section 125 crpc – right to maintenance

Question

My husband is an engineer, and he is very short tempered. He used to torture me on every silly mistake. Due to his torture, I have decided to live separate with my two daughters. I am a post graduate in History and working as a teacher in a private school. My father is a retired government officer, so he has no sufficient means to take care of us.

I have filed a complaint about maintenance section 125, but the lawyer of my husband took a plea that I have sufficient means and no need for maintenance from the husband. The case is pending, is there any case law in my favour?

Question asked on 13/10/2015

Answered by: Advocate Shivendra

The wife, children, and parents have the right to get maintenance under Section 125 of the code of criminal procedure (CrPC). This section is applicable without discrimination of race, caste, religion, and creed. Maintenance is an essential right of destitute wife, children, and parent. 

Object 

Section 125 is enacted to protect the wife, children, and parents from vagrancy and destitution. This remedy is provided under criminal procedure because the legislature wanted to speed up the procedure of getting maintenance instead of the slow procedure of civil suit. Hence, a starving wife may get alimony faster under section 125 than section 24 of the Hindu Marriage Act.  

When the husband refuses to maintain his wife

If the husband, having sufficient means, refuses to support his wife then the wife has the right to claim maintenance under this section. In S.R.S. Shivaji Rakhpasare vs. Shivaje Bapu Rakhpasare the Bombay high court has explained that after marriage the husband must provide shelter and maintenance to the wife. If he neglects, the wife is legally entitled to have it from the court by petition under section 125.

In the course of getting maintenance under section 125 crpc, you have to prove that:

  • You are unable to maintain herself.
  • Your husband has sufficient means to maintain. 
  • Husband neglects or refuses to maintain.

You said that you are living separately from husband, so you have to prove that there is sufficient reason for separate living otherwise unable to get maintenance. 

Relation of husband and wife is very pious. Law expects that wife should live with husband and husband should protect and maintain her. When a wife has sufficient reason to live separately, she is also entitled to get maintenance.

When the wife has some earning

Mere earning of wife does not entitle her to get maintenance if she is indeed living in destitute. In Sunita Kachwaha vs. Anil Kachwaha AIR 2008; held by the Supreme Court that merely because the appellant wife is a qualified and educated lady and working for livelihood……. it is not sufficient to hold that she is in position to maintain herself. Husband is bound by law to support his wife and children notwithstanding that the wife is a working lady.

You are entitled to get maintenance under this section even though you have some earning. 

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Shivendra Pratap Singh

Advocate, Lucknow

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