MOOT PRACTICAL TRAINING 5th YEAR

Before

JUDICIAL MAGISTRATE 1ST CLASS

Case no.12345/2023

(Under Section 125 of Criminal Procedure Code,1973)

Pam ….Petitioner

Versus

Jim …Respondent

Prikshit Thakur

272/19

17748

Section E

Counsel appearing on behalf of the Petitioner

 TABLE OF CONTENTS

LIST OF ABBREVIATIONS…………………………………………………..3

INDEX OF AUTHORITIES…………………………………………………...4

STATEMENT OF JURISDICTION……………………………………………5

STATEMENT OF FACTS……………………………………………………...7

ISSUES PRESENTED…………………………………………………………8

SUMMARY OF ARGUMENTS……………………………………………….9

ARGUMENTS ADVANCED………………………………………………….10

PRAYER……………………………………………………………………….17
 LIST OF ABBREVIATIONS

A.I.R. All India Report

SC Supreme Court
U.O.I. Union of India
Vol. Volume
V. Versus
U/S Under Section
Hon’ble Honorable
Anr. Another
Ors. Others
Govt. Government
HC High Court
Cr. App. Criminal Appeal
CrPC The Code of Criminal Procedure
 INDEX OF AUTHORITIES

Legislation

1. Criminal Procedure Code,1973.

Cases Referred

1. S.S. Bhatiya vs State of Gujarat (2005) 3 SCC 636 (Cri) 787.

2. Rajnesh vs Neha and anr (2021) 2 SCC 324
3. Balbir Singh vs Hardeep Singh 1976 CriLJ 1136(P&H)
4. Anshu Gupta vs. Adwait Anand 2023 SCC 916 (utt)
5. Rajnesh vs. Neha 2021 2 SCC 324
6. Ganesh vs. Sudhirkumar Srivastava and ors Civil Appeal no.4031 of 2019
7. Fateh Saharan vs Rohit Saharan CM APPL. 26971/2021
8. Shyam Bahadur Singh v. State of U.P. and Another 2023 AHC 114038
9. T. Vimala v. S. Ramakrishnan, Crl. R.C (MD) no. 180 of 2014 R.C

Books Referred

1. R.V. Kelkar’s Criminal Procedure, (seventh edition) 2021

Legal Databases

1. https://www.scconline.com/
2. https://www.verdictum.in/court-updates/high-courts/change-in-circumstances-one-
can-apply-for-maintenance-125-crpc-1481896?infinitescroll=1
 STATEMENT OF JURISDICTION

The Petitioner has approached this Hon’ble court under section 125 of the Criminal
Procedure code,1973 in form of a petition. Relevant part of Section 125 of the Criminal
Procedure Code,1973 has been reproduced as under-

Section 125 of CrPC- Order for maintenance of wives, children and parents.—

1) 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 as such Magistrate thinks fit and to pay the same to such person as the
Magistrate may from time to time direct:

Provided that 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: [Provided further that the Magistrate may, during the pendency of the
proceeding regarding monthly allowance for the maintenance under this sub-section, order
such person to make a monthly allowance for the interim maintenance of his wife or such
child, father or mother, and the expenses of such proceeding which the Magistrate considers
reasonable, and to pay the same to such person as the Magistrate may from time to time
direct:

Provided also that an application for the monthly allowance for the interim maintenance and
expenses of proceeding under the second proviso shall, as far as possible, be disposed of
within sixty days from the date of the service of notice of the application to such person.
Explanation.—For the purposes of this Chapter,— (a) “minor” means a person who, under
the provisions of the Indian Majority Act, 1875 (9 of 1875) is deemed not to have attained his
majority; (b) “wife” includes a woman who has been divorced by, or has obtained a divorce
from, her husband and has not remarried.

The petitioner humbly submits to the jurisdiction of this Hon’ble court.

 STATEMENT OF FACTS

1. Jim and Pam were in a relationship throughout school and college.

2. Pam got the job of a school teacher. Jim cleared UPSC and became an IAS officer.
3. Both got married in the year 2005 and bought a house in Chandigarh.
4. In the year 2010, they were blessed with twins, Ron and Ginny, son and daughter
respectively.
5. With time, they developed differences and there were daily fights between them.
6. Pam left the company of Jim and started living separately in the same city in 2016.
7. Jim filed a petition for divorce in 2017.
8. Pam opposed the divorce but with the help of Mediation and Conciliation, they
agreed for divorce with mutual consent.
9. Divorce was granted in July 2018.
10. Pam got Rs. 15 lakh as permanent maintenance and alimony for herself and forgo
maintenance for twins.
11. Custody of twins will remain with Pam and Jim shall have the visitation right on
2nd and 4th Sunday every month.
12. In 2023, pam as a natural guardian of twins, filed the present petition under
section 125 of CrPC for grant of maintenance for twins on ground of inflation and
excessive school fees.
 ISSUES RAISED

1. WHETHER THE PRESENT PETITON IS MAINTAINABLE UNDER THE

CRIMINAL PROCEDURE CODE,1973?

