Can maintenance order be Changed?

If you are a woman and have obtained a divorce from your husband you are entitled to maintenance. However, a wife is in no way entitled to maintenance in the event she is living in adultery or without reason refuses to live with her husband.

Section 125 to Section 128 of CrPC briefly deals with the maintenance of one person depending upon the other. Section 127 CrPC primarily mentions alteration of orders/allowance.

Alteration Of Section 125 CrPC u/s 127 CrPC:

It can be altered under section 127 CrPC and can be ordered by the Magistrate on proof of circumstances. There should be a change in circumstances of the person giving or claiming it, changes can be pecuniary or circumstantial. It is at the discretion of the magistrate, and cannot be mandatory.

Any order if passed by civil court shall be followed by the Magistrate. Even if a civil court directs the couple to stay together, the Maintenance order shall be cancelled by the Magistrate.

If the divorced wife remarries then the order is cancelled mandatorily.

In the event, order has been passed u/s125 CrPC but the woman has received allowances and benefits under customary laws.   

Judgements:   

J&K and Ladakh High Court recently ordered that the order of maintenance passed by Magistrate u/s 488 of J&K cannot be wiped out merely because settlement has taken place between spouses during pendency of execution proceedings.

Justice Dhar observed that it would be apt to make it clear that merely because the settlement did not work the order of maintenance cannot be wiped out.

In Mahua Biswas V. Swagata Biswam & Anr. (1998), the Supreme Court also stated, “When a settlement has been reached in maintenance proceedings, the earlier orders of maintenance in such a case could best be deemed to have been stayed but not entirely wiped away. Once a settlement fails, the wife’s claim for maintenance has to be activated so as to put her in the same position as before.”

The proceedings for maintenance u/s 125 CrPC are of a summary nature and the object of the same is to provide a simple and speedy remedy, ensuring that the deserted wife, children and parents are not left destitute and without any means of subsistence.        

Limitation:

The entitlement to claim execution of the order of maintenance u/s 128 by seeking discharge of the liability as per the terms of the order of maintenance granted under Section 125, to be extinguished in terms of the 1-year limitation prescribed under the first provision to Section 125(3).

In Dwarka Prasad v. Dwarka Das Saraf, the High Court observed, “with regard to the scope of a proviso as an internal side to the interpretation of statutes. In the said decision it was held that a proviso must be limited to the subject matter of the enacting clause and must be read and considered in relation to the principal matter to which it is a proviso.”

Lead India has a plethora of lawyers who can assist you in matrimonial matters and specifically whose expertise lies in maintenance cases and such experts can easily help in the execution of maintenance orders.

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