The Supreme Court recently in the case of Anju Garg & Anr. v. Deepak
Kumar Garg[1] observed that:
The husband is required to earn money even by physical labour, if he is an
able-bodied, and could not avoid his obligation, except on legally permissible
grounds mentioned in the statute[2].
While allowing the appeal, Justice Dinesh Maheshwari and Justice Bela M.
Trivedi directed the respondent to pay maintenance amount of Rs. 10,000/-
per month to the appellant wife from the date of filing of Maintenance Petition
before the Family Court and granted the minor son a monthly maintenance
amount of Rs. 6,000/-.
It was also observed that section 125 of the Code of Criminal Procedure, 1973
was formulated to ameliorate the agony, anguish and financial suffering of a
woman who is required to leave her matrimonial home, so that some suitable
arrangements could be made to enable her to sustain herself and her children
as well.
The object of maintenance proceedings is not to punish a person for his past
neglect, but to prevent vagrancy and destitution of a deserted wife, by
providing her food, clothing, and shelter by a speedy remedy.
Maintenance under CrPC and Personal Laws
The Law for maintenance of wives, children and parents is provided under s.
125 of the CrPC. At the same time, the Law relating to maintenance for Hindus,
Muslims and Christians is provided in their respective personal laws. The law
of maintenance as given under s. 125 of CrPC is secular in nature and can be
evoked by any person, irrespective of their religion.
Under the Hindu Personal Law, the maintenance of women is given under
section 25 of the Hindu Marriage Act, 1955 and section 18 of the Hindu
Adoption and Maintenance Act, 1956. In the landmark judgment Badshah v.
Sou. Urmila Badshah Godse & Anr[3], it was held that the second wife is
also entitled to maintenance under the Section 125 of CrPC, under certain
circumstances.
Under the Muslim Personal Law, the husband who has divorced his wife has to
provide maintenance for her during the period of Iddat. Also s. 5 of the Muslim
Women (Protection of Rights on Divorce) Act, 1986 provides for the divorced
Muslim women to opt to be ruled either by secular law under the CrPC, or the
Muslim Personal Law.
In Abdul Latif Mondal v. Anuwara Khatun[4], a single Judge of the
Calcutta High Court has held that Sections 3, 4, 5, and 7 of the Act are available
to a divorced Muslim woman in addition to claims available under S. 125, CrPC
and an order of maintenance passed under Section 125, Cr. P.C. is not a nullity
under the Act[5].
Hence, Muslim women can claim maintenance under the CrPC or the Muslim
Women (Protection of Rights on Divorce) Act, 1986. Similarly, the Parsi
Marriage and Divorce Act, 1936, Indian Divorce Act, 1869 are some other Laws
which provide for divorce. In Inter-faith marriages governed by the Special
Marriage Act, 1954, maintenance is provided under Section 37 of the Act.
Analysis of Claim of Maintenance Under Criminal Procedure Code
Available for all neglected wives, discarded divorcees, abandoned children and
hapless parents, belonging to any religion, community or having any domicile,
who can lay hand [under section 126(1)(a), Criminal Procedure Code 1973, if
husband, father or son is found anywhere in India, the magistrate.
1st class, of the place has the jurisdiction to entertain a petition under section
125 of the Criminal Procedure Code] on their husbands, fathers or sons the
benevolent provision of section 125 which has the objective, as expressed by
Justice Krishna Iyer in 1979[6], “to ameliorate the economic condition of
neglected wives and discarded divorcees”[7].
In 1882, James Fitz James Stephen, who piloted the Code of Criminal
Procedure, spoke of section 488 of CrPC which was similar to the present
section 125, the objective of the provision being “preventing vagrancy or at
least of preventing its consequences.”
Then the provision was looked upon as a legislative effort to prevent vagrancy
or the consequences resulting from it. In 1963, Justice Subba Rao, noted that s.
488 was deliberated “to serve a social purpose.”[8] In 1985, Chandrachud C.J.
observed[9] that section 125 imposed on an individual obligation towards the
society to maintain some of his close relations listed therein so as to prevent
vagrancy and destitution.