2. WHETHER WIFE CAN CLAIM MAINTENANCE FOR MINOR

CHILDREN AFTER FOREGOING IT DURING THE TIME OF
SETTLEMENT OF CLAIMS?

3. WHETHER THE WIFE CAN CLAIM MAINTENANCE FOR CHILDREN

ON GROUND OF CHANGE IN CIRCUMSTANCES?
 SUMMARY OF ARGUMENTS

1. WHETHER THE PRESENT PETITON IS MAINTAINABLE UNDER THE

CRIMINAL PROCEDURE CODE,1973?
It is humbly submitted before this Hon’ble court that the present petition for
maintenance is maintainable under section 125 of the Criminal Procedure Code,1973
which empowers a wife to claim maintenance from her husband. Explanation (b) to
the section makes it clear that wife includes a divorced wife who has not remarried. In
the present case, Pam is a divorced wife who has not remarried.

2. WHETHER FATHER IS BOUND TO MAINTAIN THE CHILDREN AFTER

DIVORCE EVEN WHEN CHILDREN ARE IN CUSTODY OF WIFE AND
WIFE HAS FOREGONE THEIR RIGHT OF MAINTENANCE?
It is humbly submitted before this Hon’ble court that wife can claim maintenance on
behalf of minor children when they are in custody of wife and wife can give up
maintenance right only regarding to herself and not minor children as father is bound
to maintain minor children. In the present case, the twins Ron and Ginny are minors
therefore Jim is bound to maintain them.

3. WHETHER THE WIFE CAN RECLAIM MAINTENANCE FOR CHILDREN

ON GROUND OF CHANGE IN CIRCUMSTANCES?
It is humbly submitted before this Hon’ble court that wife can claim maintenance
even after receiving alimony if she is unable to maintain herself or children. In the
present case, the essential that the person claiming maintenance must be unable to
maintain herself is fulfilled.
 ARGUMENTS ADVANCED

1. WHETHER THE PRESENT PETITON IS MAINTAINABLE UNDER THE

CRIMINAL PROCEDURE CODE,1973?
It is humbly submitted before this hon’ble court that the present petition is
maintainable as per Section 125 of the Criminal Procedure Code,1973.

2.1. Whether wife as well as children can claim maintenance under

section 125
Relevant part of the Section 125 of Criminal Procedure Code,1973 has been
reproduced as follows:-
125. Order for maintenance of wives, children and parents.—(1) 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,
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 as such Magistrate
thinks fit and to pay the same to such person as the Magistrate may from time
to time direct

(a). His Wife- In S.S. Bhatiya vs State of Gujarat1, the hon’ble court stated
“the term wife appearing in section 125(1) means only a legally wedded wife.”
In the present case, Pam was legally wedded to Jim in the year 2005, thereby
conferring the status of wife on her. Therefore, Pam is legally entitled to
envoke the section 125 of Criminal Procedure Code,1973.
In Rajnesh vs Neha and anr2, the Hon’ble Supreme Court stated that:-
“if the wife is earning, it cannot operate as a bar from being awarded
maintenance by the husband”.

1
(2005) 3 SCC 636 (Cri) 787.
2
(2021) 2 SCC 324
 Therefore, even after the petitioner is earning, she can still invoke section 125
of Crpc.
(b). His legitimate or illegitimate minor child-
Explanation—For the purposes of this Chapter— (a) “minor” means a
person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875)
is deemed not to have attained his majority.
Explanation to this section makes it aptly clear that children who are below the
age of 18 years are entitled to claim maintenance. In the present case, twins,
Ron and Ginny, son and daughter respectively were born in the year 2010, i.e.
they are 13 years old which makes them entitled to claim maintenance under
this provision.

2.2. Essential conditions for granting maintenance:

1. Sufficient means to maintain:
According to Section 125(1) of the Code of Criminal Procedure, the person
from whom maintenance is claimed must have sufficient means to maintain
the person or persons claiming maintenance. Here, the expression 'means' does
not signify only visible means such as real property or definite employment.
In the present case, Jim is an IAS officer which makes it obvious that he is
earning a handsome amount of money, therefore he has the sufficient means to
maintain his children.

