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Laws are created in a certain milieu and 95% of the time, they will not be any different from common sense view of individuals, and norms of society. But 5% of the time, they may seem to be against common sense view or what seems reasonable to people. We will now look at where CrPC 125 stands in terms of common sense/norm of society versus any unreasonable points in it.

To dissect the CrPC 125, I will produce excerpt of important words and lines from the Bare Act of CrPC 125 and give my comments after that. That approach can be used by anyone to analyse the intent of any legal provision, and it's implications. I will also note down the open questions as we go along. If you can do this exercise properly, you will be doing better than 90% of men out there facing CrPC 125 cases!

Intent: maintenance of wives, children, parents. So CrPC 125 is meant not just for wives and children, but includes parents too. That reflects the Indian society (unlike western) where responsibility of parents and elderly with no income falls on the earning men of the household.

Implications: This can be used to advantage by asking parents to file maintenance under CrPC 125 on yourselves so as to reduce your income after paying them the maintenance. This is an advanced technique and will be discussed later.

Questions:

1. what is meant by the word "wives". Yes, this is very important as we will see later.

2. What is the exact definition of "children". Till 18 years of age? Till college education? Till they are married?

Intent: Cast a duty on any person (so far it could be either male or female), who has sufficient means (assets or income) but neglects or refuses to maintain.

Implications:

1. For CrPC 125 case to be filed on someone, that person should be proven to have sufficient means. The word "means" can mean both income or financial wherewithal. So let's say I am jobless for last 6 months without any income, but I have 5 lakh of liquid assets (can be converted to cash easily), then my wife could very well claim that I have sufficient means to pay maintenance. My sense is if the lawmaker wanted to mean it to be only current income, they would have mentioned income rather than means. So that is a first warning sign that one should not be complacent and hope that merely by leaving one's job one will be able to avoid maintenance.

Whether the meaning of "means" can be extended to immovable assets like residential house, property etc, probably in specific circumstances but in most practical cases, I doubt it can be extended to immovable assets.

Intent: Note the usage of words "neglects" and "refuses". The word "neglects" denote passive carelessness of one's responsibilities. The word "refuses" denotes a neglect of duty of higher order when someone has specifically demanded that you discharge your responsibility, but you still continue to refuse to do so.

Questions: Does the word "person" denote only a man or can it include women too?

Intent: Meant for "wife" who is unable to maintain herself.

Open question solved: Does the word "person" denote only a man or can it include women too?

Answer: Clause 1(a) says "his wife...", and the word "his" means the intent is to cast the duty only on men, not women.

Questions:
What exactly is meant by "unable to maintain herself"? Does it include only basic necessities of life like food, clothing, shelter or does it to be able to maintain a particular lifestyle?

Intent: The CrPC 125 seems to be a beneficial legislation to take care of all children in society whether borne within or out of wedlock, and their responsibility is put on the biological father.

Implications: children are covered even if borne out of wedlock.

Question solved: What is the exact definition of "children". Till 18 years of age? Till college education? Till they are married?

Answer: Clause 1(b) clause says "minor child", so it means children up to 18 years of age which is the age of attaining majority in India, after which duty to pay maintenance to child(ren) is finished as per law. For children above 18 years of age, clause 1(c) says that father still has responsibility to maintain a son or daughter if they have any physical or mental abnormality or injury which makes them unable to maintain themselves. But the responsibility of a father under CrPC 125 ceases when a daughter gets married, and she being above 18 years of age too. So the bottom line is that as per law children above age of 18 are supposed to maintain themselves barring physical or mental abnormality or injury which prevents them from doing so.

Intent: Reflects the social norm in India that parents need to be maintained by children, nothing surprising here.

