Here is a little detailed analysis on why CrPC 125 Must Go From Statute Book as discussed in here.
Let’s follow this approach on looking at what the General Law provides for and in superseding fashion, how these two Special Laws provide for same or better or faster or hassle-free reliefs to the same set of beneficiaries.
By default, these being gender-biased social welfare laws, in the guise of Article 15(3) of Constitution of India, the Perpetrator/Accused/Payer is generally, a male person.
The below information is split into below sub-headings for easy reference.
- Comparative analysis of provisions of 125 CrPC, PWDV Act, 2005 and MWPSC Act, 2007.
- Decisions of Hon’ble High Courts: Both favorable and unfavorable.
- Conclusion
- Prayers for Writ Petition (PIL)
Comparative analysis of provisions of 125 CrPC, PWDV Act, 2005 and MWPSC Act, 2007
- Origins:
Section 125 CrPC: Came into force via Code of Criminal Procedure, 1973 on 25th January, 1974. During the prime minister-ship of Indira Gandhi (Indian National Congress)
Vs
The PWDV Act: Came into force via Protection of Women from Domestic Violence Act, 2005 on 13th September, 2005. During the prime minister-ship of Manmohan Singh (Indian National Congress)
The MWPSC Act: Came into force via Maintenance and Welfare of Parents and Senior Citizens Act, 2007 on 29th December, 2007. During the prime minister-ship of Manmohan Singh (Indian National Congress)
All details about prime minister ships is from this site here.
- Jurisdiction:
Under 125 CrPC: Per Section 126(1), Proceedings under section 125 may be taken against any person in any district-
Vs
Under PWDV Act: Per Section 27(1), The court of Judicial Magistrate of the first class or the Metropolitan Magistrate, as the case may be, within the local limits of which-
(a) the person aggrieved permanently or temporarily resides or carries on business or is employed; or
(b) the respondent resides or carries on business or is employed; or
(c) the cause of action has arisen,
shall be the competent court to grant a protection order and other orders under this Act and to try offences under this Act.
Under MWPSC Act: Per Section 6(1), The proceedings under section 5 may be taken against Jurisdiction and procedure any children or relative in any district-
a. where he resides or last resided; or
b. where children or relative resides.
- Nature of Proceedings:
Under 125 CrPC: Summary proceedings – “a civil or criminal proceeding in the nature of a trial that is conducted without formalities (as indictment, pleadings, and usually a jury) for the speedy and peremptory disposition of a matter, meant to prevent vagrancy”
Vs
Under PWDV Act: Per Section 12(4), Generally, Regular proceedings, no skipping of procedures as in Summary Proceedings. But, Per Section 28(2), Nothing in sub-section (1) shall prevent the court from laying down its own procedure for disposal of an application under section 12 or under sub-section (2) of section 23. This would mean, Summary proceedings may be adopted by the Trial Court Magistrate in the interest of Objective mentioned in the Objects and Reasons.
Under MWPSC Act: Per Section 8(1), Summary proceedings – “a civil or criminal proceeding in the nature of a trial that is conducted without formalities (as indictment, pleadings, and usually a jury) for the speedy and peremptory disposition of a matter”.
- Beneficiaries:
Under 125 CrPC: Per Section 125(1), Wife, Children and Parents are the beneficiaries, irrespective of caste, creed, religion.
Vs
Under PWDV Act: Wife and Children are the beneficiaries, irrespective of caste, creed, religion.
Under MWPSC Act: Parents (senior citizens, meaning over 60 years or otherwise) and grand parents are the beneficiaries, irrespective of caste, creed, religion.
- Rights of Beneficiaries:
Under 125 CrPC: Even divorced women are entitled for maintenance, as per Section 125(1), Explanation (b) – “wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
SC judgment to hold that Divorced folks are eligible beneficiaries of 125 CrPC here even when the husband is deserted by wife. Woww But just 1 year back from this SC order, Husband-deserting advocate-wife was denied maintenance by an innocent High Court of Madhya Pradesh going by the rule book, I meant the famous, 125 CrPC.
Also Judicially separated folks are also eligible beneficiaries per this judgement here.
Vs
Under PWDV Act: Even divorced women are entitled for maintenance, as per Section 2(f).
Under MWPSC Act: Parents can kickoff careless and negligent children from any of their property. Recent judgment from Delhi HC here.
- Initiating the proceedings:
Under 125 CrPC: File a MC case directly in Court.
Vs
Under PWDV Act: Per Section 4(1), Any person who has reason to believe that an act of domestic violence has been, or is being, or is likely to be committed, may give information about it to the concerned Protection Officer. Per Section 5, a complaint can be given to Protection Officer, police officer, Service Provider (Any NGO) or Magistrate dealing with DV Cases.
