It is to be noted that the statutory claim for maintenance of mother, as envisaged under S. 125(l)(rf), Cr.P.Code, 1973, is not dependent on her having discharged parental obligations during the childhood of the petitioner: Mahendrakumar v. Gulabbai 2001 Cr.L.J. 2111 (Bom.).
Interim maintenance.—Even on affidavits, interim maintenance can be granted: Suresh v. Lalita 2002 Cr.L.J. 380 (Raj.).
Date of order.—The order of maintenance may be passed effective from the date of application or at the discretion of the Magistrate from the date of the order: Arun Kumar v. Kamalesh (1989) 1 D.M.C. 449 (P.&H); Dasyam Elizabath Rani v. Dasyam Pradeep Kumar 2001 Cr.L.J. 47 (Andh, Pra.). But no special reason is to be assigned for granting maintenance from the date of application: K. Sivaram v. K. Mangalamba 1990 Cr.L.J. 1880 (Andh. Pra.). But in Nitha Ranjan Chakraborty v. Kalpana Chakrabarty 2002 Cr.L.J. 4768 (Cal.), it was held that the Court must have put a few words by way of reason as to why it was not granting maintenance from the date of order. But his omission to assign any such reason should not be carried to the extent of being taken as a ground for rendering the order liable to be set aside, if otherwise it is in order.
Enforcement of the order.—Normally, when the husband has the property, the Magistrate has to follow the procedure under S. 421, Cr.P.Code. Unless that procedure is followed, the husband cannot be sent to jail for execution of maintenance order: Shakuntalabai v. Nandkishore 1994 Cr.L.J. (N.O.C.) 435 (Madh. Pra.). The Magistrate cannot impose sentence for more than one month for non-compliance with order of maintenance: Shahada Khatoon v. Amjad AH (1999) 5 S.C.C. 672: 1999 S.C.C. (Cr.) 1029. It is immaterial whether there were arrears of 12 months or of any other duration. The material question is whether a warrant under S. 125(3) been issued or not and in case of one warrant issued under S. 125(3) of the Cr.P.Code, there can only be one imprisonment and the maximum imprisonment would be one month: Abdul Gafaoor v. Hameema Khatoon 2004 Cr.L.J. 1280 (Andh. Pra.) (D.B.). Even when the Muslim wife has been divorced subsequent to the passing of the order of maintenance under S. 125, Cr.P.Code, the recovery proceedings would not lapse for failure to exercise option under S. 5 of the Muslim Women (Protection of Rights on Divorce) Act, 1986: Bashir Khan v. Jamila Bee 1994 Cr.L.J. 361 (Madh. Pra.).
In view of the provisions of the Himachal Pradesh Panchayati Raj Act, 1994, if after issuance of notice by the Gram Panchayat, the defaulter does not come forward to pay the amount of maintenance, it is difficult for the Gram Panchayat to execute the order of maintenance and the only course left for it is to forward the order of maintenance for execution to the Judicial Magistrate in whose jurisdiction it is situated. However, the Court directed that a copy of this judgment be also sent to the Chief Secretary to the Government of Himachal Pradesh, to consider the desirability of amending the H.P. Panchayati Raj Act, 1994, to make appropriate provisions for execution of order passed by the Gram Panchayat under S. 125, Cr.P.Code: Padmo v. Surat Ram 2003 Cr.L.J. 237 (Him. Pra.).
Limitation for enforcement of the order.—Under the first proviso to S. 125(3), Cr.P.Code, limitation is one year from the date of order of maintenance. This is because that is the date on which maintenance becomes due and not from the date from which the maintenance is ordered to be paid: A. Ram v. Pushpa 1978 Cr.L.J. (N.O.C.) 43 (Him. Pra.); Takkalaipally Laxmamma v. Takkalaipally Rangaiah 1992 Cr.L.J. 266 (Andh. Pra.). Arrears of maintenance cannot be allowed to accumulate beyond a period of one year: Srinivasa Rao v. Rajeswari 1990 Cr.LJ. 2506 (Andh. Pra.).
No warrant for recovery of any amount due under S. 125, Cr.P.Code can be issued under S. 421, Cr.P.Code unless the application is made within one year from the date of order. The time during which revision is pending against the order of the Magistrate cannot be excluded for computing the period of one year: Bimla Devi v. Karan 1986 Cr.L.J. 521 (Ori.). Some High Courts have held that the application for execution within one year of the disposal of the revision petition is within time: P. Ataullah v. Memunisa Begum 1984 Cr.L.J. 1522 (Andh. Pra.);Maniben v. Manibhai 1983Cr.L.J. 1935 (Guj.).
