Source – Jharkhand High Court

Why in News?

Recently, the Jharkhand High Court in the matter of Ashok Kumar Singh v. The State of Jharkhand and Anr., has held that once the marital relationship is disproved, there cannot be any order of maintenance under the provisions of Section 125 of the Criminal Procedure Code, 1973 (CrPC).

What was the Background of Ashok Kumar Singh v. The State of Jharkhand and Anr. Case?

• Before the Jharkhand High Court, the present Criminal Revision Petition has been preferred against the order dated 16^th January 2020 passed by the learned Additional Principal Judge, Additional Family Court, Jamshedpur whereby the petitioner has been directed to pay Rs.4,000/- per month as maintenance to the applicant and further directed to pay Rs.2000/- as lumpsum as a litigation cost.
• The sole ground for challenge is that the applicant is not the legally married wife of the petitioner and they never lived together in that relationship.
• Allowing the petition, the High Court set aside the aforesaid order.

What were the Court’s Observations?

• Justice Gautam Kumar Choudhary observed that once the marital relationship is disproved, there cannot be any order of maintenance under section 125 of the CrPC.
• The Court further held that the cloud is on the factum of marriage itself. There is a presumption of marriage where there is evidence that parties were living together. But the said presumption is rebuttable presumption.

What is Section 125 of CrPC?

About:

Section 125 of CrPC deals with the order for maintenance of wives, children and parents whereas the same provision has been covered under Section 144 of the Bhartiya Nagarik Suraksha Sanhita (2023), BNSS. It states that -

(1) If any person having sufficient means neglects or refuses to maintain -

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself,

A Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate as such Magistrate thinks fit and to pay the same to such person as the Magistrate may from time to time direct..

Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means..

Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct.

Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.

Explanation - For the purposes of this Chapter:

(a) "minor" means a person who, under the provisions of the Indian Majority Act, 1875 is deemed not to have attained his majority.

(b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

(2) Any such allowance for the maintenance or interim maintenance and expenses of proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.

(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each months allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:

Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.

Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.

Explanation. - If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wifes refusal to live with him.

(4) No wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.

(5) On proof that any wife in whose favor an order has been made under this section in living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.

Case Law:

• In K. Vimal v. K. Veeraswamy (1991), the Supreme Court where it was held that Section 125 of the CrPC had been introduced for achieving a social purpose. The aim of this section is the welfare of the wife by providing her with the required shelter and food after the separation from the husband.