Report No. 132
Conclusions and Recommendations
5.1. In the light of the discussion made in the earlier part of the report, the Commission is of the opinion that the law pertaining to maintenance of wives, parents and children embodied in Chapter IX of the Code requires to be revised by incorporating suitable amendments with a view to update the law. And in order to make it more just, more relevant, more purposeful and more effective, so as to sub-serve the purpose of the legislation. Modification is called for to the extent and in the manner indicated here below:-
(1) The statutory ceiling of Rs. 500 incorporated in section 125(1), which precludes a magistrate from awarding a monthly allowance for maintenance at a rate exceeding Rs. 500 in favour of the wife, the children and the parents entitled to claim such maintenance from a person who, having sufficient means, neglects or refuse to maintain his wife, children or parents falling in the category described in clauses (b), (c) and (d) of section 125(1), deserves to be removed.
Because, it has become irrelevant by reason of inflation and rise in the case of living since 1955 when the aforesaid figure was embodied and since imposition of such a statutory ceiling results in injustice and defeats the purpose for which the provision has been enacted. Besides, incorporating a statutory ceiling which cannot be updated without amending the law from time to time is impracticable and unnecessary. Consequential amendment will also have to be made in section 127(1) by deleting the reference to the ceiling of Rs. 500.
(See para. 3.4).
(2) An Explanation should 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.
(See para. 3.6).
(3) It needs to be clarified by adding an Explanation to sub-section (1) of section 125 that in determining the rates of the monthly allowance, the magistrate may take into account not only the expenditure needed for food, shelter, clothing, education of children, etc., but also such sum as may be needed for being set apart in order to meet future emergencies arising on account of accidents, sickness, physical disability or for any other reason.
(See para. 3.7).
(4) Sub-section (2) of section 125 should be so amended that the order of maintenance of operates from the date of the filling 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.
(See para. 3.5).
(5) First proviso to section 125(3) disabling a wife or claimant from recovering the maintenance amount on expiry of one year should be deleted.
(See para. 3.11).
(6) 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.
(See para. 3.12).
(7) 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.
(See para. 3.8).
(8) In determining the amount, a magistrate exercising powers under section 125
(a) may take into account not only the personal income of the person against whom the order for monthly allowance by way of maintenance is sought but also his other resources, such as, the property possessed by him, his interest, if any, in joint family properties and the fact that he can meet the obligation from the corpus of such properties;
(See para. 3.10).
(b) may also take into account the independent income of the wife, if any.
(See para. 3.7).
(9) 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 fit cases taking into account the facts and circumstances of the case.
(See para. 3.10).
(10) 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.
(See para. 3.10).
(11) 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.
(See para. 3.16).
(12) An order for monthly allowance shall not stand discharged or satisfied except by actual payment from time to time or with a settlement with the imprimatur of the court recording its satisfaction that the arrangement or settlement is for good consideration, genuine, voluntary, lawful and fair.
(See para. 3.17).
(13) 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.
(See paras. 3.13 and 3.14)
(14) 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.
(See para. 3.15)
(15) A special procedure for speedy disposal of the matters pertaining to maintenance under section 125, as outlined in Chapter IV of this report, should be incorporated in Chapter IX of the Code.
5.2. The Commission is confident that the suffering and distress of the neglected women, children and parents will be ameliorated in great measure and they will heave a sigh of relief if and when these recommendations are accepted and acted upon, and concluded this report on this note of hope.
V.S. Rama Devi,
Dated : 19th April 1989