Implications: Either or both parents are covered too, but only if they don't have means to maintain themselves. Also, if respondent's (on whom CrPC 125 case is filed) father is able to maintain himself, then in most cases the responsibility of maintaining respondent's mother(his wife) will also shift on him. Because a father who is unable to maintain himself cannot be expected to maintain his wife (respondent's mother) since he can claim to have no means to do so. It also leads to a curious possibility that if a mother is being neglected both by her husband and by her son(s), she has the legal recourse to filing a CrPC 125 case on either her husband or on son(s), or maybe all of them together. The law doesn't seem to suggest that her first recourse lies in filing application on husband, or on son, for that matter.

Implications:

1. The jurisdiction of CrPC 125 cases lies with Magistrate of first class (JMFC), but it should be noted that after passing of the Family Courts Act, 1984, family courts have been established in many cities. These family courts have exclusive jurisdiction to try all matrimonial cases, and they also have exclusive jurisdiction to try CrPC 125 cases as per clause 8(b) of Family Courts Act, 1984 (given in Appendix D). It means that if a family court exists in any city/town, then a CrPC 125 application can be filed only in the family courts in that city.

2. The fact about neglect or refusal to maintain has to be proven by the complainant. This only means that the wife if she files a complaint against husband, has to make some allegations like "she was thrown out of the house", "husband is abusive", "I faced violence", and so on. Without making some allegations of the above kind, if she simply files an application, it is liable to be rejected since prima-facie there is no allegation of neglect or refusal whatsoever on part of husband.

3. Maintenance amount is paid monthly. There is no provision of any lumpsum payment for next 1 year or next 2 years under CrPC 125, though in Maharashtra state's amendment to CrPC 125, there is provision to pay lumpsum for next 5 years. For most practical purposes, we can treat that maintenance under CrPC 125 will be monthly.

4. Amount of maintenance per month: There used to be maximum limit of Rs 500 and then Rs 1500 of maintenance, but after amendments to CrPC in 2001, that limit has been removed and the maintenance amount is left to discretion of the judge. It is probably not a coincidence that the number of maintenance and divorce cases started rising after the year 2000. I used to believe that the main reason was higher number of highly paid jobs being created in IT/BPO/financial/insurance sectors after year 2000. But we should not ignore that laws themselves create incentives and disincentives for people, and with the maximum limit of Rs 1500 being removed, it would become 'worthwhile' for at least some women to file and pursue a maintenance case on husband.

5. The last line says that the magistrate can direct from time to time as to whom the maintenance amount needs to be paid. It may seem superfluous because why would maintenance amount be paid to anyone else but the one who has asked for it? But I believe it to be a useful provision because it can take care of rarer situations where for example maintenance has been asked for benefit of a disabled child who has already attained majority. In that case the child cannot take care of himself or herself, so the maintenance amount may be given to guardian who is taking care of the child. In case the maintenance has been asked by parents, the amount may be given to one parent.

Intent: Above clause is to take care of rarer situations of child marriages.

Intent: Above clause for interim maintenance was added later, to take care of snail pace of Indian judiciary. Basically it means that pending disposal of application for maintenance - which may take years going by typical pace of court cases in India - the judge may make an interim order to award an interim maintenance. The amount can be whatever the judge considers reasonable.

Implications: This means that husband facing CrPC 125 case has to first face possibility of an interim maintenance order. Given that it is an interim order and not the final disposal of case, the standard procedures in a trial like evidence and cross-examination need not and will not be followed at the same level as in a final order. So it is very important for husbands to deny vigorously the false allegations, and produce evidence and arguments which can contradict wife's claims. This is a crucial factor neglected by many with the result that they get burdened by high maintenance amount in interim order, and after that it becomes a cumbersome process to apply for revision, searching for a good/better lawyer, and so on. As I had mentioned earlier, it's very important to fight interim maintenance order with full vigour and evidences. We will cover about collecting and producing evidence in later chapter.

Intent: To ensure fast disposal of the interim maintenance order at least. Also, since complainant is assumed not to be able to maintain herself, she can demand for legal and other expenses involved in the proceedings.

