Employed Wife Can Seek Maintenance Under Section 125 of CrPC

Maintenance is one of the most formidable tools in the arsenal of an abandoned wife to be able to support herself, and is thus crucial for the overarching goal of social justice. Courts have established caveats necessary to prevent its abuse.

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Section 125 of the Criminal Procedure Code lays down the law regarding the granting of maintenance of wives, children and parents.

Under this section, any person having sufficient means is liable to support his wife, given that she is unable to maintain herself. This support is provided by way of a fixed amount determined by a judicial magistrate, known as ‘maintenance’. A variety of criteria are used to determine the validity of the claim for maintenance as well as the determination of the final amount provided.

Certain guidelines had been set down by the Supreme Court in its judgment in the case of Rajnesh versus Neha (2020). Said criteria include the parties’ status, the applicant’s (in this case the wife’s) needs, and the respondent’s income and property, the claimant’s liabilities and financial responsibilities, the parties’ age and employment status, the parties’ residential arrangements, the parties’ minor children’s maintenance, and illness or disability.

Logical paradox

Maintenance, by its very definition, is provided to those who are unable to maintain themselves. Thus, on the face of it, it may seem as though providing maintenance to employed women is a logical paradox. However, this is not true.

Employment does not necessarily imply that the woman is able to meet even the basic needs of herself and perhaps even a child. A hand-to-mouth existence for the wife and child, while the husband lives lavishly, is not what is envisaged by the makers of the law.

Employment does not necessarily imply that the woman is able to meet even the basic needs of herself and perhaps even a child. A hand-to-mouth existence for the wife and child, while the husband lives lavishly, is not what is envisaged by the makers of the law. Moreover, the obligation for men to provide maintenance stands on a higher pedestal than the wife, as per the Supreme Court in Rajnesh.

Therefore, the guidelines as above were laid out. Within these guidelines, the needs of the wife in comparison to her income, the income of the husband, as well as the standard of living and status of both parties are considered to ensure the above scenarios would not pan out. Of course, it cannot be possible for the wife to claim maintenance for herself when she is earning more than the husband. However, even in this case, it is the responsibility of both parents to maintain their minor child and both have to pay towards this end, albeit in proportion of their incomes.

Even if the wife is earning enough to subsist upon, and live in a moderately comfortable lifestyle, it is important for her to be able to live in the style and manner she is accustomed to, provided that the husband is able to support her.  

The precedents

The purpose of section 125 is to achieve social justice for the marginalised members of society – destitute wives, hapless children and parents. Thus, a  broader interpretation of the statute has to be taken in order to stay true to the sentiments and intent of the creators. Courts have been expanding the scope of this provision to encompass all those in need of social justice. Some of relevant judgments by the Supreme Court as well as certain high courts are reproduced below.

The difference between ‘capable of earning’ and ‘actually earning’ has been highlighted quite clearly in Shalija & Ors. versus Khobbanna (2017) wherein the Supreme Court decided that women who were qualified to earn would not be barred from claiming maintenance. Moreover, in the absence of sufficiently compelling evidence, it cannot be assumed that a woman qualified to earn is in fact earning, as per the Supreme Court in Swapan Kumar Banarjee versus The State of West Bengal & Ors. (2017). This, however, only applies in cases where the wife is not capable of maintaining herself; the husband, as noted by the Delhi High Court, can’t be “forced to beg, borrow or steal” to pay maintenance to a wife equally qualified to earn.

In Rajnesh, the Supreme Court laid down a landmark decision regarding this issue. As mentioned above, this judgment clearly laid down guidelines for the determination of maintenance. More importantly, it decisively established that “if the wife is earning, it cannot operate as a bar from being awarded maintenance by the husband”. The duty of the court is to look at the income she is earning in and of itself, and from that, determine whether or nor not she is capable of sustaining herself in the manner and lifestyle to which she is accustomed to in the husband’s house. Sustenance (as per the provisions of section 125) doesn’t mean and cannot be allowed to mean survival, as per the Himachal Pradesh High Court.

The duty of the court is to look at the income she is earning in and of itself, and from that, determine whether or nor not she is capable of sustaining herself in the manner and lifestyle to which she is accustomed to in the husband’s house.

This ratio has been echoed in other judgments by both the Supreme Court as well as various high courts. In Sunita Kachwaha & Ors. versus Anil Kachwaha (2014), the Supreme Court held that the mere fact that the wife was earning some income could not be enough to disentitle her from her right to maintenance. This was relied upon by the Bombay High Court in Sanjay Damodar Kale versus Kalyani Sanjay Kale (2020) to hold that neither the potential to earn not the meagre earnings of the wife would have any bearing upon her right to maintenance.

Section 125, which lays down the provisions of maintenance, does not speak on the topic of working wives in and of itself. The current legal position on this issue has been developed through various judgments, which have been cited above.

Employment does not disqualify the claimant

Universally, the opinions of the courts seem to be that the phrase ‘unable to maintain herself’ in section 125 is not antithetical to the employment of the wife. It has been established and developed upon that even if a woman has the capability to earn or is earning some amount, it doesn’t debar her from being able to claim maintenance. The real test lies in her ability or inability to maintain herself in the style to which she is accustomed in her matrimonial house. On the other hand, however, this ability is not unlimited; the husband cannot be made to ‘beg, borrow or steal’ to pay maintenance to a well-educated and earning wife.

Maintenance is one of the most formidable tools in the arsenal of an abandoned wife to be able to support herself, and is thus crucial for the overarching goal of social justice. The scope of this term has been broadened to ensure that such women are not cheated out of their rightful due. This shield against injustice should not be misused and transformed into an unjust weapon itself, and thus, courts have established caveats necessary to prevent the abuse of this section.

Aadhya Parsuramka is a second-year law undergraduate law student at the W.B. National Institute of Juridical Sciences, Kolkata.