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Sec 125 Code of Criminal Procedure: ORDER FOR MAINTENANCE OF WIVES, CHILDREN AND PARENTS:
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.
KEY FINDINGS IN RELATION TO SEC 125 (CRPC) – ORDER FOR MAINTENANCE:
a) The object of Sec. 125 is
- to achieve a social purpose i.e to prevent vagrancy and destitution.
- To protect women and children
- To assist women and children in distress
b) Speedy Remedy - Sec.125 provides a speedy and summary remedy by way of summary procedure.
c) No Limitation – when no period of limitation is provided under Sec 125 Crpc, the wife can claim maintenance at any time as the right is continuing.
d) Claim for maintenance for more than one valid wives – if the existence of more than one wife under the personal law of the party is legal, the legal wives are entitled to apply for maintenance.
e) Essential conditions – the essential conditions for grant of maintenance are that
- A person having sufficient means
- Is refusing or neglecting to maintain
- His wife, legitimate or illegitimate children or parents who are unable to maintain himself or herself.
Only because the wife and children had left the house on their own, is no ground to disentitle them to maintenance.
Where the wife had left her matrimonial home without any justifiable ground, she would not be entitled to the grant of maintenance.
- The expression “means” does not signify only visible means, such as, real property or definite employment.
- If a man is healthy and able-bodied, he must be held as having means to support his wife, child or parent.
- Once the person has the capacity to earn, he cannot escape the liability to maintain under S125.
- Even if a husband is declared insolvent, the husband cannot take the plea that he has no sufficient means to maintain his wife and children.
UNABLE TO MAINTAIN HERSELF:
- In order that a wife can apply for maintenance for herself, she has to allege in the petition and prove before the Magistrate that she is unable to maintain herself.
- The expression “unable to maintain herself” means unable to earn a livelihood.
- The earnings must be such as to maintain the wife without depending upon others.
- Merely because the wife earns a paltry amount, it cannot be said that she has sufficient means to maintain.
f) If the magistrate is prima facie satisfied with regard to the performance of marriage in proceedings under S125, strict proof of performance of essential rites is not required.
g) A Divorced wife is entitled to and claim maintenance till she is remarried. So divorce does not end the right to maintenance under S.125 Cr.PC.
h) When the wife is living in adultery she cannot claim maintenance in view of S.125(4) of Cr.PC. “living in adultery” means continuous course of adulterous conduct more or less continuous. An occasional lapse would not be sufficient to refuse maintenance. It is for the husband to prove that the wife is living in adultery. When the respondent had already been divorced by the petitioner, she could not be refused the grant of maintenance on the ground that she was living in adultery.
i) Even if the mother is guilty of adultery and is disentitled to get maintenance, the maintenance of the children living with the mother cannot be refused. Mere suspicion of the husband that the child was born to his wife through adultery cannot disentitle the child of the maintenance.
j) Any parent unable to maintain himself or herself can get maintenance from their son or daughter having sufficient means. An adult daughter is bound to maintain her parents. Mothers include adoptive mothers but not step mothers.
k) MUSLIM DIVORCED WOMEN: Till the Muslim Women (protection of Rights on Divorce) act 1986 came into force, a muslim divorced woman had the right to apply for maintenance under S125. With the Muslim Women (protection of Rights on Divorce) act 1986 coming into force a divorced muslim woman cannot move any application for maintenance under S 125 of Cr.PC. It is only when the divorced wife and ex-husband mutually agree to take recourse under S125 such an application becomes maintainable
GROUNDS FOR DIVORCE FOR BOTH IN INDIA:
- Adultery – voluntary sexual intercourse with any person other than spouse. Does not include rape. One single act of adultery is enough for divorce or judicial separation.
- Cruelty – concept of cruelty includes conduct or such character as to have caused danger to life, limb or health, bodily or mentally or as to have risen to reasonable apprehension of such danger. Mental cruelty is more severe than physical cruelty. Scolding or nagging has also been considered as cruelty. Also, when a husband tried to strangulate wifes brother and his younger son in a fit of insanity he was held to be cruel. Thus, temporary insanity or schizophrenia cannot be an argument against the claim of cruelty.
- Desertion – when a spouse permenanty abandons the other without any reasonable cause and without the consent of the other for a period of not less than 2 years.
- Conversion – when a party has ceased to be a hindu by conversion to another religion.
- Veneral disease
- Renunciation – when a party has renounced the world by entering into any religious order.
- Civil/social death – that the other party has not been heard of as being alive for a period of seven years or more, by the people who would naturally have heard of the party, had that party been alive.
GROUNDS OF DIVORCE FOR WIFE IN INDIA:
- Rape, sodomy or bestiality
- Repudiation of marriage – in the case of child marriages.