2. Neglect or refusal to maintain:

As per Section 125(1) of the Code of Criminal Procedure, the person from
whom maintenance is claimed must have neglected or refused to maintain the
person or persons entitled to claim maintenance.
Neglect means a default or omission in the absence of a demand whereas
'refuse' means a failure to maintain a default or a denial of obligation to
maintain after demand. A neglect or refusal to maintain may be by words or by
conduct. It may be expressed or implied. Neglect or refusal may mean
something more than mere failure or omission. When there is duty to maintain,
mere failure or omission may amount to neglect or refusal.
 In Balbir Singh vs Hardeep Singh3, the court stated that “if the child is living
with mother who is its natural guardian, the father is bound to maintain it and
it is not open to him to impose a condition that the child must live with him”.
Therefore, in the present case, Jim is bound to maintain the twins and his
omission to maintain amounts to neglect.

3. Person claiming maintenance must be unable to maintain herself:

The inability of the wife to maintain herself is a condition precedent to the
maintainability of her application for maintenance. As per Section 125(1) (a)
of the Code, maintenance to a wife can be granted when she is unable to
maintain herself. By the phrase 'unable to maintain herself', it is not meant that
she should be absolutely destitute and should be on the street, should beg and
be in tattered clothes.
The maintenance has to be determined in the light of the standard of living of
the person concerned. The amount of maintenance should be such that the
woman should be in a position to maintain herself and that it should not be
much below the status which she was used to at the place of her husband.
In the present case, the petitioner being a school teacher is earning a moderate
income, and she is trying her level best to provide for best quality of education
to her children. Being the sole earning member with a moderate income and
responsibility of two children, she is unable to accommodate the excessive
school fees and other expenses, whereas their father, being an IAS officer is
living the lavish lifestyle of bureaucrats. The petitioner is unable to provide for
her children, the standard of living which their father can easily provide.

Therefore, the present petition is filed before this hon’ble court and is
maintainable as essentials for granting maintenance have been satisfied.

2.3. A divorced wife can claim maintenance

Relevant part of Section 125 has been produced as follows:-

3
1976 CriLJ 1136(P&H)
 Explanation.— (b) “wife” includes a woman who has been divorced by, or
has obtained a divorce from, her husband and has not remarried.
Explanation (b) to section 125 makes it aptly clear that wife includes a woman
who has been divorced and has not remarried , and therefore she is entitled to
claim maintenance in the same way as a wife whose marriage is still
subsisting. By this extended definition of term wife, the right to claim
maintenance is made available to a divorced wife.
In Padmanabhan vs. Bhargavi Sarojini4, it has been held that a wife who
became divorcee by mutual consent by executing a document would fall
within the scope of inclusive definition of wife given in Explanation (b) to
section 125(1).
In the present case, petitioner being a divorced wife by mutual consent, she is
entitled to the right to claim maintenance from Jim, and therefore the present
petition is maintainable under the Code of Criminal Procedure, 1973.

4
1981 Cri LJ 826 (ker)
 2. WHETHER FATHER IS BOUND TO MAINTAIN THE CHILDREN
AFTER DIVORCE EVEN WHEN CHILDREN ARE IN CUSTODY OF
WIFE AND WIFE HAS FOREGONE THEIR RIGHT OF
MAINTENANCE?

2.1. Whether father is bound to maintain the children after divorce

when they are in custody of mother
Minors are entitled to claim maintenance even if they are in custody of mother
who is living separate. The position of law regarding this point has been
summarized by the full bench of Hon’ble Punjab & Haryana High Court in the
landmark case of Balbir Singh Vs Hardeep Singh as follows:-

1. “If the child was living with the mother who was its natural guardian, the
father is bound to maintain it and it is not open to him to impose a condition
that the child must live with him.

2. Even in a case where the father is the natural guardian, but the child is in
the custody of the mother, father’s obligation to maintain the child subsists
and he cannot impose a condition requiring the child to come and live with
him in case the child has not attained the age of discretion or is not living
with the mother of its free will or volition.

3. In such a case, in order to escape his liability to pay maintenance allowance,

the father must obtain the custody of the child from the proper Court, but till
the custody is obtained, the child must be maintained wherever it is.

