 CrPC : Supreme Court in Chand Patel Vs. Bismillah Begum, (2008) 4 SCC 774. said that The bar of unlawful conjunction (jama bain-almahramain) renders a marriage irregular (fasid) and not void (batil). Consequently, under the Hanafi law as far as Muslims in India and concerned, an irregular marriage continues to subsist till terminated in accordance with law and the wife and the children of such marriage would be entitled to maintenance under the provision of Section 125 CrPC.
15. An order of maintenance u/s 125 CrPC does not disentitle the wife to claim maintenance under the Hindu Adoptions And Maintenance Act, 1956: Supreme Court in Nagendrappa Natikar Vs. Neelamma, AIR 2013 SC 1541. said that An order passed u/s 125 CrPC by compromise or otherwise cannot foreclose remedy available to a wife u/s 18(2) of the Hindu Adoptions And Maintenance Act, 1956. Order passed u/s 125 CrPC would not preclude wife from making claim u/s 18 of the 1956 Act.