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The Law of Maintenance

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Maintenance under Section 125 CrPC

Law of maintenance has a special significance in Indian society. A person is under a legal obligation to maintain all the members of the family including their wives, children, and parents. Maintenance in general means to preserve but in the legal sense means to provide some sort of support for a person’s living expenses so as to sustain themselves and fulfill his or her needs. In Indian jurisprudence provision regarding maintenance is imbibed in Section 125 CrPC and in various personal laws. The concept of maintenance finds its roots from Article 15(3) reinforced by Article 39 of the Constitution. Maintenance includes support in terms of food, shelter, clothing etc to be provided to the child, parents, and wife. The object of maintenance is to prevent immorality and hardships and improve the economic condition of women and children. Section 125 of the CrPC is independent of any personal laws and proceeding under this section is applicable to all irrespective of caste, creed or religion. The said provision has been enacted to avoid vagrancy by making those who can provide support to those who are unable to support themselves and have a moral claim to support. Maintenance can be claimed either during the pendency of proceedings or the final stage.

Requisites for Claiming Maintenance

Under section 125 CrPC, the burden lies upon the claimant claiming or asking for maintenance to prove that he/she is not able to maintain themselves. They also have to prove that they are refused or not being currently maintained by the person and do not have sufficient resources or means to maintain themselves. However, if a person is capable of earning though he is earning or not, it can be concluded as sufficient means and onus is on them to prove that they do not have sufficient means. The section also provides for special provision as to the maintenance of a minor married girl who is entitled to calm maintenance from her husband and if her husband is unable to maintain her then she can claim maintenance from her father, having sufficient means, until she becomes a major. Also, a wife claiming maintenance from husband shall not be entitled to maintenance if she is living in adultery, it refuses to live without any sufficient ground with her husband and if she is living separately with mutual consent. All these grounds must be present to claim maintenance under the section.

Persons Entitled to Claim Maintenance After the above-mentioned requisites are fulfilled following people are entitled to claim maintenance from a person:

  1. Wife
  2. The wife of a person is entitled to claim maintenance but she should be a legally wedded wife. Legal validity of marriage depends upon the personal laws applicable to the parties. Explanation to the section further states that the term wife includes a divorced woman. The age of wife is immaterial for purpose of claiming maintenance therefore even a minor wife is entitled to claim maintenance under the section. Any difference in the personal laws of maintenance will not invalidate the maintenance claimed under this section. Also, a wife claiming maintenance from husband shall not be entitled to maintenance if she is living in adultery, it refuses to live without any sufficient ground with her husband and if she is living separately with mutual consent.

  3. Legitimate or illegitimate minor child
  4. A legitimate or an illegitimate minor child is entitled to claim maintenance from a parent that is the child must be below the age of 18 years. Also if the child is unable to maintain himself it is immaterial that the child is married or not. The proviso to the section provides that a minor female married child is entitled to claim maintenance from her father if her husband is unable to maintain her. The section is applicable to all irrespective of one’s personal laws.

  5. Legitimate or illegitimate abnormal major child
  6. Apart from a minor child, a major child can also claim maintenance if he/she suffers from some abnormality. If a child suffers from any physical or mental abnormality or injury and is not able to maintain himself then he can claim maintenance under this section. However in case of a married daughter who has attained majority the liability to maintain is that of her husband and not of the father.

  7. Mother or father
  8. Mother and father of a person can claim maintenance under section 125 crpc. Father and mother may be adoptive father and mother and are within the ambit of father and mother and are entitled to claim maintenance under the section. In a number of judicial pronouncements, the court has held that a parent can claim from both his son and daughter and even from a married daughter. In another case, the court allowed a widow who had no children to take maintenance from her stepson. However, the section doesn’t put an obligation to maintain parents but entitle parents to claim maintenance if they are unable to sustain themselves.

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