Wife, child & parent can claim maintenance
Wife, children and parents are eligible to claim maintenance in the form of monthly rate under Section 125 of the Criminal Procedure Code, 1973 (CrPC).
To claim maintenance, a Wife, Child or Parent will have to file an application before the Judicial Magistrate. The Magistrate will grant such maintenance as he thinks fit.
A divorced woman can also file claim for maintenance, after her divorce. But if she is living in adultery she cannot claim. A wife refuses to live with her husband without sufficient reasons also cannot claim. When a wife remarries, she become ineligible to claim or receive maintenance. If the wife and husband live separately on mutual consent, she has no eligibility to claim maintenance.
Where an application to be filed
An application for maintenance can be filed before the Magistrate against any person in the district
- where he lives,
- where he or his wife resides or
- where he last resided with his wife.
Interim maintenance & litigation expenses
An interim maintenance can be claimed by any person when her/his maintenance claim is pending. Magistrate may then order for payment of interim maintenance.
Magistrate can also order for payment of litigation expenses against the person who is liable to pay interim maintenance, if you are eligible for maintenance.
An application for interim maintenance and litigation expenses will have to be disposed of within days from the date of service of notice.
The maintenance in all cases will be awarded from the date of filing the application for maintenance.
Satisfaction of the Magistrate crucial
The Magistrate will have to satisfy himself that the person, against whom maintenance is claimed, has neglected or refused to maintain, and he has sufficient means to pay maintenance.
Claimants may not have means to maintenance
The wife applying for maintenance must be one unable to maintain herself. Children who attained majority can claim maintenance when they are unable to maintain due to physical or mental abnormality or injury. Married daughters attained majority are not eligible to claim maintenance. A parent unable to maintain himself is also eligible to claim maintenance.
Change in maintenance when circumstances change
When there is any change in the circumstances the order of maintenance or interim maintenance can be changed or cancelled according to the circumstances.
If any other court allows maintenance in the meantime depending on the circumstances the Magistrate can alter his order.
Execution of the order
After getting the order of the Magistrate granting maintenance, the applicant will have to file an execution petition before the Magistrate at the place where the opposite party liable to pay maintenance resides.
Section 125(3) of the Cr.P.C provides that if the party against whom the order of maintenance is passed fails to comply with the order of maintenance, the same shall be recovered in the manner as provided for fines, and the Magistrate may award sentence of imprisonment for a term which may extend to one month, or until payment, whichever is earlier.
If there is no payment of maintenance due for `n’ number of months the defaulter in one Execution Petition can be sentenced to imprisonment up to a maximum of `n’ months, provided `n’ does not exceed 12.
If there is breach of payment of maintenance due for one particular month – notwithstanding the fact that such payment was not made for `n’ months from the date on which it became due, the defaulter can be sentenced only to maximum imprisonment for one month and not `n’ months. Even when the breach in respect of one particular month continues for any length of time, the maximum sentence for breach of the liability to pay one month’s maintenance continues to be one month only.
SC guidelines in maintenance
In regard to maintenance case, the SC, in Rajnesh v Neha, issued the following directions:
Issue of overlapping jurisdiction
To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, the Family Courts/District Courts/Magistrate Courts must have uniformity in procedures throughout the country as follows:
- where successive claims for maintenance are made by a party under different statutes, the Court would consider an adjustment or set- off, of the amount awarded in the previous proceeding/s, while determining whether any further amount is to be awarded in the subsequent proceeding;
- it is made mandatory for the applicant to disclose the previous proceeding and the orders passed therein, in the subsequent proceeding;
- if the order passed in the previous proceeding/s requires any modification or variation, it would be required to be done in the same proceeding.
Payment of Interim Maintenance
The Affidavit of Disclosure of Assets and Liabilities annexed as Enclosures I, II and III of the judgment in Rajnesh v Neha, as may be applicable, shall be filed by both parties in all maintenance proceedings, including pending proceedings before the concerned Family Court / District Court / Magistrates Court, as the case may be, throughout the country.
Determining the quantum of maintenance
For determining the quantum of maintenance payable to an applicant, the Court shall take into account the criteria enumerated in Part B – III of the above said judgment.
Above guidelines are not exhaustive
The guidelines stated in the judgement are not exhaustive. The concerned court may exercise its discretion to consider any other factor/s which may be necessary or of relevance in the facts and circumstances of a case.
Additional reading
- SC Judgement in Rajnesh v Neha delivered on 4 November, 2020
