PUCL Bulletin, April 2001
Amendment
to remove the ceiling on maintenance paid to destitutes may be withdrawn by
Govt.
By Sudha Ramalingam
In order to avoid anyone from being exposed to such vagaries of destitution
the right to maintenance, has been incorporated in Chapter IX of the Criminal
Procedure Code (hereinafter referred to as Cr.P.C.). It is a Chapter for Order
for Maintenance of Wives, Children and Parents. Under Section 125 of the Cr.P.C.,
if any person having sufficient means neglects 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.
Thus as per the above provision
a sum of Rs.500/- per month could be claimed as maintenance. Section 126 provides
the procedure to be followed and the jurisdiction of the Courts, i.e. the Court
wherein a case could be filed. The cases in short could be filed in the Magistrate
Court within which the petitioner resides or where the parties lastly resided
together etc. Summons case procedure has to be adopted to dispose of the cases.
This paves way for expeditious remedies. Section 127 is for alteration in the
allowance if there is a change of circumstances. But if there is any increase
in the monthly allowance, the monthly rate of five hundred rupees in the whole
shall not be exceeded. Section 128 is for enforcement of order of maintenance.
A copy of maintenance order shall be given without payment to the person in
whose favour it is made, or to his guardian, 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.
As on date a ceiling of Rs.500/- per month to be paid as maintenance is too
small a sum. It is just not enough to meet both ends. It will not prevent vagrancy,
which is the object of the provision. Various women's organizations and other
activists raised their voice against this ceiling of Rs.500/- per month. In
West Bengal the amount was raised to Rs.1500/-. In Tamil Nadu, after a long
debate with various sections of the society and women's organizations and the
Tamil Nadu Women's Commission it was decided to amend the Cr. P C and remove
the ceiling. For mere enhancement as was done by West Bengal also becomes anachronistic
with the high rate of inflation and spiraling cost of living. So it was decided
that the Magistrates should be vested with the power to grant maintenance taking
into account the capacity of the person to pay and the need of the person seeking
maintenance. Hence discretion was to be vested with the Magistrate to fix the
quantum of maintenance without any ceiling on the sum to be awarded. Towards
the said aim, the Tamil Nadu Legislative Assembly unanimously passed a Bill
(L. A. Bill 1 of 1996) on the 27th February 1996 amending the Cr P C in its
application to the State of Tamil Nadu. As the Cr. P C falls within the concurrent
list. Even though it is a Central Act, it can be amended by the State in so
far as its application within the State bringing forth the amendment. But such
amendment as it is a Central Act has to be sent over to the President of India
and his assent has to be obtained for it to take effect. The Tamil Nadu Assembly
in its statement of objects and reasons to the amendment has said that "The
Government have considered that the upper limit of Rs.500 is not sufficient
to enable the women to live in freedom and dignity and that instead of fixing
an upper limit, the monthly allowance may be fixed by the court at such monthly
rate as the Magistrate may think fit, having regard to the economic status of
such persons." Thus it has unanimously passed the amendment removing the
ceiling of Rs.500/- as early as February 1996.
Further, to ensure prompt payment of monthly allowance for maintenance the Government
have considered that if the persons against whom an order of maintenance is
made is a salaried person, the Magistrate ordering maintenance may be empowered
to direct the salary disbursing authority to deduct the amount for maintenance
from the salary and send the same to the Court for payment to the person in
whose favour the order for maintenance is made. Hence a sub-section to the effect
was also added by the amendment.
The above amendment was unanimously passed during the regime of former Chief
Minister Ms. J.Jayalalitha. Before the said amendment was given assent to by
the President of India, her Government lost power. The new Government, which
is not the author of the amendment, had been very lethargic in getting the assent.
After repeated demands by All India Democratic Women's Association, it has been
informed that the State Government has decided to withdraw the letter.
Regarding assent of the President of India for the amendment, it may be mentioned
that the Central Government is scrutinising the idea of raising the ceiling
of Rs.500/- by bringing forth appropriate amendment. In view of this the Tamil
Nadu Government says it is taking steps to withdraw the amendment sent to the
President for assent. The decision to withdraw the unanimously passed amendment
is a fraud committed on the people of Tamil Nadu and the State Assembly itself.
To withdraw an amendment brought about after great deliberations on the surmise
that there is a proposal under scrutiny to enhance the ceiling and to remove
the same is illogical and unrealistic. With the experience of the repeated failures
of the Constitutional amendment for the reservation of women, the stringent
provisions of the Indian Divorce Act, applicable to Christians it is but atrocious
to believe in the Central Government and withdraw what has been done already.