Report No. 154
Procedure for Maintenance of Wives, Children and Parents
1. Sections 125-128 in Chapter IX of the Code of Criminal Procedure lay down a self-contained speedy procedure for provision of maintenance to wife, including divorced wives children and parents. The provisions are aimed at ensuring that the neglected wives, children and parents are not left destitute on the scrap-heap of society and consequently driven to a life of vagrancy, immorality and crime for their sustenance1.
1. Bhagwan Dutt v. Kamala Devi, (1975) 2 SCC 386.
2. These provisions are applicable to all persons, irrespective of the religions they profess, and thus have no relationship with the personal law of the parties1
1. Nanak Chand v. Chand Kishore Aggarwal, (1969) 3 SCC 802.
3. Since the comprehensive review of the Code in 1973, many problems have arisen in the working of these provisions. Though it is supposed to be a summary remedy to help wives, children and parents in distress, several factors leading to hardships and injustice have been visible in the operation of these provisions. As a consequence, the Law Commission undertook an exercise suo motu and rendered a comprehensive report in 1989.
One Hundred Thirty-Second Report entitled "Need for Amendment of the Provisions of Chapter IX of the Code of Criminal Procedure, 1973 in order to ameliorate the Hardships and mitigate the Distress of Neglected Women, Children and Parents". The Report contains several valuable recommendations to alleviate the hardships to women (wives), children and parents.1 However, the Code of Criminal Procedure (Amendment) Bill 1994 has not incorporated any of those recommendations.
The only amendment made in the Bill is the one relating to the quantum of maintenance, an increase in statutory ceiling from Rs. 500 to Rs. 1500. At the several workshops held under the auspices of the Law Commission of India, it was unanimously recommended that section 125 needs to be amended on the lines indicated below.
1. See Law Commission of India, 132nd Report, para. 3.4, (1989).
4. We may examine the following issues arising from the scope of section 125 creating hardship to awardees.
5. Ceiling.- The fixation of the ceiling of Rs. 500 made in 1955 and which continued in 1973 is a source of hardship and injustice to the claimants after a passage of more than 41 years.
The Law Commission in its 132nd Report strongly felt that the ceiling on the quantum of maintenance be dropped altogether. The Commission observed:
It cannot be overlooked that if a ceiling is retained, it would require to be revised from time to time taking into account the inflation also rise in cost of living. It would be extremely difficult to amend the provision periodically, time and again, for it would result in investment of legislative time unnecessarily. The present experience reinforces this apprehension in as much as the ceiling of Rs. 500 has remained unrevised for 30 years without anyone (including women's activist groups) even becoming aware of the resultant anomaly and injustice."
Accordingly, it recommended that the ceiling limit in sub-section (1) of section 125 and in the first proviso to sub-section (1) of section 127 be deleted.
We are of the view that the increase in ceiling from Rs. 500 to Rs. 1500 suggested in the 1994 Bill would not serve the purpose owing to spiralling inflationary conditions. We are also not in favour of dropping altogether the ceiling limit provided under the Code. We feel that justice would be done to awardees if the ceiling is raised to Rs. 5000. This view has found unanimous support in the various Workshops conducted by the Law Commission.
6.1. Date from which order for monthly payment of maintenance be made.- Section 125(2), as it stands, provides that monthly allowance shall be payable from the date of the order or from the date of the application for maintenance, if so ordered, by the magistrate. It is left to the discretion of the magistrate to order payment from the date of application for maintenance.
In view of the fact that right to claim maintenance existed on the date on which the petition was instituted and also because of the time-lag in the disposal of the proceeding in the courts of first instance, it would be fair and just that the amount of maintenance be payable from the date of the making of the application by the claimant. Section 125(2) needs to be amended accordingly.1
1. Law Commission of India, 132nd Report, para. 3.5; see also Premlata Sahai v. Ram Niranjan Sahat, 1989 Supp (2) SCC 731, wherein the Supreme Court held that reductions of amount of maintenance and making the same payable from date of order instead of the date of application was improper. The order of the magistrate was restored.