Under MWPSC Act: Per Section 5(1), An application for maintenance under section 4, may be made-
(a) by a senior citizen or a parent, as the case may be; or
(b) if he is incapable, by any other person or organization authorized by him; or
(c) the Tribunal may take cognizance suo motu.
- Legal Contention (reason for filing the case):
Under 125 CrPC: Per Section 125(1), Wife, Children and Parents are subjected to willful neglect (=This is Domestic Violence in general and economic abuse, in particular) and those who are unable to maintain themselves.
Vs
Under PWDV Act: Per Section 3, Wife and Children are subjected to Domestic Violence (includes Physical, Sexual, Verbal & Emotional and Economic Abuse).
Under MWPSC Act: Per Section 4(1), Parents (and grand parents) are the unable to maintain themselves from their own earnings or out of the property owned by them.
- Defendants/Respondents:
Under 125 CrPC: Per Section 125(1), A person who may have a wife, Children and Parents are the Defendants/Respondents.
PIL Point: Per Sec 8 of IPC, an inference can be made that a parent can seek maintenance from their daughter and a child from their mother. Landmark judgment from Hon’ble Supreme Court available here.
Vs
Under PWDV Act: Per Section 2(a) “any woman who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act“.
E.g.: A Mother-in-law can also file Domestic Violence Case on a Daughter-in-law and claim appropriate benefits.
Under MWPSC Act: Per Section 4(1), “The proceedings can be taken against any children (including son, daughter, grand-son and grand-daughter) or relative (any legal heir of childless senior citizen)“.
- Benefits/Reliefs:
Under 125 CrPC: Per Section 125(1)(d), Maintenance in cash.
Vs
Under PWDV Act: Per Sections 17, 18, 19, 20, 21 and 22, Right to reside in a shared household, Protection from further domestic violence, Residence, Maintenance, Custody of kids and Compensation Orders.
Under MWPSC Act: Per Section 2(b), Monthly maintenance in cash to cater to provisions for food, clothing, residence and medical attendance and treatment.
- Limitations on Reliefs (Maintenance amount):
Under 125 CrPC: No statutory limit imposed on the amount of maintenance granted, if granted.
Vs
Under PWDV Act: No statutory limit imposed on the amount of maintenance granted, if granted.
Under MWPSC Act: Per Section 9(2), Maximum monthly maintenance of Rs.10,000/- in cash. Can only claim maintenance under either this Act or under 125 CrPC, not under both. Read Section 12 of the Act.
- Statutory Limitation on Time for Case Disposal:
Under 125 CrPC: No statutory limit imposed on the time taken to dispose of the case, even though it is a summary proceeding.
Vs
Under PWDV Act: Per Section 12(5), Statutory limit imposed on time taken to dispose of the case, which is 60 days.
Under MWPSC Act: Per Section 5(4), Statutory limit imposed on time taken to dispose of the case, which is 90 days.
- Statutory Time for recovery:
Under 125 CrPC: Per Section 125(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 allowances 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.
Vs
Under PWDV Act: None prescribed.
Under MWPSC Act: Per Section (5)8, If, children or relative so ordered fail, without sufficient cause to comply with the order, any such Tribunal 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 month’s allowance for the maintenance and expenses of proceeding, as the case be, remaining unpaid after the execution of the warrant, to imprisonment for a team which may extend to one month or until payment if sooner made whichever is earlier: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Tribunal to levy such amount within period of three months from the date on which it become due.
- Exceptions/Alterations/Cancellations:
Under 125 CrPC:
- Per Section 125(4), No Wife shall be entitled to receive an allowance 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.
- Per Section 125(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.
Also read Section 127 of CrPC.
Vs
Under PWDV Act: Per Section 25(2), If the Magistrate, on receipt of an application from the aggrieved person or the respondent, is satisfied that there is a change in the circumstances requiring alteration, modification or revocation of any order made under this Act, he may, for reasons to be recorded in writing pass such order, as he may deem appropriate.
Under MWPSC Act: Per Section 10(1), On proof of misrepresentation or mistake of fact or a change in the circumstances of any person, receiving a monthly allowance under section 9, for the maintenance or ordered under that section to pay a monthly allowance for the maintenance, the Tribunal may make such alteration, as it thinks fit, in the allowance for the maintenance.
- Conflicts with other Laws allowing Double Jeopardy to happen:
Under 125 CrPC: Since it is a general law, superseded by PWDV Act and MWPSC Act, this set of sections 125-128 should be struck down and provisions allowing for dual reliefs in special laws should be altered appropriately.
Vs
Under PWDV Act:
Per Section 26,
(1) Any relief available under sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act.
(2) Any relief referred to in sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court.
(3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief.
Per Section 36, Act not in derogation of any other law.-The provisions of this Act shall be in addition to, and not in derogation of the provisions of any other law, for the time being in force.
