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Report No. 59

2.22. Nature of proceedings for maintenance.-

In dealing with the first point1, it may be relevant to refer briefly to the nature of the proceedings for maintenance under the Code of Criminal Procedure. It is well-known that, in substance, these proceedings empower the competent Magistrate to pass an order for the maintenance of wife and children. With the problem of children, we are not concerned in the present discussion. The condition precedent, which has to be satisfied by the petitioning wife under this section, is that though her husband has sufficient means, he neglects or refuses to maintain her, and, in the proceedings ensuing on such petition, one of the factors, which has to be considered by the Magistrate is whether the wife is justified in refusing to live with the husband even if he offers to maintain her on condition of her living with him.

If this question is answered in favour of the wife, then, subject to the other terms and conditions prescribed by the section, an order for maintenance in favour of the wife can be and is passed. It is plain that the main object of the proceedings permitted under the section is to prevent vagrancy by ordering the husband to support his wife. The provisions of this section are not in the nature of penal provisions; they are intended to serve the social purpose of compelling the husband to discharge his duty to maintain his wife on the ground that a default or failure on his part to discharge his duty may lead to the vagrancy of his wife.

It is necessary to emphasise that neglect to maintain one's wife is not an offence, and an application made by the wife against her husband for suitable action under this section is not a "complaint" within the meaning of the Code of Criminal Procedure. The proceeding is not a criminal proceeding, and does not end either in order of conviction or acquittal. Therefore, in such a proceeding, the husband can be, and almost always is, examined on oath as a witness in a civil case. As a result, the provision relating to examination of the "accused"2 does not apply to such proceedings. In other words, these proceedings though instituted under a section of the Code of Criminal Procedure, cannot be described as "criminal proceedings" as such.

1. Para. 2.21, supra.

2. Section 342, Cr. P.C., 1898 and corresponding provisions in the 1974 Code.

Hindu Marriage Act, 1955 and Special Marriage Act, 1954 Back

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