Maintenance Case - FAQ - CrPC (Code of Criminal Procedure, 1973),

        Maintenance Case

         Frequently Asked Questions

 CrPC (Code of Criminal Procedure, 1973), 

With these notes and FAQ, we are trying to resolve all your queries in regard to the Maintenance case

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1) Who can file a petition under section 125 of the Criminal Procedure Code?

Under section 125 of Cr.P.C., any dependent, children, wife and parents can file the petition for maintenance.

2) What is the difference between Section 24 of Hindu Marriage Act and section 125 of Cr.P.C.?

There are 3 major differences between Section 24 of Hindu Marriage Act and section 125 of Cr.P.C.

a) Under section 24 of Hindu Marriage Act only person belonging to Hindu religion can claim for maintenance and Under section 125 of Cr.P.C., a person belonging to any religion can claim maintenance.

b) Under section 24 of Hindu Marriage Act, maintenance is received only for the duration of the case proceedings whereas under section 125 of Cr.P.C., maintenance is permanent.

c) Under Section 24 Hindu Marriage Act only husband and wife can claim for maintenance, on the other hand under section 125 of Cr.P.C., wife, parents and children can claim maintenance.

3) What is the difference between the provision of maintenance under Protection of Women from Domestic Violence Act, 2005 and section 125 of Cr.P.C.? Which out of the two can applicant claim?

Both proceedings are different from each other and there are many judgments in this regard. Both of these cases are decided according to merits. Applicant can claim maintenance wherever higher amount is decided.

4) How much maintenance is awarded by the Court? How is the amount of maintenance decided?

Both of the parties to the case are required to furnish their affidavit (as per the format prescribed by the Hon’ble Supreme Court of India) before the Hon’ble Court in which income, assets and expenditure are mentioned. Not only income documents but also the living status of the parties is considered. According to a Delhi High Court judgement wife get up to 33% of husband’s income as maintenance for herself. The amount of maintenance is determined based on various factors such as the income and financial status of the person who is liable to pay maintenance, the standard of living of the person claiming maintenance, and the needs and requirements of the person claiming maintenance.

5) How much time does a case under section 125 of CrPC usually takes? When will the petitioner get maintenance?

It is right that case proceedings take a long time because it takes time to produce evidence and witnesses, while one party levels allegations, the other party puts forward its defence and in some cases there are counter allegations. So an interim application is filed which is decided within in 60 days from the date of service to the opposite party. In extremely urgent cases, the Court may also grant ad-interim maintenance on the first date itself.

6) Under which provisions parents can ask for maintenance?

Parents can claim maintenance from their son/daughter either through Maintenance and Welfare of Parents and Senior Citizens Act or through section 125 of Cr.P.C.

7) How minor child and unsound mind person ask for maintenance?

A legal guardian, legal custodian or very next friend can claim maintenance on behalf of a child or a person of unsound mind.

8) When wife cannot ask for maintenance?

a) When Husband is incapable of earning that he is physically disables or of unsound mind and insane.

b) When wife is capable of earning and able to maintain herself.

c) If wife is living in adultery.

d) In case she has left the company of her husband without any valid reason.

9) How can we get maintenance order executed?

Once an order for grant of maintenance is passed, the petitioner may file an execution petition for the satisfaction of said order/award.

10) What are the remedies available against maintenance order? Provisions of appeal?

The order granting maintenance can be challenged before a higher court otherwise in case there is a change in circumstances/income/status of the parties then a remedy is available under section 127 of CrPC.

11) What is Section 125 of the CrPC?

Section 125 of the CrPC provides for the maintenance of a wife, children, and parents who are unable to maintain themselves.

12) What is the procedure to file a maintenance petition under Section 125?

To file a maintenance petition under Section 125, you need to file a petition before the Court. The petition should include details of the person who is liable to pay maintenance, the amount of maintenance required, and the reasons why maintenance is being sought.

13) Can a wife claim maintenance even if she is working?

Answer: Yes, a wife can claim maintenance even if she is working. The amount of maintenance will depend on various factors such as her income, her standard of living, and her financial requirements.

14) Is there any time limit for claiming maintenance under Section 125?

 Answer: No, there is no time limit for claiming maintenance under Section 125. However, the court may refuse to grant maintenance if the person claiming maintenance has remarried or is living in an adulterous relationship.

15) Can the maintenance amount be revised?

Answer: Yes, the maintenance amount can be revised if there is a change in the financial status of the person who is liable to pay maintenance or if there is a change in the needs and requirements of the person claiming maintenance.

16) What is the punishment for non-payment of maintenance?

If a person who is liable to pay maintenance fails to pay the same, he/she may be punished with imprisonment for a term which may extend to one month, or until the payment is made, whichever is earlier.

