This is the bare act of Indian Contract Act, 1872
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Author: ShadesOfKnife
Gazettes of India and Indian States
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CrPC 125 Must Go From Statute Book
I firmly believe that CrPC 125 should be struck down or repealed from Statute Book. I present my points, briefly, to conclude CrPC 125 is a vestige from the past and it should go out.
Introduction
There are a set of 4 sections in Criminal Procedure Code of India (hereinafter, CrPC) that mandate that ‘wives, children and parents should be maintained’. I list the said sections from CrPC below.
- CrPC 125 – Order for Maintenance of Wives, Children and Parents
- CrPC 126 – Procedure for CrPC 125 Case
- CrPC 127 – Alteration in Allowance
- CrPC 128 – Enforcement of Order of Maintenance
The key emphasis I want to bring to the fore from these 4 sections, being that the ‘beneficiary’ of these sections are to be ‘unable to maintain themselves‘. Now the common sense (which is uncommon to find these days with people) questions ‘why would a lawfully wedded wife or legally caring and loving parents or the twinkle-in-my-eyes children who are residing in a shelter and have something to eat and wear, suddenly become “unable to maintain themselves”??? WHY??? Because the man “having sufficient means neglects or refuses to maintain”. Cool.
Point Of Contention
What does that mean from the eyes of law, he has caused domestic violence to the said beneficiaries, as defined in the DV Act (where the lovely ladies and their kiddos are the beneficiaries).
It means he has neglected to care for his elderly parents, as defined in Senior Citizens Act where the beneficiaries are parents of age less than 60 and senior citizens)
It is hopelessly assumed by the law, that women cannot cause this very same act of negligence towards her husband, her parents and her kids. Not sure where is the basis for this twisted mindset coming from, when they can strike down
- SC Strikes Down 157 Year Old Law Criminalizing Consensual Homo-Sexual Acts Between Adults; Holds Section 377 IPC Unconstitutional To That Extent (Read report here).
- Husband Is Not The Master Of Wife, SC Strikes Down 158 Year Old Adultery Law Under Section 497 IPC (Read Report here)
- Entry of Women of menstruating age into Lord Ayyappa temple at Sabarimala (What Applies To Man Applies To Woman As Well, Says CJI Dipak Misra here)
- Right To Choose Life Partner Is A Fundamental Right, Consent Of Family, Community, Clan Not Necessary For Marriage Between Two Adults (Read report here)
Conclusion
Now, hitting the ball out of park, I state,
- We have Protection of Women from Domestic Violence Act here and rules thereof here, to cater to the needs of neglected women and kids.
- We have Maintenance and Welfare of Parents and Senior Citizens Act here and a report from standing committee here which was basis for this Act to cater to the needs of elderly parents.
When we have two Special Laws to cater to the well being and care of wifes, kids and parents how can a provision of central act which by the way is a General law sustain? It is settled principle of law, that Special Laws always supersede General Law.
I have not even gone into applicability of Article 15(3) of Constitution of India, in case on 125 CrPC and the blabber of beneficial act yada, yada, yada. Not touched the equal treated and subjection to laws to be given across genders with equity.
How can two civil remedies be provided for same single offence? Is this not double-jeopardy?
Is it not correct to repeal CrPC Section 125, 126, 127 and 128 on this basis?
A more detailed comparative analysis made available here. Do share your views.
Report of the Committee on The Maintenance and Welfare of Parents and Senior Citizens Bill, 2007
This is the report of standing committee preceding the enactment of The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 on December 31, 2007.
See the Gazette Notification of the Act here.
Maintenance and Welfare of Parents and Senior Citizens Act 2007 – Gazette Notification
Read through the Maintenance and Welfare of Parents and Senior Citizens Act 2007 along with Gazette Notification.
CrPC 128 – Enforcement of Order of Maintenance
A copy of the order of maintenance shall be given without payment to the person in whose favour it is made, or to his guardian, if any or to the person to whom the allowance is to be paid; and such order may be enforced by any Magistrate in any place where the person against whom it is made may be, on such Magistrate being satisfied as to the identity of the parties and the non-payment of the allowance due.
