The peculiarity of maintenance provision provided under sections 125-128 CrPC is that the matter with which they deal is civil but proceedings are of criminal matter, as we all know that maintenance is a civil matter, but as this is given in CrPC so off-course proceedings to be followed are of criminal and that is why we call it Quasi Criminal proceeding means partially civil and partially criminal.
The first question that comes to mind is who can seek maintenance under section 125 CrPC? The broad categories are: –
- Wife
- Children
- Parents
Who is the wife for the purpose of section 125 CrPC?
As the section states “wife”, the question is, can an existing wife claim maintenance under this section, or only a divorced wife can seek maintenance here? well if we look into explanation (b) of section 125 CrPC which explains wife, such explanation starts with the word wife “includes” and not with the word “means”, with this we can interpret that wife means wife who is existing wife along with a wife who is divorced her husband or divorced by her husband can ask maintenance under this section.
CHILDREN
The section is very clear with respect to children, any minor unmarried legitimate or illegitimate child can claim maintenance from their parents, and even a major child (not being married daughter) legitimate or illegitimate can ask for maintenance if the child is disabled
If a daughter is a minor and is married then she can ask maintenance from her father till her majority if her husband is unable to maintain her. Here point to keep in the note is that the primary responsibility is of the husband only and if the husband is not capable to maintain her, only then she can ask for maintenance from her father.
It is also to keep in mind that minor marriage is not void marriage rather it is voidable i.e till the time marriage is not avoided it remains valid marriage between minors.
PARENTS
Apparently, it is not difficult to interpret parents, as parents mean mother and father. But still, we have a question does this mother and father means only biological mother and father or even include adoptive and stepmother and father?
Crpc does not define the term “mother and father” so we have to take the definition from section 3(20) of the General Clause Act which defines “mother and father” including adoptive mother and father. Therefore, we can say that under section 125 CrPC biological and adoptive mother and father can ask for maintenance from their children but not stepmother and father. However, a childless stepmother can ask for maintenance from her step children.
Now, what is the meaning of children means here i.e only son, only daughter, or both? In many cases, Supreme Court reiterated that children means both son and daughter, if the daughter is married then still, she can maintain her parents if she is independent, out of her own earning and not from her husband’s earnings.
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