Report No. 154

Appendix* II

132nd Report on "Need for Amendment of The Provisions of Chapter IX of the Code of Criminal Procedure, 1973, in Order to Ameliorate the Hardship and Mitigate the Distress of Neglected Women, Children and Parents"

1. Do you agree with the suggestions of the Law Commission in its 132nd Report that an Explanation be added to section 125(1) that the phrase "unable to maintain herself" relates to the then actual separate income of the wife, if any, and not to the possibility or potentiality of the wife being able to earn for herself by securing an employment or by exerting herself in future?

2. Do you agree with the recommendations of the Law Commission of India in its 132nd Report that sub-section (2) of section 125 should be so amended that the order of maintenance operates from the date of the filing of the application claiming monthly allowance by way of maintenance and the magistrate has no option or discretion to make it operative from the date of the magistrate's order awarding maintenance allowance?

3. Do you agree with the recommendations of the Law Commission of India in its 132nd Report that first proviso to section 125(3) disabling a wife or claimant from recovering the maintenance amount on expiry of one year should be deleted?

4. Do you agree with the recommendations of the Law Commission of India in its 132nd Report that proviso (2) to section 125(3) pertaining to consideration of the offer of the person (against whom an order for monthly allowance by way of maintenance is claimed) to maintain the wife after the passing of the order may be deleted?

5. Do you agree with the recommendations of the Law Commission of India in its 132nd Report that sub-sections (4) and (5) of section 125, depriving a wife from claiming maintenance if 'living in adultery', should be deleted inter alia as it is by and large invoked to embarrass and harass a wife?

6. Do you agree with the recommendations of the Law Commission of India in its 132nd Report that "the magistrate passing an order for maintenance under section 125 should be empowered to pass an order directing a person liable to pay the monthly allowance to deposit the monthly allowance for a period up to six months in advance in a fit case taking into account the facts and circumstances of the case?

7. Do you agree with the recommendations of the Law Commission of India in its 132nd Report that "a magistrate passing an order for maintenance under section 125 shall be empowered to issue an order against the employer of the person liable to pay the monthly allowance determined by him, directing such employer to deduct from the salary of such person a sum equivalent to the amount of maintenance determined by him and to deposit the same in the court within a week of such deduction from month to month whenever it appears appropriate to do so on account of the failure of such person to regularly pay the amount directly to the wife, child or parents in whose favour an order has been passed?

8. Do you agree with the recommendations of the Law Commission of India in its 132nd Report that "the amount of monthly allowance ordered to be paid, including the arrears, shall be a charge on the properties of the person against whom the order has been passed"?

9. Do you agree with the recommendations of the Law Commission of India in its 132nd Report that "an order for monthly allowance shall not stand discharged or satisfied except by actual payment from time to time or with a settlement of the court recording its satisfaction that the arrangement or settlement is for good consideration, genuine, voluntary, lawful and fair"?

10. Do you agree with the recommendations of the Law Commission of India in its 132nd Report that "a person aggrieved by an order of maintenance passed by the magistrate shall have a right of appeal to the Court of Sessions. However, when the appeal is directed against an order awarding maintenance, the appeal shall not be maintainable unless the appellant deposits the amount of arrears of maintenance from the date of institution of the petition till the date of the order under appeal in the court of the magistrate and produces along with the memorandum of appeal an affidavit to the effect that such amount has been deposited and future amount will be regularly deposited"?

11. Do you agree with the recommendations of the Law Commission of India in its 132nd Report that "an officer, to be designated as Maintenance Counsellor, shall be appointed by the State to represent the case of the wife, child or parent claiming maintenance free of cost as a measure of social welfare with the option to the concerned person to appoint an advocate of his or her choice at the cost of such person, if so desired."

12. Do you agree with the recommendations of the Law Commission of India in its 132nd Report that the following special procedure for speedy disposal of the matters pertaining to maintenance under section 125 should toe incorporated in Chapter 9 of the Code:

(1) Prescribing a time limit for filing a written statement or statement of objections coupled with conferment of the power on the magistrate to pass an order as prayed on failure of the respondent to file the statement within the prescribed time limit;

(2) deciding the matter on affidavits with opportunity to the other side to cross-examine the witnesses of the deponents; and

(3) requiring the magistrate as far as practicable to dispose of the matter within six months after hearing it from day to day.

*. The world 'Annexure' has been replaced by 'Appendix', here so as to avoid confusion.