Revision.—Where there was a positive finding of fact that the husband had failed to maintain the wife and neglected her, and, therefore, the order of maintenance was passed,
held, the revisional Court had absolutely no jurisdiction to upset that finding: Munesh Kumari v. Sheo Raj Singh 2003 Cr.L.J. 215 (All.).
126. Procedure.—(1) Proceedings under section 125 may be taken against any person in any district—
(a) where he is, or
(b) where he or his wife resides, or
(c) where he last resided with his wife, or as the case may be, with the mother of the illegitimate child.
(2) All evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed for summons-cases:
Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper.
(3) The Court in dealing with applications under section 125 shall have power to make such order as to costs as may be just.
COMMENTS
Procedure in maintenance proceeding.—Procedure for moving and for hearing a maintenance petition is laid down in S. 126. So far as the forum for making an application is concerned, the wife has been given the choice to apply where she resides in view of S. 126(£>): Dipak Banerjee v. Sudipta Banerjee 1988 Cr.L.J. 1627 (Cal.). When the petition is heard on taking evidence the Magistrate shall make a memorandum of substance of evidence of each witness examined by the parties. The enquiry cannot be made on affidavits: Gurunath Rao v. Venu Bai 1969 Cr.L.J. 1169 (Mys.). Recording of evidence in presence of opposite party-husband is necessary. But when inspite of service of notice, the opposite parties did not appear, the Magistrate may record the evidence ex parte and pass order of maintenance ex parte: Ramesh v. Jayashreeben 1982 Cr.L.J. 1460 (Bom.). Although a formal order is desirable that the husband is avoiding service yet the fact of avoiding service may be discernible from the record if the said fact is challenged: Balan NAIR v. Bhawani Amma A.I.R. 1987 Ker. 110: 1987 Cr.L.J. 399 (F.B.).
Ex parte order, remedy.—The remedy is primarily provided in the proviso to S. 126(2). In appropriate case a revision may be filed against such ex parte order: Balan NAIR v. Bhawani Amma A.I.R. 1987 Ker. 110: 1987 Cr.L.J. 399 (F.B.); S. Bhupinder Singh v. Narinder Kaur 1990 Cr.L.J. 2265 (Del.). The limitation for filing an application for setting aside the exparte order of maintenance is three months from the date of the order and not from the date of knowledge of the order: Amal Guha v. State 1989 Cr.L.J. 488 (Cal.). So when it is proved that no notice was served upon the opposite party, the ex parte order being non-est, is liable to be set aside: Sukhirthammal v. Subramanium 1985 Cr.L.J. 1294 (Mad.)…
In appropriate cases the delay may be condoned under S. 5 of the Limitation Act: Balan NAIR v. BhavaniAmma A.I.R. 1987 Ker. 110:1987 Cr.L.J. 399 (F.B.).
Quantum ham to be assessed.—The quantum of maintenance must be commensurate with the standard of living of the parties: Saraswati v. Shivswami (1987) 2 D.M.C. 5 (Mad.). The income of the husband and separate income of the wife, if any, may be taken into account in assessing maintenance to be awarded to the wife: Bhagwan Dutt v. Kamla Devi A.I.R. 1975 S.C. 83: (1975) 2 S.C.C. 386:1975 Cr.L.J. 40.
Territorial jurisdiction of Magistrate—(a) Generally.—Even temporary residence, if not casual, is sufficient to confer jurisdiction on Magistrate at that place or of the District concerned: Darshan Kumari v. Surinder Kumar (1995) 4 (Supp.) S.C.C. 137: 19% S.C.C. (Cr.) 44.
(b) In case of parents.—The benefit given to the wife and the children to initiate proceedings at the place where they reside is not given to the parents. Unlike Cls. (b) and (c) of S. 126(1), an application by the father or the mother claiming maintenance, has to be filed where the person from whom maintenance is claimed lives: Vijay Kumar Prasadv. State of Bihar A.I.R. 2004 S.C. 2123:2004 Cr.L.J. 2047.