Under MWPSC Act: Per Section 3, The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act, or in any instrument having effect by virtue of any enactment other than this Act.
- Imposition of Costs:
Under 125 CrPC: Per Section 126(3), The Court in dealing with applications under section 125 shall have power to make such order as to costs as may be just.
Vs
Under PWDV Act: Per Section 28(2), Nothing in sub-section (1) shall prevent the court from laying down its own procedure for disposal of an application under section 12 or under sub-section (2) of section 23.
Under MWPSC Act: None prescribed.
- Availability of Interim Reliefs
Under 125 CrPC: Even though, no where in Sections 125-128 CrPC, a provision for Interim maintenance is mandated, Various Courts held that Interim orders are maintainable.
Vs
Under PWDV Act: Per Section 23(1), In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper.
Under MWPSC Act: Per Section 5(2), The Tribunal may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this section, order such children or relative to make a monthly allowance for the interim maintenance of such senior citizen including parent is to pay the same to such senior citizen including parent as the Tribunal may from time to time direct.
- Statutory effective date of maintenance order:
Under 125 CrPC: Per Section 125(2), Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance.
Vs
Under PWDV Act: No such effective date of maintenance prescribed.
Under MWPSC Act: Per Section 7, Any such allowance for the 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 expenses of proceeding, as the case may be.
- Strict proof of Prima Facie evidence before obtaining Interim Reliefs
Under 125 CrPC: No strict proof required as it is a Summary proceeding in nature. Bombay High Court ruling here and new article here, Supreme Court held the same in these two judgments: Landmark Judgment of 2010 here and a recent judgment from 2018 here.
Vs
Under PWDV Act: Per Section 23(1), In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper.
Under MWPSC Act: None Prescribed.
- Obtaining Ex Parte Orders
Under 125 CrPC: Per Section 126(2), Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms at to payment of costs to the opposite party as the Magistrate may think just and proper.
Vs
Under PWDV Act: Per Section 23(2), If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section 18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent.
Under MWPSC Act: Per Section 6(4), Provided that if the Tribunal is satisfied that the children or relative against whom an order for payment of maintenance is proposed to be made is willfully avoiding service, or willfully neglecting to attend the Tribunal, the Tribunal may proceed to hear and determine the case ex parte.
- Efforts to be taken to get maintenance orders executed, upon failure of payment
Under 125 CrPC: Per Section 128, 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.
Vs
Under PWDV Act: Per Section 9(h),Duties and functions of Protection Officers.-(1) It shall be the duty of the Protection Officer-. to ensure that the order for monetary relief under section 20 is complied with and executed, in accordance with the procedure prescribed under the Code of Criminal Procedure, 1973 (2 of 1974);
Per Section 20(1)(d), Monetary reliefs: (1) While disposing of an application under sub-section (1) of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but not limited to,- the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force.
Per Section 20(6), Monetary reliefs: Upon the failure on the part of the respondent to make payment in terms of the order under sub-section (1), the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent.
Under MWPSC Act: Per Section 11(2), A maintenance order made under this Act shall have the same force and effect as an order passed under Chapter IX of the Code of Criminal Procedure, 1973 and shall be executed in the manner prescribed for the execution of such order by that Code.
- Provision for penal punishment on failure to pay maintenance
Under 125 CrPC: Per Section 125(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 allowances 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.
Per Section 421: Warrant for levy of fine
(1) When an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may-
Some landmark judgments by Hon’ble High Courts of Patna and Bombay
Vs
Under PWDV Act: Per Section 9(1)(h), Duties and functions of Protection Officers.-(1) It shall be the duty of the Protection Officer-. to ensure that the order for monetary relief under section 20 is complied with and executed, in accordance with the procedure prescribed under the Code of Criminal Procedure, 1973 (2 of 1974);
Under MWPSC Act: Per Section (5)8, If, children or relative so ordered fail, without sufficient cause to comply with the order, any such Tribunal 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 month’s allowance for the maintenance and expenses of proceeding, as the case be, remaining unpaid after the execution of the warrant, to imprisonment for a team which may extend to one month or until payment if sooner made whichever is earlier: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Tribunal to levy such amount within period of three months from the date on which it become due.
- Objects and Reasons
Under 125 CrPC: None.
Vs
Under PWDV Act: Presently, where a woman is subjected to cruelty by her husband or his relatives, it is an offence under Section 498A of the Indian Penal Code. The civil law does not, however, address this phenomenon in its entirety. It is, therefore, proposed to enact a law keeping in view the rights guaranteed under articles 14, 15 and 21 of the Constitution to provide for a remedy under the civil law which is intended to protect woman from being victims of domestic violence and to prevent the occurrence of domestic violence in the society. The Act seeks to achieve the said object.
