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Report No. 132

3.7. Need for spelling out the criteria for quantification of the amount of maintenance.-

Section 125 as at present merely provides for awarding maintenance to the person entitled there to but it does not spell out or even indicate the relevant criteria for determining the quantum of maintenance which can be awarded to the successful claimant. This has resulted in the determination being made by and large on subjective approach of the concerned magistrate. It would be virtually impossible to make a survey of the maintenance amount being awarded by the magistrates in different States from time to time by reason of the paucity of the economic and manpower resources and the time constraint.

An analysis of the judgments of the different High Courts rendered in the context of section 125 of the Code for the years 1981, 1982, 1984, 1985, 1986 and 1987 reveals that very meager amounts were being awarded to the wife and the child.1 In order to illustrate the point, reference may be made to a decision rendered2 in 1981 wherein a husband whose salary was Rs. 472 was directed to pay Rs. 50 by way of maintenance for the child. In another case,3 a husband who was earning a salary of Rs. 600 per month was directed to pay Rs. 75 for the wife and Rs. 30 for the child.

In a 1984 case,4 a husband with an income of Rs. 600 was directed to pay Rs. 200 by way of maintenance, whereas a husband - a textile engineer -said to be earning Rs. 3,000 per month was directed to pay a sum of Rs. 500.5 In 1985,6 a husband with an income of Rs. 517 was directed to pay Rs. 75 per month and in 19877 a husband having an income of Rs. 900 was ordered to pay Rs. 300 per month. The reason for this pathetic state of affairs is apparent. In determining the amount of maintenance, perhaps a psychological factor operates on the mind of the magistrate which makes him take into account merely his monthly income and not all his resources.

It would appear that the magistrate accordingly correlates the monthly allowance by way of maintenance to the monthly income of the husband. It is not realised that apart from the monthly income, the husband or the person liable to pay the amount would also have properties and other resources from which adequate maintenance allowance can be paid by him. The assets, movable and immovable, from which the husband or such person can meet the liability perhaps do not enter into the reckoning.

It is not necessary that the husband or the liable person should pay only from his monthly income keeping his movable and immovable assets intact. The issue regarding obligation to maintain his wife or his child or this parent having been decided in favour of the claimant, the obligation need not be dependent on the size of his income. His other resources and assets from which he can meet his obligation cannot be disregarded.

It is, therefore, essential to provide by a suitable amendment that in determining the quantum of maintenance, not only the current income of the person liable to pay the allowance but also all his other resources and assets as existing on the date of the institution of the petition for maintenance may be taken into account with the end in view to award a sum considered just and fair to enable the claimant for allowance to maintain himself or herself on the basis of the need-based requirements of such neglected wife, child or parents, including the sum required for meeting future emergency needs of the claimant. It requires to be clarified that the need of the awardee not only for food, clothing, shelter, medicines, educational expenses, etc. but also the need to provide for unforeseen emergencies and expenses has to be taken into account.

1. See Appendix I

2. Padmanathan v. Bhargavi sarojini, 1981 Cr LI 826 (Ker).

3. Shahzadi Begum v. Mohd. Abdul, 1981 Cr Lj 1532 (AP).

4. Purna Bahadur v. Santa Bista, 1984 Cr LJ 1145 (Sikkim).

5. K. Narayan Rao v. Bhagyalakshmi, 1984 Cr LJ 276 (Kant).

6. Juliet Vasantha v. Antomy Marimuthu, 1985 Cr LI 1613 (Mad).

7. Mohd. Shakeel v. Shahana Praveen, 1987 Cr LJ 1509 (Del).

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 Back

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