According to sub-section (3) of section 125, a person is not obliged to pay
maintenance to his wife, who on his invitation Co live with him refuses to do so
without any just ground. Explanation to s. 125 provides that if a husband has
contracted marriage with another woman or keeps a mistress, it shall be
considered to be just ground for his wife’s refusal to live with him.
Explanation (b) to s. 125(1) of the code defines wife so as to include an un-remarried divorced wife. Under the old code ‘wife’ did not include a divorced
wife, and the result was that a divorced wife was not entitled to maintenance.
Sub-section (4) of section 125 lays down that a wife shall not shall be entitled to
receive an allowance from her husband under this section if she is living in
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adultery, or in case she refuses to live with her husband without any sufficient
reason or if by mutual consent, they are living separately.
Sub-section (5) of section 125 provides that:
On having proof that any wife in whose favour an order has been made under
this section is living in adultery or if she refuses to live with her husband
without sufficient reason or that by mutual consent, they are living separately,
the Magistrate shall cancel the order.
Judicial Precedents and Observations made in the Anju Garg Case
The appeal made to the Supreme Court directed the dismissal of revision
petition by the Punjab and Haryana High Court by which the appellants
challenged the order of the District Judge, Family Court-1, Faridabad,
Haryana.
In the said order the Family Court had dismissed the Maintenance Petition
filed by the appellant wife and her daughter under Section 125 of CrPC but
granted maintenance to the minor son.
The Supreme court while pronouncing the judgment noted that, Section 125 of
CrPC was conceived to ameliorate the agony, anguish and financial suffering of
a woman facing cruelty or harassment who has left the matrimonial home, so
that some suitable arrangements could be made to enable her to sustain herself
and her children, as observed in the case of Bhuwan Mohan Singh vs.
Meena & Ors.[10].
The Family Court indeed disregarded the basic canon of law that it is the
sacrosanct duty of the husband to provide financial support to the wife and
minor children. Taking this canon of law in consideration, the Court opined
that the husband is required to earn money even by physical labour, if he is
able-bodied, and he could not avoid his obligation, except on the legally
permissible grounds mentioned in the statute.
In Chaturbhuj v. Sita Bai[11], the object of maintenance proceedings is
explained as not to punish a person for his past acts, but to prevent vagrancy
and destitution of a deserted wife, by providing her food, clothing, and shelter
by a speedy remedy.
Conclusion:
As settled by the Supreme Court, Section 125 CrPC is a measure of social justice
and is specially enacted to protect women and children. It also falls within the
Constitutional ambit of Article 15(3), fortified by Article 39 of the Constitution
of India.
The court noted that the appellant wife was harassed and subjected to cruelty
by the respondent, which had constrained her to leave the matrimonial home
along with her children and the respondent had failed and neglected to
maintain her and her children while allowing the appeal. In the light of the
above discussed case laws and reasoning of the Apex court, it is clear that the
judgment in the Anju Garg case will protect the interests of thousands of
women and children across India.
End-Notes:
1. Anju Garg & Anr. v. Deepak Kumar Garg, Criminal Appeal No. 1693 Of
2022.
2. Id at 8.
3. Badshah v. Sou. Urmila Badshah Godse & Anr (2014) 1 SCC 188.
4. Abdul Latif Mondal v. Anuwara Khatun 2002 Cri LJ 2282.
5. S. Shakeela v. S. Khaleel, 2008 SCC OnLine AP 875.
6. Bai Tahira v. Ali Hussain Fissalli(1979) 2 SCC 316 : A.I.R. 1979 S.C. 362
7. Claim of Maintenance Under Criminal Procedure Code, Paras Diwan, 27
JILI (1985) 291.
8. Jagir Kaur v. Jaswant Singh, A.I.R. 1963 S.C. 1521 at 1525.
9. Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556.
10. Bhuwan Mohan Singh v. Meena & Ors (2015) 6 SCC 353.
11. Chaturbhuj v. Sita Bai (2008) 2 SCC 316.