17) What constitutes ‘inability to maintain oneself’ under Section 125 CrPC?

Answer The term refers to situations where a person cannot sustain a basic standard of living due to lack of sufficient income or resources. It is assessed case-by-case, considering factors like health, age, income sources, and reasonable needs.

18) How is ‘earning capacity’ assessed in maintenance cases?

Answer The court evaluates factors such as the individual’s qualifications, work experience, health condition, and prevailing job opportunities to assess earning capacity. This helps determine if the person claiming maintenance has the potential to be self-sufficient.

19) Can maintenance be granted retroactively?

Answer Yes, courts can grant maintenance retroactively. The retrospective period typically starts from the date of filing the maintenance application.

20) What are the implications of cohabitation on maintenance claims?

Answer Cohabitation, especially in a relationship akin to marriage, may affect maintenance claims. The court may consider the financial support received during cohabitation when determining maintenance.

21) How does the court assess ‘standard of living’ in maintenance cases?

Answer The court looks at the lifestyle enjoyed by the claimant during the marriage, including factors like living conditions, social status, and the comforts they were accustomed to. This assessment helps in determining a fair maintenance amount.

22) Can grandparents claim maintenance from their grandchildren?

Answer Yes, under certain circumstances. If grandparents are unable to maintain themselves and their children are not in a position to support them, they can seek maintenance from their grandchildren.

23) How are educational qualifications considered in maintenance cases?

Answer Educational qualifications are taken into account to assess earning capacity. Higher qualifications might indicate a higher earning potential, potentially affecting the maintenance amount.

24) Can maintenance be denied if a wife refuses to live with her husband without a valid reason?

Answer Yes, if a wife refuses to live with her husband without any justifiable reason, she may not be entitled to maintenance, as observed in the case of ‘Mohan Kumar v. State of Karnataka’.

25) How does the court enforce maintenance orders against defaulting parties?

Answer The court can issue various orders, including attachment of salary or property, to enforce maintenance orders. Non-compliance can also lead to imprisonment, as per Section 125(3) of CrPC.

26) What are the legal remedies if maintenance is not paid regularly?

Answer Legal remedies include filing for the execution of the maintenance order in the court. The court may order the employer of the defaulting party to directly pay a portion of the salary to the claimant.

27) How does the court determine the ‘necessity’ in maintenance claims?

Answer The court considers factors like the claimant’s basic needs, standard of living, and any special circumstances like health issues to determine ‘necessity’.

28) What happens to maintenance orders if the paying spouse goes bankrupt?

Answer If the paying spouse goes bankrupt, the court may adjust the maintenance amount considering the changed financial circumstances.

29) Can a husband claim maintenance from his wife?

Answer Yes, under certain conditions, a husband can claim maintenance from his wife, especially if he is incapacitated and unable to earn a livelihood.

30) Can a wife claim maintenance during the pendency of a divorce case?

Answer Yes, a wife can claim maintenance during the pendency of a divorce case under both Section 24 of the Hindu Marriage Act and Section 125 of the CrPC.

31) What is the maximum percentage of income that can be claimed as maintenance?

Answer There is no fixed percentage; it varies case by case. Courts generally consider the husband’s income, the wife’s financial needs, and their standard of living.

32) How does disability (physical or mental) of a spouse affect maintenance decisions?

Answer Disability can be a significant factor, as it may affect the earning capacity of the spouse. The court takes this into consideration when determining maintenance amounts.

33) Can a spouse claim maintenance if they are in a live-in relationship?

Answer Maintenance claims in live-in relationships are complex and depend on several factors, including the duration and nature of the relationship.

34) How are assets and liabilities divided in maintenance cases?

Answer Assets and liabilities are not typically divided in maintenance cases. Maintenance focuses on providing financial support, not property division.

35) What is the impact of a spouse’s infidelity on maintenance claims?

Answer Infidelity can impact maintenance claims, especially if it leads to the breakdown of the marriage. However, it is just one of many factors considered by the court.

36) How is ‘voluntary unemployment’ or ‘underemployment’ treated in maintenance cases?

Answer Voluntary unemployment or underemployment can affect maintenance claims. Courts might consider the potential income that could be earned if properly employed.

37) How do cultural and religious factors influence maintenance decisions?

Answer While courts primarily consider legal standards, cultural and religious factors may play a role in understanding the parties’ circumstances.

38) Can maintenance be claimed by a spouse who has initiated the divorce?

Answer Yes, the spouse who initiates the divorce can still claim maintenance if they meet the necessary criteria.

39) What constitutes ‘adequate means’ for self-maintenance?

Answer ‘Adequate means’ refers to sufficient financial resources to maintain a standard of living similar to that enjoyed in the marital home.