Implications:

1. In theory it means that husband has 2 months of time to make his own case and arguments, from the date the summons was received, till passing of interim order. In practice, it has been seen that an interim order may not be issued for 3-6 months or even 9 months or more. However, like I said before, one should not be complacent at all about interim order hoping that it may get delayed, and one should fight it fully as if one's life depends on it. Most of the time these interim orders are getting delayed only in cases where wife left husband's home a few months after marriage, and filed the cases. Everyone in the system is aware that there is a game going on, and so they take it coolly and ask both wife and husband to go through mediation drama and the like. Unfortunately, such cases are a vast majority. My guess is that if the person who filed for maintenance was a 40 year old non-working woman with 2 children to support, the courts will not drag it for 9 months etc for mediation and such things.

2. Husband/respondent can be asked to pay legal expenses (and maybe basic travel/lodging expenses etc of wife) of the proceedings to wife/complainant.

Intent: A clear definition of "minor child" we encountered earlier, by referring to Indian Majority Act. A minor child is less than 18 years of age.

Intent: It is a legislation with (highly) beneficial intents, intending that all women who got married once get taken care of throughout life. So even an ex-husband will not get off the hook as long as his ex-wife doesn't remarry. Whoever filed for divorce is irrelevant. The divorce whether awarded based on cruelty to husband, also seems irrelevant upon reading of the bare act. However, this point about whether husband can be asked to pay maintenance to a divorced wife when divorce was granted because of wife's fault; has been raised in some old judgments and there are arguments both for and against it, but mostly against it. I don't see it as a common scenario in stories we hear and so I haven't tried to go into this matter in-depth.

Implications:

1. Men should be aware that even a divorced wife can claim maintenance unless she remarries, or starts to earn her own income.

2. What happens in cases of mutual consent divorces? In practical terms, most mutual consent divorces are based on an agreement where both husband and wife forego all claims on each other in future, so filing a CrPC 125 case by ex-wife after mutual divorce would be a contempt of court, and will be quashed by courts.

Open question solved: What is meant by the word "wives".

Answer: Now we know that "wife" under CrPC 125 can mean ex-wife also, except if it was a mutual consent divorce.

Intent: Make a clear rule that payment whether for interim maintenance or for final order starts from date of order, in general. However, if judge orders it specifically to be from date of application, then the husband will have to pay the maintenance for previous months too from the time of filing of application by wife.

Implication: This is something which can turn out to be good or bad depending on one's expectations. On the one hand, the usual expectation is that the maintenance amount will start only from date of order. With this expectation, a husband may think it is a good strategy to delay the case as much as possible. However this may backfire if the judge orders the maintenance amount as payable from date of application. The reason behind this rule may also be that in case the delay is because of the applicant wife, then the husband should not be kept on tenterhooks wondering about his total liability including previous months' arrears when the order is made. In general, it is not considered a good practice in lawmaking to make someone liable of a liability calculated on a retrospective basis.

Intent: Clause (3) denotes the reason why this law is part of Code of criminal procedure, even though it is beneficial legislation meant to prevent destitution. Basically, the judge has power to put husband in jail for 1 month or till the payment is made. So this clause is what makes it a quasi-criminal legislation.

Implication:

1. If one does not pay maintenance, one may be served a fine levy warrant to recover the amount by selling off one's moveable or other property. Issue of fine levy warrants (FLW) is not so rare. I will explain about fine levy warrant in separate section.

2. Fine levy warrant cannot be issued after 1 year delay, and also an application has to be made by complainant to court for its issuance. So 1 year is the period of limitation. It doesn't happen automatically.

