At what stage can an application under-section 125(4) CrPC be decided? Can an application under-section 125(4) CrPC be decided prior to the final adjudication of the application filed by the wife for maintenance under-section 125(1) CrPC?
Question before the court
The court explained the question before it by way of an illustration:
“A and B are husband and wife. Due to strained relations between them, they began living separately, and B filed for maintenance. One of the primary reasons, as alleged by A for their separation, is the promiscuity of B and her adulterous relationship with other people. In such a scenario, is A obligated to pay B interim or final maintenance?”
The law on maintenance under the Code of Criminal Procedure, 1973 and under the Bhartiya Nagarik Suraksha Sanhita, 2023
The provision of maintenance is to prevent the neglect and destitution of the people who are unable to provide for themselves, for example elderly parents, minor children, and spouse. The provision imposes an obligation upon those who have sufficient means to provide for those who are unable to sustain or maintain themselves. The purpose of the provision is to ensure that those who are unable to provide for themselves are given the means to secure a dignified life. It is a means of implementing accountability for those persons who ignore their responsibilities towards family members and dependents.
Section 125 in The Code of Criminal Procedure, 1973
125. Order for maintenance of wives, children and parents.
(1)
If any person having sufficient means neglects or refuses to maintain -
(a)
his wife, unable to maintain herself, or
(b)
his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(c)
his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d)
his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate [* * *] [The words "not exceeding five hundred rupees in the whole" omitted by Act 50 of 2001, w.e.f. 24.9.2001.], as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct :
Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.
[Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct.
Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.] [Inserted by Act 50 of 2001, Section 2 (w.e.f. 24-9-2001).]
Explanation. - For the purposes of this Chapter, -
(a)
"minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is deemed not to have attained his majority,
(b)
"wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not re-married.
(2)
[ Any such allowance for the maintenance or interim maintenance and expenses for proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.] [Substituted by Act 50 of 2001, Section 2 (w.e.f. 24-9-2001).]
(3)
If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] [Substituted by Act 50 of 2001, Section 2 for "allowance" (w.e.f. 24-9-2001).] remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made :
Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:
Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.
Explanation. - 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.
(4)
No wife shall be entitled to receive an [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] [Substituted by Act 50 of 2001, Section 2 for "allowance" (w.e.f. 24-9-2001).] from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.
(5)
On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.
Section 144 in Bharatiya Nagarik Suraksha Sanhita, 2023
144. Order for maintenance of wives, children and parents.
(1)
If any person having sufficient means neglects or refuses to maintain-
(a) his wife, unable to maintain herself; or
(b) his legitimate or illegitimate child, whether married or not, unable to maintain itself; or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself; or
(d) his father or mother, unable to maintain himself or herself,
a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate as such Magistrate thinks fit and to pay the same to such person as the Magistrate may from time to time direct:
Provided that the Magistrate may order the father of a female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such female child, if married, is not possessed of sufficient means:
Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct:
Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.
Explanation. - For the purposes of this Chapter, "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
(2)
Any such allowance for the maintenance or interim maintenance and expenses of proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.
(3)
If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:
Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:
Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.
Explanation. - 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.
(4)
No wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding, from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.
(5)
On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.
Important features of proceedings under-section 125 CrPC:
- Proceedings under this section are summary in nature, designed to be speedy, aimed to avoid difficulty on the part of the seeking party. It seeks to prevent vagrancy and destitution. [Dukhtar Jahan v. Mohd. Farooq; Vimala (K.) v. Veeraswamy (K.); Nagendrappa Natikar v. Neelamma; Danial Latifi v. Union of India; Rajnesh v Neha]
- Maintenance proceedings are essentially civil in nature. Thus, the standard of proof applicable is not beyond reasonable doubt as would be in other criminal matters. [Dwarika Prasad Satpathy v. Bidyut Prava Dixit; Chanmuniya v. Virendra Kumar Singh Kushwaha; Kamala v. M.R. Mohan Kumar1; Rina Kumari v. Dinesh Kumar Mahto; Iqbal Bano v. State of U.P.]
- Only such person who is unable to maintain herself may seek maintenance hereunder. [Bhagwan Dutt v. Kamla Devi, Chaturbhuj v. Sita Bai]
- The wife seeking maintenance must show that she is unable to maintain herself and concomitantly show that the husband has the means to do so. [Mohd. Ahmed Khan v. Shah Bano Begum; Mohd. Abdul Samad v. State of Telangana]
- The provision does not recognise any religion and applies to all parties irrespective of the religion they profess. [Mohd. Abdul Samad(supra)]
- The order made under this Section is subject to final determination by the Civil Court. [Inderjit Kaur v. Union of India; Mohd. Abdul Samad (supra)]
- A decree of restitution of conjugal rights does not bar the payment of maintenance under this Section and would not count as disqualification under clause 4 thereof. If the wife refuses to comply, it has to be seen on the facts whether such refusal is justified. [Rina Kumari (supra)]
- A decree of divorce does not foreclose the relief under Section 125 CrPC. Section 125(4), which is an exception to the general rule under this section, does not include within its ambit a divorced woman. [Vanamala v. H.M. Ranganatha Bhatta, Swapan Kumar Banerjee v. State of W.B.]
