10 Important Judgments on Right to Maintenance of Wife u/s. 125 of Code of Criminal Procedure 1973

Harshit Sharma | Amity Law School, Madhya Pradesh | 4th February 2020

Kamala & Ors v. M.R. Mohan Kumar (Criminal Appeal No. 2368-2369/2019)- Strict Proof of Marriage is not a pre-requisite for claiming maintenance u/s. 125 of CrPC.

The Supreme Court in this case has reiterated the settled principle of law that unlike other matrimonial proceedings, a strict proof of marriage is not essential in claim of maintenance under Section 125 of CrPC and that when the parties live together as husband and wife, there is a presumption u/s. 114 of the Indian Evidence Act 1872, that they are legally married couple for claim of maintenance under Section 125 CrPC.

The Two-Judge Bench of the Supreme Court in view of the evidence and material available on record allowed the appeal holding that there was a valid marriage between the parties and moreover a strict proof of marriage was not a pre-requisite for claiming maintenance under Section 125 of CrPC. The other observations made by the Apex Court in the case are as under:

The Supreme Court also made reference to its judgment in the case of Dwarika Prasad Satpathy v. Bidyut Prava Dixit [(1999) 7 SCC 675], wherein it was held that the standard of proof of marriage in a Section 125 proceeding is not as strict as is required in a trial for an offence under Section 494 IPC. It was also noted in the case that an application under Section 125 does not really determine the rights and obligations of the parties as the section is enacted with a view to provide a summary remedy to neglected wives to obtain maintenance.

The Apex Court in this case also remarked that a broad and expansive interpretation should be given to the term “wife” to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time, and strict proof of marriage should not be a precondition for maintenance under Section 125 CrPC, so as to fulfil the true spirit and essence of the beneficial provision of maintenance under Section 125 which is a social legislation and shall be interpreted accordingly. 

Savitaben Somabhai Bhatiya Vs. State of Gujarat, [2005 Cr.L.J. 2141 (SC)]- Women not lawfully married cannot be termed as wife and provision of Section 125 cannot be invoked by her for maintenance. 

Hon’ble Supreme Court has observed in this case that, ‘the legislature considered it necessary to include within the scope of Sec. 125 an illegitimate child but it has not done so with respect to woman not lawfully married. As such, however, desirable it may be to take note of the plight of the unfortunate woman, who unwittingly entered into wedlock with a married man the legislative intent being clearly reflected in Sec. 125 of the Cr PC, there is no scope for enlarging its scope by introducing any artificial definition to include woman not lawfully married in the expression ‘wife’. This may be an inadequacy in law, which only the legislature can undo. Even if it is true that husband was treating the woman as his wife it is really inconsequential. It is the intention of the legislature which is relevant and not the attitude of the party. The principle of estoppels cannot be pressed into service to defeat the provision of Sec. 125 of the Cr PC.’ 

Badshah Vs. Urmila Badshah Godse and Another, [(2014) 1 SCC 188]- Second wife is entitled to claim maintenance from husband u/s. 125 if the subsistence of first marriage is concealed by the husband. 

Hon’ble Supreme Court of India has held that, ‘The Second wife is entitled to maintenance under section 125 CrPC if the husband had concealed from her the subsistence of his first marriage.

Where the husband had duped the second wife by not revealing to her the fact of his earlier marriage, it has been held by the Supreme Court that the husband cannot deny maintenance to his second wife u/s 125 CrPC in such a case and he cannot be permitted to take advantage of his own wrong by raising the contention that such second marriage during the subsistence of his first marriage, being void under the Hindu Marriage Act, 1955, the second wife was not entitled to maintenance as she was not his legally wedded wife. The earlier judgments of the Supreme Court reported in (i) Yamunabai Anantrao Adhav Vs. Anantrao Shivram Adhav, (1988) 1 S.C.C. 530 and (ii) Savitaben Somabhai Bhatiya Vs. State of Gujarat, (2005) 3 S.C.C. 636 supporting the said contention of the husband would apply only in those circumstances where a woman marries a man with full knowledge of subsistence of his first marriage. Second wife thus having no knowledge of first subsisting marriage is to be treated as legally wedded wife for purposes of claiming maintenance.