3. Husband/respondent may face jail term up to 1 month upon non-payment of maintenance. Now in practice, jailing of husbands is very rare. But the provision exists nevertheless, and that is why we are going through the bare act step by step to understand where the law stands exactly. My interpretation based on plain reading seems that there should be maximum one month of jail for a breach of order, and not for every month of pending payment. This is because the wording clearly says that the process of warrant starts only upon making of an application by complainant wife, and even specifies a limitation period of 1 year from date of default. If the intent was to punish with 1 month jail for every 1 month's default, then the law could have said the same with simple wordings to the effect. However in one very rare case, the Mumbai high court had upheld 44 months of jail term for 44 months of default in payment.

https://menrightsindia.net/2010/01/1-month-jail-for-every-month-of.html

I will discuss about this aspect in more detail later. Above case also denotes the faulty logic behind what many think of adopting as a strategy that "I don't want to pay any maintenance to wife, so I will not pay and let's see what happens". Usually this is not really a strategy but avoidance of reality and escapism. Living in a country, we are bound by its laws, and sooner or later the law will catch up and whatever pain that had been postponed may get inflicted upon us with interest! It is much better to fight from the very beginning if you feel you are in the right.

Intent: This clause prevents a wife from taking advantage of her own wrong, in the sense that she cannot live separately without a good reason, and then claim maintenance alleging that husband is not taking care of her.

Implications:

1. In theory, husband should be able to avoid maintenance under CrPC 125 because in most false cases, wife will not have any real evidence to backup her allegations. In practice, it is not that straightforward. The final order in CrPC 125 may come after a long time, usually 2 years at minimum. In the interim, the judge may award some maintenance to wife which is based little more on the fact that judge sees lot of allegations in the complaint/petition, and he/she decides that something has to be given to wife because CrPC 125 is a beneficial legislation. The point here is that it was a beneficial legislation meant to help those who are deserving beneficiaries, not all applicants! This ask-for-maintenance-get-something-regime is not what CrPC 125 was meant to be, but fortunately or unfortunately we are living in an age of supposed women empowerment, and all things are getting re-interpreted with those eyes.

2. The point about husband having another wife or a mistress is quite reasonable. For this reason, be prepared if one of the false allegations is that you are having an affair, or you have a girlfriend, or something of that kind. Wife is trying to get an easy approval from the court of her own action of not staying with husband. You have to deny it forcefully and ask her to give strict evidence in support of her allegation.

Intent:

1. Clause (4) and (5) try to put conditions under which wife can be denied maintenance. In earlier clause, husband having another mistress or wife was considered a just cause for wife to live separately and still claim maintenance. In clause (4) and (5), similar restriction is put on wife that she can't claim maintenance if she is living in adultery. This is quite reasonable too.

2. Cancellation of existing maintenance order can be done only after giving sufficient proof to judge that wife is living in adultery, or she has refused to live with husband without any good reason.

Implications:

1. Now we come to one of most interesting points, which will be problematic for all those men who suspect or even have proof that wife has a boyfriend. The clauses (4) and (5) restrict maintenance to woman "living" in adultery, which is an ongoing scenario. Let's take the situation of a woman who has "lived" in adultery in the past, but who is not living in adultery at present. She can very well claim to court that it was a past event and she is entitled to maintenance from husband because she is not "living in adultery" anymore. Also most likely she will allege some cruelty done by husband which forced her, albeit temporarily, into the arms of another man!

2. Such a situation may not be that far fetched. I have actually seen such a woman making her 'prayer' in family court standing in the witness box. Almost 30 years ago she had been caught red-handed about her extra-marital affair, with evidence produced of her letters written to boyfriend, and so on. But there she was after a gap of 30 years filing and explaining her claim to maintenance from husband! Many people in the court were unable to contain their laughter listening to her story, but that's how it is. Welcome to the 5% of the time when law doesn't seem reasonable or against common sense, but that's how it is! The beneficial legislation wants to protect women no matter what 'mistakes' or 'adventures' they had in the past, and the duty invariably falls on the husband married to such woman! Sometimes the reasoning given in support of such legislation is that the woman may be living in adultery not because of her fault to start with, but as a result and consequence of husband's fault. So there you have it! I wonder what all an adulterous husband can claim in court from his wife!

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