127. Alteration in allowances.—5[(1) On proof of a change in the circumstances of any person, receiving, under section 125 a monthly allowance for the maintenance or interim maintenance, or ordered under the same section to pay a monthly allowance for the maintenance, or interim maintenance, to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration, as he thinks fit, in the allowance for the maintenance or the interim maintenance, as the case may be.]
(2) Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made under section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly.
(3) Where any order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that—
(a) the woman has, after the date of such divorce, remarried, cancel such order as from the date of her remarriage;
(b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order,—
(z) in the case where such sum was paid before such order, from the date on which such order was made;
(it) in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman;
(c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to 6[maintenance or interim maintenance, as the case may be,] after her divorce, cancel the order from the date thereof.
(4) At the time of making any decree for the recovery of any maintenance or dowry by any person, to whom a 7[monthly allowance for the maintenance
5. Substituted by Act 50 of 2001, S. 3, for sub-S. (1) (w.e.f. 24-9-2001). Prior to its substitution, sub-S. (1) read as under:—”(1) On proof of a change in the circumstances of any person, receiving, under Section 125 a monthly allowance, or ordered under the same section to pay a monthly allowance to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration in the allowance as he thinks fit:
Provided that if he increases the allowance, the monthly rate of five hundred rupees in the whole shall not be exceeded.”
6. Substituted by Act 50 of 2001, S. 3, for “maintenance” (w.e.f. 24-9-2001).
7. Substituted by Act 50 of 2001, S. 3, for “monthly allowance has been ordered”(w.e.f. 24-9-2001).
and interim maintenance or any of them has been ordered] to be paid under section 125, the Civil Court shall take into account the sum which has been paid to, or recovered by, such person 8[as monthly allowance for the maintenance and interim maintenance or any of them, as the case may be, in pursuance of] the said order.
State Amendments—[Maharashtral.—In its application to the State of Maharashtra, in section 127,—
(a) in sub-section (1), in the proviso, for the words “five hundred rupees”, substitute “fifteen hundred rupees”.
(b) in sub-section (4),—
(i) for the words “monthly allowance”, where they occur for the first time, substitute “maintenance allowance”;
(if) after the words “monthly allowance”, where they occur for the second time, insert “or, as the case may be, the lump-sum allowance”.—Maharashtra Act 21 of 1999, section 3 (w.e.f. 20-4-1999). [These State amendments were made prior to the enactment of the Code of Criminal Procedure, 2001 (Central Act 50 of 2001), section 3 (w.e.f. 24-9-2001)—Ed.]
[Rajasthan].—In its application to the State of Rajasthan, in section 127, sub-section (1), for the words ”five hundred” occurring after the words “the monthly rate of” and before the words “rupees in the whole”, substitute “two thousand five hundred”.—Rajasthan Act 3 of 2001, section 3.
[Tripura].—In its application to the State of Tripura, in section 127, sub-section (1), in the proviso, for the words “five hundred rupees”, substitute “one thousand rupees”.—Tripura Act 9 of 1999, sections (w.e.f. 94-1999). [This State amendment was made prior to the enactment of Code of Criminal Procedure (Amendment) Act, 2001 (Central Act 50 of 2001) by which the words “not exceeding five hundred rupees) in the whole” have been omitted (See section 2, Cr.P.Code (Amdt.) Act, 2001 (w.e.f. 24-9-2001)—Ed.]
[Uttar Pradesh].—In its application to the State of Uttar Pradesh, in section 127, subsection (1), in the proviso, for the words “five hundred rupees”, substitute “five thousand rupees”.—Uttar Pradesh Act 36 of 2000,section3 (w.e.f. 13-8-2001).
[West Bengal].—In its application to the State of West Bengal, in section 127, sub-section (1), in the proviso, for the words “five hundred rupees”, substitute “one thousand rupees”.—West Bengal Act 14 of 1995, section 2 (w.e.f. 2-8-1995). [This State amendment was made prior to the enactment of Code of Criminal Procedure (Amendment) Act, 2001 (Central Act 50 of 2001) by which the words “not exceeding five hundred rupees in the whole” have been omitted (See section 2, Cr.P.Code (Amdt.) Act, 2001 (w.e.f. 24-9-2001)—Ed.]