4. Father’s liability to maintain the child does not cease merely because the
child has attained the age of discretion but is living with the mother on
account of natural love and affection or attachment with her. Till the father
gets the custody of the child, it can successfully claim maintenance.
“For the reasons indicated above, We find that the minors in this case are
entitled to claim maintenance from their father even if their custody is with
the mother, as the father had failed to obtain their custody from the guardian
Court.”5

It was observed by the court “in case of wife, the husband can show that her
refusal to live with him was unjustified and can thereby get rid of his liability
to maintain her. In case of a child, however, no such course is open to the
father.” 6

5
1976 Cri LJ 1136 (P&H)
6
1976 Cri LJ 1136 (P&H)
 In Anshu Gupta vs. Adwait Anand7 “ a parent, regardless of gender,
possessing adequate means yet neglecting or refusing to provide for their
minor child, is liable for child maintenance.”

In Rajnesh vs. Neha8 the Hon’ble Supreme Court has settled that both, the
working father and working mother have to take the liability of the child and
if the mother is working, it does not mean that the father will be absolved
from taking the responsibility of his child. The father is legally bound to
maintain his child according to the status and lifestyle.

2.2. Whether mother can forego the right of maintenance of minor

children
it is humbly submitted before this hon’ble court that a mother can forego the
right of maintenance of herself during divorce by mutual agreement but she
cannot forego the right of maintenance of her minor children.
This position has been made clear by the Hon’ble Supreme Court of India in
the case of Ganesh vs. Sudhirkumar Srivastava and ors.9 The court
observed:-
"It was certainly open to the wife to give up any claim so far as maintenance
or permanent alimony or stridhan but she could not have given up the rights
which vest in the daughter insofar as maintenance and other issues are
concerned”
The Supreme Court has observed that a mother cannot give up the rights
which vest in the daughter insofar as maintenance and other issues are
concerned during divorce by mutual consent.
Therefore, in the present case, the petitioner could not validly forego right of
maintenance of minor children and therefore, she has the right to claim
maintenance for children.
In Fateh Saharan vs Rohit Saharan10, the Delhi High Court has observed
that a minor child is entitled to claim maintenance for his upbringing by the

7
2023 SCC 916 (utt)
8
2021 2 SCC 324
9
Civil Appeal no.4031 of 2019
10
CM APPL. 26971/2021
 father and that such a child is not bound by the divorce settlement regarding
maintenance between his parents.

3. WHETHER THE WIFE CAN CLAIM MAINTENANCE FOR CHILDREN

ON GROUND OF CHANGE IN CIRCUMSTANCES?

It is humbly submitted before this hon’ble court that change in circumstances is a

valid ground for the demand of maintenance. This position has been cleared by
the precedents as follows.

In Shyam Bahadur Singh v. State of U.P. and Another11, the court has held that
when there is a change in circumstances entitling a person to be a claimant as per
Section 125 of the Criminal Procedure Code (Cr. PC.), he or she may apply for
the maintenance. The court observed:
“There may be instances where the person who falls within the purview of section
125 Cr.P.C. as being one who has been neglected or refused maintenance during
certain period of time. There may be some instances where a person, is for the
time being able to maintain himself or herself loses her/his resources because of
changed circumstances. In such cases a fresh right to claim maintenance may
accrue. Legally the liability to maintain under section 125 Cr.P.C. is continuing
one. In my view, when there is a change in circumstances entitling a person to be
a claimant as per provisions of section- 125 Cr.P.C., he or she can very well
apply for maintenance.”
Therefore a fresh petition for maintenance is maintainable on account of change
in circumstances.
T. Vimala v. S. Ramakrishnan, Crl. R.C.12 it was stated that the obligation of a
father to maintain, to meet the educational expenses of his children cannot be
excluded for the component of maintenance.

In the present case, as the minor children are entitled for maintenance, a fresh
claim of maintenance can be made due inflation and increase in school fees as

11
2023 AHC 114038
12
(MD) no. 180 of 2014 R.C.
these amount to change in circumstances which is a valid ground for claiming
maintenance as per the Hon’ble Allahabad High Court.

PRAYER

Wherefore in the light of issues raised, arguments advanced and authorities cited,
it is humbly requested that this Honorable Court may be pleased to adjudge and
declare:
1. That the present petition is maintainable and the respondent father is
bound to maintain children after divorce.

2. Direct the respondent to pay Rs.20,000/- per month as maintenance for

children
And/Or
Pass any such order as the Honorable Court deems fit and proper
according to the circumstances of the present case.

FOR THIS THE PLAINITIFF SHALL DUTY BOUND EVER PRAY

Counsel appearing on behalf of petitioner