First section in this series is here.
CrPC 127 – Alteration in Allowance
(1) On proof of a change in the circumstances of any person, receiving, under section 125 a monthly allowance, or ordered under the same section to pay a monthly allowance to his wife, child, father or mother, as case may be, the Magistrate may make such alteration in the allowance he thinks fit: Provided that if he increases the allowance, the monthly rate of five hundred rupees in the whole shall not be exceeded.
(2) Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made under section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly.
(3) Where any order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that-
(a) the woman has, after the date of such divorce, remarried, cancel such order as from the date of her remarriage;
(b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order,-
(i) in the case where, such sum was paid before such order, from the date on Which such order was made,
(ii) in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband by the woman;
(c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance after her divorce, cancel the order from the date thereof.
(4) At the time of making any decree for the recovery of any maintenance or dowry by any person, to whom a monthly allowance has been ordered to be paid under section 125, the Civil Court shall take into account the sum which has been paid to, or recovered by, such person as monthly allowance in pursuance of the said order.
Next section here.
CrPC 125 – Order for Maintenance of Wives, Children and Parents
- If any person having sufficient means neglects or refuses to maintain;
- his wife, unable to maintain herself, or
- his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
- 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
- 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 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.
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 remarried.
- 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.
- 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 port of each month’s allowance 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.
- 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 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.
- 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
An amendment to this 1973 Act is here. A terrible one.
Next section here.
3 years LLB (General) – Third Semester Subjects and Previous Years Question Papers
These are the 5 subjects in third semester of 3 years LLB (General) of Sri Krishna Devaraya University, Anantapur, Andhra Pradesh, India.
1. Property Law
2. Administrative Law
3. Company Law
4. Public International Law
5. Labour and Industrial Law
Here are the PDFs for the previous years question papers for third semester.
2012
2014
2015
2016
2017
Click here for Home Page which contains answers
K.Niranjani Vs R.T.Dinesh on 25 June, 2012
The Metropolitan Magistrate had dismissed the DVC due to absence of the complainant on 1 date and acquitted the husband under 256 CrPC with this reasoning.
From Para 7,
Admittedly, on 19.10.2010, due to non-appearance of the complainant/appellant herein, complaint was dismissed and the accused were acquitted, against the same only, the present appeal has been preferred. While perusing the order, the learned XV Metropolitan Magistrate has specifically mentioned as follows:
“Complainant absent. No representation. Respondent 1 present. Respondents 2 & 3 are absent. Petition u/s 317 Cr.P.C. filed allowed. Direction issued by the Fast Track Court to dispose within the stipulated time. Even after specific direction to appear & proceed with the case complainant is absent. No representation. Hence complaint is dismissed. Accused are acquitted.
The Hon’ble High Court of Madras has set aside the acquittal order with this reasoning picked from Hon’ble Supreme Court judgment from 2004. There is a later judgment from Hon’ble Supreme Court in 2008 on same subject here.
From Para 8,
At this juncture, it is appropriate to consider the decision relied upon by the learned counsel for the appellant reported in 2004 (1) CTC 689 (R.Sekar v. S.Rajendran) in para-4, it reads as follows:
“4.The Supreme Court in the case in Associated Cement Co. Ltd. Vs. Keshjvanand 1998 Crl.L.R. 856 has held as follows:
“Two constraints are imposed on the Court for exercising the power under section 256. First is, if the Court thinks that in a situation it is proper to adjourn the hearing, then the Magistrate shall not acquit the accused. Second is, when the Magistrate considers that personal attendance of the complainant is not necessary on that day, the Magistrate has the power to dispense with his attendance and proceed with the case. When the Court notices that the complainant is absent on a particular day, the Court must consider whether personal attendance of the complainant is essential on that day for the progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reason. If the situation does not justify the case being adjourned the Court is free to dismiss the complaint and acquit the accused. But if the presence of the complainant on that date was quite unnecessary, then resorting to the step of axing down the complaint may not be proper exercise of power envisaged in the Section. The discretion must, therefore, be exercised judicially and fairly without impairing the cause of administration of criminal justice.“
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