Section 125(4) CrPC
Sub-Section (4) indicates the legislature’s intention to address the possibility of adultery on part of the wife. The provision states that maintenance shall be denied if the wife lives in adultery or without any sufficient reason refuses to live with her husband or is living separately by mutual consent.
In other words Sub-Section (4) provides that if an adulterous relationship is established, the wife seeking maintenance would not be entitled to any maintenance as an interim maintenance and not even as final maintenance. Sub-Section (5) provides further clarification on the issue.
It is important to note that in Indian matrimonial jurisprudence, "living in adultery" requires a continuous or habitual course of adulterous conduct, rather than an isolated lapse.
Breakdown of Maintenance Proceedings into stages by the Apex Court
- Stage One: An application for maintenance is stage one of the proceedings. The Court may under the second proviso of Section 125(1) CrPC award interim maintenance in permitting circumstances.
- Stage Two: The application under-section 125(4) CrPC is the second stage of the proceedings. The determination of whether the application under-section 125(1) would reach the final stage would be done on the basis of the result of the application under-section 125(4).
- Stage Three: The final order of the application under-section 125(1) CrPC
- Section 125(5) CrPC accounts for a situation that arises after the final order is made in stage three.
The Hon’ble Apex court further explains the above stages by way of illustrations in para 13 of the judgement.
“ ..... A is the wife and B is the husband.
13.1 In the first scenario, A files for maintenance. Husband enters appearance and the concerned court awards interim maintenance. On a subsequent date, B files an application under Section 125(4). Here, there are two possibilities. If the evidence presented along with the application establishes one of the three situations contemplated in Section 125(4) on the “face of it” or if the situation is that the existence of either of the three scenarios is “admitted”, then the interim maintenance would be stopped and the application for maintenance would be dismissed. If the evidence is required to be proved in accordance with law, the court would undertake a review of the evidence and only after being convinced of its merit, make an order thereupon. In this intervening period between the date of filing the application and the order under Section 125(4), interim maintenance would continue.
13.2 In the second scenario, B while entering appearance in A’s application for maintenance, on the same day, files an application under Section 125(4), then, if the evidence is “admitted”/demonstrates the factual situation on first blush regarding the three scenarios, where maintenance would not be payable by B, then on the very day it is established before the Court, interim maintenance would become a non starter. If again, the evidence is required to be proved in accordance with law, for the time that the court is considering such evidence to arrive at a conclusion, the payment of interim maintenance would continue.”
Therefore if an application for maintenance is to be denied at the interim stage, the husband filing the application under-section 125(4) must present clear and cogent evidence that would ex-facie establish adultery on part of the claimant wife.
The Court’s Stance on Private Investigators and Privacy
A crucial and landmark aspect of this judgment arose from the husband's reliance on 92 videos and 237 photographs obtained secretly through private detectives. The Supreme Court expressed grave concern over such covert surveillance in matrimonial disputes, noting that it severely violates the fundamental right to privacy. Recognizing the lack of regulations governing private investigators in India, the Court directed that a copy of this judgment be sent to the Ministry of Law & Justice and the Law Commission of India to formulate a comprehensive regulatory framework for private detectives.
Conclusion
The Hon’ble Apex Court held that when adultery is proved, it takes away the right of the maintenance from the wife, and therefore such an application to prove adultery has to be decided between the order granting interim maintenance and final adjudication of application for maintenance.
The court further held that if a husband files an application under-section 125(4) and is, at the first instance, able to establish the charge through evidence ex facie, then only, there can be said to be a bar to interim maintenance.
Finally the court concluded that it was incorrect for courts below to have observed that the appellant’s application could not have been decided prior to the final adjudication of the application filed by the wife. The second proviso to sub-section (1) of Section 125 provides for interim maintenance; and as such, the logical flow of proceedings would be that once the basic facts are established, an order is made for interim maintenance, and that would continue to operate till the application under Section 125 (4) is decided conclusively.
Key-Take aways
Ex-facie / Admitted proof: If adultery is admitted or proved on the face of the record at Stage Two, interim maintenance is denied or immediately stopped.
Disputed evidence requiring trial: If allegations require proof/cross-examination, interim maintenance continues to operate during the intervening period while the court expeditiously decides the Section 125(4) application on its merits before final adjudication.
References