6.2. Should be concept of 'potentiality to earn' be included as a factor in the interpretation of the phrase 'unable to maintain herself' in section 125(1)(a)?-In section 488 of the Code of Criminal Procedure, 1898 the pre-condition "unable to maintain itself" existed in relation only to the child. But in section 125 of the Code of 1973 this condition has been expressly made applicable to the case of wife.
This phrase was introduced in 1973 for the first time in case of wives presumably in the light of conflict of decisions among some High Courts on the question whether separate income of the wife can be taken into account in determining the amount of maintenance payable under section 488 of the Code of 1898.
The Delhi High Court in Nanak Chand v. Chander Kishore, AIR 1969 Del 235 and the Punjab High Court in Major Joginder Singh v. Bibi Raj Mohinder Kaur, AIR 1960 Punj 249 had held that the separate income of the wife could not be taken into account.
But the Kerala High Court had ruled to the contrary in P.T. Ramankutty Achan v. Kalyanikutty, AIR 1971 Ker 22 This controversy was ultimately settled by the Supreme Court in Bhagwan Dutt's case in 1975 by overruling the Delhi and Punjab High Court decisions and upholding the Kerala High Court view. Since the law had not been settled by the time the Code of 1973 was formulated, the phrase "unable to maintain herself" was introduced.
6.3. The Bombay High Court has also held in Virnal's, 1981 Cr LJ 210 (Born) case that while construing the expression "unable to maintain herself," the concept of the able bodied person's ability to earn cannot be presume. However, the Kerala and Karnataka High Courts have held to the contrary1.
1. See Saraswati v. Madhavan, 1961 (2) Cr LJ 642 (Ker); Abdul Man v. Satima, 1974 Cr LJ 172 (Kant).
6.4. The Law Commission in its 132nd Report had recommended that there was no warrant to inject the concept of "potentiality to earn" in the expression "unable to maintain herself" in section 125(1)(a). The only condition is that the wife has no adequate income of her own for her maintenance on the date of the institution of the petition. Consequently, it was recommended that an Explanation should be added to section 125(1) that the phrase "unable to maintain herself concerns itself with the actual separate income, if any, of the wife and not with the possibility or potentiality of the wife being able to earn for herself by securing employment or by exerting herself" 1. We endorse the above view.
1. Law Commission of India, 132nd Report, para. 3.6.
7. Need for criteria for determining the quantum of maintenance.- An analysis of judicial decisions of High Courts1 on the amount of maintenance awarded reveals that the amount has invariably been determined with reference to the monthly income of the husband and not the assets, movable and immovable, of the husband on the date of the institution of the petition. The Law Commission in its 132nd Report suggested that for a fair and just determination of the amount, the provision may be amended to lay down that not only the monthly income of the husband but also all his other resources existing on the date of the institution of the petition, may be taken into account.
We reiterate the aforesaid recommendation.
1. Ibid., para. 3.7.
8.1. Recovery of Monthly Allowance: Problems.- The awardee is required to approach the court for enforcement of the order of maintenance every month if a recalcitrant person defaults or neglects to make payment regularly. This would involve considerable effort, costs for engaging legal counsel, etc. It is unlike the problem of a decree-holder in a civil matter where he has to file an execution application in one proceeding. In the present case, whenever there is a default, the aggrieved person has to go to Court4. To ameliorate the distress of the awardees the 132nd Report had recommended the following1:
"The Magistrate passing the order for monthly allowance should be empowered to direct the person held liable to pay the allowance to deposit in advance six months' allowance at the rate determined by him and keep it deposited till the order of maintenance holds the field unless, for reasons to be recorded in writing, he considers it unjust to do so in the circumstances of the case.