COMMENTS
Alteration of maintenance.—When there is change in the circumstance under which the original order of maintenance was passed, the Magistrate is competent either to enhance or to reduce the same: juydeb Chakraborty v. Bharati Chakravarty 1994 Cr.L.J. 2234 (Cal). Change of circumstance contemplates not only changes in relation to wife but also in relation to husband. So when the husband begins to earn more the wife can invoke S. 127, Cr.P.Code to enhance the maintenance: Meenakshi v. Balakrishnan 1980 Cr.L.J. 1200 (Mad.). When the wife begins to earn, the husband may apply either to set aside or to reduce the amount of maintenance: Abdul Salim v. Najima Begum 1980 Cr.L.J. 232 (AIL). When the maintenance of the child was fixed at Rs. 50 in 1984, it can be enhanced to Rs. 150 in view of inflation and increase of age of the child: Bakulabai v. Gangaram (1988) 1 S.C.C. 541:1988 S.C.C. (Cr.) 189. When it is proved that the wife gave birth to a baby from the loins of a third person, the order of maintenance is liable to be cancelled: Babulal v. Munna Bai (1987) 1 D.M.C. 100 (Ori.)._____________________________________
8. Substituted by Act 50 of 2001, S. 3, for “as monthly allowance in pursuance of” (w.e.f. 24-9-2001).
When an order of maintenance under S. 125, Cr.P.Code has become final, provisions of Muslim Women (Protection of Rights on Divorce) Act, 1986 does not entitle the parties to reopen the same. So such order cannot be cancelled only because the above Act has come into force: Anowaruddin Ahmed v. State 1989 Cr.L.J. (N.O.C.) 20 (Cal.) (D.B.); M.A Hameed v. Arifjan 1990 Cr.L.J. 96 (Andh. Pra.). A Muslim divorced wife can apply for enhancement of maintenance on the ground of increased living cost, because the maintenance granted to Muslim divorced women cannot be restricted to the period of iddat only: Hamidan v. Mohd. Rafiq 1994 Cr.L.J. 348 (All).
Even in respect of the Hindus, order of maintenance in favour of a wife is not liable to be cancelled on the ground that the husband obtained subsequently a decree for divorce on the ground of desertion: Mangilalv. Gitabai 1988 Cr.L.J. 1591: (1988)1 Crimes 600 (Madh. Pra.).
“Magistrate”—Meaning of.—The words “the Magistrate” would mean the Magistrate who has passed the first order of maintenance. Therefore, the petition under S. 127, Cr.P.Code will have to be filed before the Magistrate who has passed the first order of maintenance: Raj Kumar v. Shanta Bai 2002 Cr.L.J. 2894 (Raj.); G. Balraj v. Mallamma in 1984 Cr.L.J. 1170 (Andh. Pra.).
Enhanced maintenance if from date of application or date of order.—Whether the enhanced maintenance is to be ordered from the date of application or the date of the order is within the discretion of the Magistrate: S.S.N. Niphade v. N.S. Niphade (1995) 4 (Supp.) S.C.C. 243:1996 S.C.C (Cr.) 53.
Fart of inflation to be taken judicial notice of.—Fact of inflation resulting in fall in purchasing power of money and consequent rising cost of commodities can be taken judicial notice of by the Court: Dhan Raj v. Kishni 1998 Cr.L.J. 1312 (Raj.).
Retirement of husband.—The subsequent retirement of the husband is not such a change of circumstance for the Court to reduce the quantum of maintenance: T. Kausalya v. T. Namyana Reddy 1998 Cr.L.J. 1795 (Andh. Pra.).
128. Enforcement of order of maintenance.—A copy of the order of ‘[maintenance or interim maintenance and expenses of proceeding/ as the case may be,] shall be given without payment to the person in whose favour it is made, or to his guardian, if any, or to the person to 10[whom the allowance for the maintenance or the allowance for the interim maintenance and expenses of proceeding, as the case may be,] is to be paid; and such order may be enforced by any Magistrate in any place where the person against whom it is made may be, on such Magistrate being satisfied as to the identity of the parties and the non-payment of the “[allowance, or as the case may be, expenses, due].
9. Substituted by Act 50 of 2001, S. 4, for “maintenance” (w.e.f. 24-9-2001).
10. Substituted by Act 50 of 2001, S. 4, for “whom the allowance” (w.e.f. 24-9-2001).
11. Substituted by Act 50 of 2001, S. 4, for “allowance due” (w.e.f. 24-9-2001).
