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Section
125 of Criminal Procedure Code provides that 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 not exceeding
five hundred rupees in the whole, as such Magistrate thinks
fit, and to pay the same to such person as the Magistrate
may from time to time direct.
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. 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 of due in the manner
provided for levying fines, and may sentence such person,
for the whole or any part of each month's allowance 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.
Here
it should be noted that the term "wife" includes a woman
who has been divorced by, or has obtained a divorce from,
her husband and has not remarried. 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.
In
a leading case, the claimant was a Hindu woman; she was
not legally wedded wife of Christian married man. They were
living together for years. The man was evidencing her to
be living that she was his wife. The child was also born
out of their union. The Court did not allow her claim of
maintenance, as she was not legally wedded wife. However,
the Court directed the husband to pay Rs.30000/- as damages
for the misdeed committed by him.
Hence
under this section, a wife is entitled to maintenance and
this right is an incidence of her status. The expression
"wife" has not been defined in this code. The plain dictionary
meaning of the term "wife" is, "a married woman" or "a woman
who is tied to a man in wedlock". No woman can give herself
the status of a wife of a person, unless she is legally
and validly married to that person. In an application under
this section, the Magistrate exercising the power will have
to determine, whether the marriage of the woman applicant
with the respondent was legal and valid in accordance with
the personal law of the parties to give her the status of
a wife. In the absence of a legal and valid marriage as
recognized by the personal law of the parties, a woman will
not have the status of a wife, howsoever, otherwise might
have lived with a person and might have given birth to the
children from such a person she will not be entitled to
have the status of wife of that person, if she is not legally
and validly married to him.
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