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Amendment to remove the ceiling on maintenance paid to destitutes may be withdrawn by Govt.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.

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