Under MWPSC Act: Though the parents can claim maintenance under the Code of Criminal Procedure, 1973, the procedure is time-consuming as well as expensive. Hence, there is a need to have simple, inexpensive and speedy provisions to claim maintenance for parents.
Decisions of Hon’ble High Courts: Both favorable and unfavorable
Hon’ble High Courts of various States have held favorably that…
Madras High Court:
In a recent judgment, Hon’ble Shri M.S.Ramesh of Madras High Court has reiterated that “The petitioner herein having chosen to invoke the provisions of the Domestic Violence Act seeking for monetary relief under Section 20(3), cannot subsequently invoke Section 125 Cr.P.C., for maintenance on the same set of facts and cause of action in view of my reasonings given above.” The sequence of cases are first DV case and then 125 CrPC on exact same allegations on past and Hon’ble Judge showed the door to the false complainant. The judgment is available here.
Another wonderful judgment here from same Hon’ble Madras High Court from Justice Shri S.Nagamuthu was the landmark judgment referred in above 2018 judgment. In this case, the sequence of cases are first 125 CrPC and then DV case on exact same allegations on past and Hon’ble Judge showed the door to the false complainant.
Bombay High Court:
Based on above landmark judgment, Hon’ble Bombay High Court also issued a very good order here recently in 2018.
Delhi High Court:
Justice Shri Shiv Narayan Dhingra, has delivered this judgments in 2010,
- https://www.shadesofknife.in/renu-mittal-vs-anil-mittal-and-others-on-27-september-2010/
- https://www.shadesofknife.in/rachna-kathuria-vs-ramesh-kathuria-on-30-august-2010/
Some vexed up Brave hearts have fought back against unfavorable Judgments
- https://www.livelaw.in/husband-follow-maintenance-orders-crpc-domestic-violence-act-sc-issues-notice-read-order/
- https://www.livelaw.in/order-maintenance-awarded-domestic-violence-act-cannot-substituted-maintenance-s-125-crpc-read-judgment/
- If Wife sits idle, after resigning from work without reason, just before filing false maintenance complaint, it is fine. But husband if seeks maintenance (of course under S 24 of HMAct) from working wife (only after he is able to prove any incapability or handicap), the Court observed that in absence of such circumstances as enumerated above, endowing maintenance on the husband would only promote idleness.
- https://indiankanoon.org/doc/177540678/
- Woman tried to ascribe domestic relationship to already married man: https://www.shadesofknife.in/gautam-jairam-gawai-vs-ragini-gautam-gawai-anr-on-20-january-2017/
- Both proceedings of maintenance under 125 CrPC and PWDV Act are maintainable:
- https://www.shadesofknife.in/tanushree-ors-vs-a-s-moorthy-on-7-february-2018/
The below are the victims who were saddled with maintenance in more than one laws.
Conclusion
These judgments seem to be hinting at, for first-ever offence of husband of Domestic Violence (without a doubt, neglect and non-maintenance under 125 CrPC, is a violence under PWDV Act too), the ladies (married and later statuses) of India can choose 125 CrPC as their go-to law to extort monies from the husband, they don’t want to live with and for every new and subsequent act of domestic violence, it is the application under PWDV Act that they should file, for speedy disposal/dole outs, allegedly under 60 days per section 12(5) of PWDV Act.
Truly, Ingenious way of making and implementing beneficial laws in my motherland, India.
Prayers for the Writ petition (PIL)
In addition to 125 CrPC (along with 126, 127 & 128 CrPC), the sections 20(1)(d) and 36 of PWDV Act are to be stuck down, as they are the ones supporting/enabling/causing Double Jeopardy to happen via PWDV Act, in colluded collaboration with 125 CrPC.
It is not rocket science to understand why the legislators on that time in 2005 did what they did. The PWDV Act, when brought in, was catering to only 2 of the beneficiaries of 125 CrPC, namely Wife and Children. Obviously, no one can foresee that in 2007, MWPSC Act will be brought in. As such, Parents are still to depend on 125 CrPC for their maintenance as on 2005.
But when the MWPSC Act was brought in 2007, the above shortcoming was fulfilled and all beneficiaries of 125 CrPC (Various stautses of Wife, Parents and Children) were gainfully and sufficiently covered under the both laws PWDV Act + MWPSC Act, put together.
Thereby, making 125 CrPC a vestige that has to be hacked off from the CrPC Statute book. Once 125 CrPC and its related sections are stuck down as infructuous, there would be no confusion among the masses as well as the judicial officers on order from which law should be followed or both to be followed etcetera.
Thoroughly detailed post is available here, which includes corrections and additions to above points, that will feed into the Public Interest Litigation (Writ Petition at High Court of Andhra Pradesh), that I am going to file, at appropriate time in 2019.