January 2023
Maintenance under Criminal Procedure Code
Dr. Anup P. Shah, Chartered Accountant
INTRODUCTION
The duty to maintain certain relatives is a subject covered by different statutes. The Hindu Adoption and Maintenance Act, 1956 deals with the maintenance to be provided by a Hindu male for his wife, parents, children and certain other relations. Another Hindu Law statute which deals with this is the Hindu Marriage Act, 1955. Maintenance payable by a Hindu to his wife is also covered under the Protection of Women from Domestic Violence Act, 2005. This Law applies to people of all religions.
However and interestingly, maintenance as an obligation is also covered under the Code of Criminal Procedure, 1973 (CrPC). The CrPC is a criminal procedure law, whilst maintenance is a civil obligation. Nevertheless, sections 125 to 128 of the CrPC deal with this important civil duty. The Bombay High Court in Zahid Ali Imdadali vs. Fahmida Begum 1988 (4) BomCR 366 has observed that the right of an aggrieved claiming maintenance u/s 125 of the CrPC was essentially a civil right. The remedies provided in the said sections were in the nature of civil rights. The proceedings u/s 125 were essentially civil in nature.
In Badshah vs. Urmila Badshah Godse (2014) 1 SCC 188, the Supreme Court explained that the purpose of these sections of the CrPC was to achieve “social justice”, which was the constitutional vision enshrined in the Preamble of the Constitution of India.
However and interestingly, maintenance as an obligation is also covered under the Code of Criminal Procedure, 1973 (CrPC). The CrPC is a criminal procedure law, whilst maintenance is a civil obligation. Nevertheless, sections 125 to 128 of the CrPC deal with this important civil duty. The Bombay High Court in Zahid Ali Imdadali vs. Fahmida Begum 1988 (4) BomCR 366 has observed that the right of an aggrieved claiming maintenance u/s 125 of the CrPC was essentially a civil right. The remedies provided in the said sections were in the nature of civil rights. The proceedings u/s 125 were essentially civil in nature.
In Badshah vs. Urmila Badshah Godse (2014) 1 SCC 188, the Supreme Court explained that the purpose of these sections of the CrPC was to achieve “social justice”, which was the constitutional vision enshrined in the Preamble of the Constitution of India.
APPLICABILITY
The provisions of the CrPC come into force where any person having sufficient means neglects or refuses to maintain:
(a) His wife who is unable to maintain herself;
(b) His minor child (even if illegitimate) unable to maintain itself;
(c) His major child (even if illegitimate) who cannot maintain itself owing to any physical/mental abnormality/injury; or
(d) His parent who is unable to maintain itself.
Thus, any of the above four categories could petition the Court, and if such proof of neglect/refusal exists, then the Court would order an interim/final maintenance order for the aggrieved on such terms as it deems fit. A First Class Judicial Magistrate (the starting point of Courts in the Criminal hierarchy) is empowered to pass such maintenance order.
The onus to prove neglect/refusal lies on the claimant. She/he must demonstrate willful default on the other person’s part.
The Supreme Court in Kirtikant D. Vadodaria vs. State of Gujarat (1996) 4 SCC 479 explained that the dominant and primary object of the section was to provide social justice to women, children, infirm parents etc., and to prevent destitut
(a) His wife who is unable to maintain herself;
(b) His minor child (even if illegitimate) unable to maintain itself;
(c) His major child (even if illegitimate) who cannot maintain itself owing to any physical/mental abnormality/injury; or
(d) His parent who is unable to maintain itself.
Thus, any of the above four categories could petition the Court, and if such proof of neglect/refusal exists, then the Court would order an interim/final maintenance order for the aggrieved on such terms as it deems fit. A First Class Judicial Magistrate (the starting point of Courts in the Criminal hierarchy) is empowered to pass such maintenance order.
The onus to prove neglect/refusal lies on the claimant. She/he must demonstrate willful default on the other person’s part.
The Supreme Court in Kirtikant D. Vadodaria vs. State of Gujarat (1996) 4 SCC 479 explained that the dominant and primary object of the section was to provide social justice to women, children, infirm parents etc., and to prevent destitut
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