The magistrate must also be empowered to direct the employer, if any of the person held responsible to make a deduction of the amount of monthly allowance from the salary of the person held liable to pay it to the awardee in the manner specified by the learned magistrate. It should also be provided that wilful default in making the deduction will constitute contempt of court."
1. Ibid., para. 3.10.
8.2. First proviso to section 125(3) precludes the awardee from going to the court for issuance, of a warrant for recovery after the lapse of one year from the date on which it fell due. The Law Commission in its 132nd Report felt that the period of one year limitation was unjust and oppressive to the claimants and no prejudice would be caused to the person held liable if no period, of limitation exists. Accordingly the Commission recommended the deletion of the first proviso to section 125(3). We are in agreement with this view.
8.3. The second proviso to section 125(3) allows reopening the controversy, at the stage of recovery whether or not wife is entitled to refuse to live with the husband. This question would have been examined at the stage of determination of the right to maintenance on merits.
The Law Commission in its 132nd Report recommended the deletion of the proviso along with the explanation on the ground that "the existence of the provision serves no better purpose than providing a weapon of harassment to the errant husband, in as much as a husband can always make an application just in order to tire out the wronged wife who has won a decision in her favour after a prolonged, costly and unequal battle"1. We are in favour of the deletion as suggested above.
1. Law Commission of India, 132nd Report, para. 3.12.
9.1. Right of Appeal.- Under the existing law, there is no right to appeal against an order passed by the magistrate under section 125. Only a revision is possible. There is need to amend the law providing right to appeal in the following manner.
9.2. With the passing of the Family Courts Act, 1984, the jurisdiction to hear proceedings for maintenance is now vested in the family court under sections 7(1) and 7(2)(a). Consequently, wherever family courts have been set up, pending proceedings stood transferred to them. Under section 19 of the Family Courts Act an appeal is provided against every final decision of the family court.
In the very same state, there will be discrimination against two sets of litigants. One set under the jurisdiction of family courts will enjoy the right of appeal and the other set under the jurisdiction of the magistrate under section 125, will be deprived of the right of appeal.
This is patently discriminatory. Under the circumstances in order to bring uniformity and to avoid discrimination. Section 125 may be amended to provide for a right of appeal against an order passed by a magistrate, however, if the person liable to pay maintenance prefers an appeal, the appeal shall be maintainable, only when it is supported by an affidavit of the appellant to the effect that he has deposited or paid all arrears of maintenance and shall make future payments regularly.
The appellate court may be empowered to relax this rule in case of genuine hardship to the appellant and may extend the time for making the deposit or exempt him from making deposit of only portion of arrears.1 It is apposite that similar conditions be also imposed under the Family Courts Act.
1. Law Commission of India, 132rd Report, paras. 3.13 and 3.14.
9.3 Since section 125 procedure is summary for expeditious justice, it needs to be further streamlined for achieving the objective. One way is to empower the magistrate to decide the matter on affidavits with opportunity to the other party to cross-examine the deponents of the affidavits1. The procedure under section 126 in this regard should be summary for expeditious justice and as such we are recommending the deletion of summons procedure under the Code. Summary trial procedure for recording evidence etc., be adopted and the evidence by way of affidavits also be made admissible. Accordingly section 126(2) be amended.
1. Law Commission of India, 132nd Report, para. 4.4.
9.4 At the stage of execution of the magistrate's order, the awardees are put to great hardship. If the order is flouted with impunity what remedy will .the awardees have? It is necessary to empower the magistrate to attach the property of the person liable and sell in order to recover the amount. If the husband is employed, the magistrate shall have power to direct the employer to deduct the amount of maintenance and arrange the payment.
To give effect to the suggestion, section 128 has to be amended suitably. The magistrate may also pass orders for detaining such person in jail for a limited period. The magistrate may transmit the order for attachment and sale of the property to a civil Court with a request to enforce the order in the same manner in which a decree passed by a civil count may be executed. The civil court can enforce the order as if it was executing an order under rule 2A of Order XXXIX of the Code of Civil Procedure, 1908.