40) How does the duration of separation affect maintenance claims?

Answer Longer durations of separation might impact maintenance claims, especially if the claimant has been self-sufficient during this period.

41) What are the implications of a spouse’s remarriage on child maintenance?

Answer A spouse’s remarriage doesn’t typically affect their obligation to provide child maintenance.

42) How are business incomes assessed for maintenance purposes?

Answer Business incomes are assessed based on profit and loss statements, tax returns, and other financial documents to determine the paying capacity.

43) Can a spouse be compelled to pay maintenance if they are pursuing higher education?

Answer A court may require a spouse to pay maintenance even if they are pursuing higher education, depending on their financial capacity and the needs of the claimant.

44) How are inherited properties considered in maintenance cases?

Answer Inherited properties may be considered in assessing the financial status of a spouse for maintenance purposes.

45) What are the maintenance rights of a spouse in a void or voidable marriage?

Answer In a void marriage, typically, there are no maintenance rights. In a voidable marriage, maintenance rights exist until the marriage is annulled.

46) Can maintenance be modified based on a change in the cost of living?

Answer Yes, maintenance can be modified to reflect changes in the cost of living or financial circumstances of the parties.

47) What is the role of ‘earning potential’ in maintenance cases?

Answer ‘Earning potential’ refers to the ability of a spouse to earn income based on their skills, qualifications, and job opportunities.

48) How is maintenance affected by the presence of joint bank accounts and shared assets?

Answer Joint bank accounts and shared assets may be considered when assessing the financial situation of the parties for maintenance purposes.

49) What legal recourse is available for non-payment of interim maintenance?

Answer Legal recourse includes filing an execution petition to enforce the interim maintenance order

50) Can a spouse claim maintenance if they are self-sufficient but have dependent children?

Answer Yes, a self-sufficient spouse can still claim maintenance for their dependent children, focusing on the children’s needs and requirements.

51) How are educational expenses for children considered in maintenance cases?

Answer Educational expenses are a crucial factor in maintenance cases involving children. The court considers these expenses to ensure that the children’s education is not disrupted due to financial constraints post-separation or divorce.

52) What are the consequences of hiding assets or income during maintenance case proceedings?

Answer Hiding assets or income in maintenance cases is viewed seriously by courts and can lead to adverse consequences, including revision of maintenance amounts and legal penalties for misleading the court.

53) Can a wife claim maintenance if the husband is unemployed?

Yes, a wife can claim maintenance even if the husband is unemployed. The court may consider the husband’s potential earning capacity, assets, and other means while deciding the maintenance amount.

54) How are maintenance claims affected in case of a second marriage?

Maintenance claims can be affected by a second marriage. For example, if a husband remarries, his financial responsibilities towards the second wife are considered when determining maintenance for the first wife.

55) Can maintenance be claimed by a spouse living separately without a divorce?

Yes, a spouse living separately without a divorce can still claim maintenance. The claimant must prove they are unable to maintain themselves and that living separately is justified.

56) How does remarriage of a spouse affect existing maintenance orders?

Remarriage of the spouse receiving maintenance can lead to termination or modification of the maintenance order, as the financial support from the new marriage is taken into account.

57) Can a working wife claim maintenance for her child?

Yes, a working wife can claim maintenance for her child. The child’s maintenance is determined based on both parents’ incomes and the child’s needs.

58) What role does adultery play in deciding maintenance cases?

Adultery can influence maintenance decisions, particularly if it is the cause of the marriage breakdown. However, maintenance is primarily determined based on financial needs and capacities.

59) How are maintenance claims settled in case of NRI spouses?

Maintenance claims involving NRI spouses are settled based on the jurisdiction applicable and the NRI’s income and assets, both in India and abroad.

60) Are there any tax implications on maintenance received or paid?

In many jurisdictions, maintenance received can be taxable for the recipient and tax-deductible for the payer. However, this depends on specific tax laws which can vary.

61) Are there any specific provisions for maintenance in cases involving senior citizens?

Answer Senior citizens can claim maintenance under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, in addition to Section 125 of the CrPC.

62) How does the duration of marriage impact maintenance claims?

Answer The duration of marriage can influence maintenance claims. Longer marriages may lead to higher maintenance awards, considering the longer period of financial interdependence and lifestyle.

63) What is the role of a woman’s own property in determining maintenance?

Answer A woman’s own property and income are considered when determining maintenance. The court assesses her financial capacity and the property’s potential to generate income to determine if and how much maintenance is required.

Written and Submitted by

Vinod Kumar Goyal Advocate - Supreme Court of India

Founder – VKG Law Firm

 Emeritus Counsel Govt. of NCT of Delhi

Chairman – All India Lawyers’ Forum ( National Executive)