Shailja & Anr. v. Khobanna [(2018) 12 SCC 199]– Mere capability of earning by the wife doesn’t disentitle her to claim maintenance from husband. 

In this case, the Supreme Court made a remarkable observation by stating that merely because the wife is capable of earning it is not a reason to reduce the maintenance awarded to her and said that whether a wife is capable of earning and is actually earning are two different factors.

What should be the Quantum of Maintenance?

The Supreme Court answered this question in the case of Kalyan Dey Chowdhury v. Rita Dey Chowdhury Nee Nandy by holding that 25% of the husband’s net salary would be just and proper as maintenance to wife.

The Supreme Court while deciding the review petition made reference to the case of Dr. Kulbhushan v. Raj Kumari & Anr., wherein it was held that 25% of the husband’s net salary would be just and proper to be awarded as maintenance to the respondent-wife.

Other remarkable observations made by the Court in the case were:

• That the amount of permanent alimony awarded to the wife must be befitting the status of the parties and the capacity of the spouse to pay maintenance.
• That maintenance is always dependant on the factual situation of the case and the Court would be justified in moulding the claim for maintenance passed on various factors.

A similar observation has been recently made by the High Court of Kerala in the case of Alphonsa Joseph v. Anand Joseph [2018 SCC OnLine Ker 5012], wherein the Court remarked that Maintenance to Wife can’t be rejected on ground that she is earning

The High Court thus, while making reference to Apex Court’s judgment in Sunita Kachwaha and Ors. V. Anil Kachwaha [(2014) 16 SCC 715], noted that even if the wife was earning some amount that may not be a reason to reject her application for maintenance outright.

It was also stated by the High Court that as held by the Apex Court in a catena of decisions, the concept of sustenance does not necessarily mean to live the life in penury and roam around for basic maintenance. The wife is entitled in law to lead a life in the same manner as she would have lived in the house of her husband with respect and dignity.

That the husband is not entitled to contend that he is not prepared to pay any maintenance and the courts are not expected to accept the blatant refusal of the husband with folded hands. If the Family Court decides to deny interim maintenance to the wife or pay a lesser amount than claimed to the minor child, it can only be on legally permissible reasons and not on the strength of a memo filed by the husband.

Chaturbhuj Vs. Sita Bai, [AIR 2008 SC 530]– Earning wife is also entitled to claim maintenance from husband u/s. 125 CrPC. 

The Apex Court held that, ‘Where the husband had placed material to show that the wife was earning some income, it has been held by the Hon’ble Supreme Court that it is not sufficient to rule out the application of Sec. 125 CrPC. It has to be established that with the amount she earned, the wife was able to maintain herself. Whether the deserted wife was unable to maintain herself, has to be decided on the basis of the material placed on record. Where the personal income of the wife is insufficient, she can claim maintenance u/s 125 CrPC. The test is whether the wife is in a position to maintain her in the way she was used to in the place of her husband. The factual conclusions of the court that the wife is unable to maintain herself cannot be interfered with in the absence of perversity.’ 

Manoj Kumar v. Champa Devi [Criminal Appeal No. 10137/2015]- Wife term to include ‘Divorced Wife’ which makes her entitle to claim maintenance from her former husband even after passing of decree of Divorce. 

In the case, the husband had contended that as the decree of divorce had been passed, he was under no obligation to pay maintenance to the wife as contemplated under Section 125(4) of CrPC. However, the High Court held that a divorced woman continues to enjoy the status of ‘wife’ for claiming maintenance under Section 125 of CrPC.

Danial Latifi v. Union of India (AIR 2001 SC 3958)- Muslim husband liable to pay maintenance to his divorced wife even after iddat period provided she has not remarried and is unable to maintain herself. 

The Constitutional Bench of Hon’ble Supreme Court held that Muslim husband is liable to make reasonable and fair provision for future of divorced wife which includes maintenance. Liability to pay maintenance is not confined to iddat period. Divorced Muslim woman unable to maintain herself after iddat period can proceed u/s 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 against her relatives or Wakf Board for maintenance. Such a scheme provided under the said Act is also equally beneficial like one provided u/s 125 CrPC. Provision under the said Act depriving Muslim women from applicability of Section 125 CrPC is not discriminatory or unconstitutional 

The following remarks were addressed by the 5-judge bench as, ‘A Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3(1)(a) of the Act (Muslim Women (Protection of Rights on Divorce) Act, 1986). Liability of Muslim husband to his divorced wife arising under Section 3(1)(a) of the Act to pay maintenance is not confined to iddat period.’ 

A divorced Muslim woman who has not remarried and who is not able to maintain herself after iddat period can proceed as provided under Section 4 of the Act against her relatives who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim law from such divorced woman including her children and parents. If any of the relatives being unable to pay maintenance, the Magistrate may direct the State Wakf Board established under the Act to pay such maintenance. 

Sachin Gupta v. Rachna Gupta (Delhi High Court- Criminal Revision No. 476/2018)– Maintenance Petition can be filed t nay place where the wife is residing. 

In the case, the Petitioner has challenged the Trial Court’s order, whereby petitioner’s application objecting Respondent wife’s claim for maintenance under section 125 of CrPC on the ground of territorial jurisdiction has been rejected. Here it would be relevant to mention that the Respondent had instituted application for maintenance in Delhi and the Petitioner opposed the same on the ground that in all proceedings except in these proceedings the Respondent has mentioned her residential address as Aligarh.

The Respondent on the other hand contended that though Aligarh is her parental home, she was residing in Delhi and had filed the petition in Delhi as she is living with her brother in Delhi.

The High Court of Delhi in dismissed the petition and made the following observations in the case: 

• The High Court of Delhi referred to Section 126 (1) of CrPC which stipulates that the proceedings under 125 CrPC may be filed in any district where the respondent resides or where his wife resides or where the respondent last resided with his wife, or as the case may be, with the mother of the illegitimate child. 

In view of the facts of the instant case, the High Court of Delhi noted that keeping in view of the fact that the wife can maintain a petition at any place where she is residing and the fact that the respondent has placed on record copies of her Aadhar Card, Voter ID Card, which reflect the address of Delhi, the Trial Court did not commit any error in rejecting the application of the petitioner holding that the Trial Court has territorial jurisdiction.

Ramchandra Laxman Kamble vs. Shobha Ramchandra Kamble And Anr. [Bombay High Court- Writ Petition No. 3439/ 2016]- Agreement to waive the right of maintenance by wife is unenforceable and is opposed to Public Policy. 

In an interesting judgment, the Bombay High Court has ruled that an agreement wherein the wife waives her right to claim maintenance under section 125 of Code of Criminal Procedure is opposed to Public Policy and hence in unenforceable.

It was also observed by the Court that the consent decrees made by the courts are in effect of nothing but contracts with the seal of the court super­added to them. Accordingly, if the term of the contract is itself opposed to public policy then, such term, is void and unenforceable. If the term is severable then, only the term can be declared as void. If the term is not severable, then, perhaps, the entire contract may fall.

Nagendrappa Natikar Vs. Neelamma [AIR 2013 SC 1541]– CrPC being a general law doesn’t preclude the wife from claiming maintenance under Hindu Adoptions and Maintenance Act, 1956 which is a special law. 

The Supreme Court said that an order passed u/s 125 CrPC by compromise or otherwise cannot foreclose remedy available to a wife u/s 18(2) of the Hindu Adoptions and Maintenance Act, 1956. Order passed u/s 125 CrPC would not preclude wife from making claim u/s 18 of the 1956 Act.