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Does affidavit of husband mandatory for Section 125 CRPC?

Shivendra Pratap Singh

Advocate

14/03/2020

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My husband is living in Delhi, and I am in Kanpur. He has expelled me from the marital home and also does not want to give maintenance. Therefore, I want to file a complaint under section 125 CrPC for maintenance. Is it necessary to file the affidavit of husband and wife for filing of the complaint under section 125?

Question from: Delhi

Section 125 of the code of criminal procedure provides the procedure to get a monthly allowance from the husband. Husband is bound to maintain his wife if she is living in poverty. It is the prime liability of the husband, and he cannot absolve himself from such duty. He cannot transfer this liability to any other person like parents of the wife to maintain her if she is living in her parental home.

Affidavit

An affidavit supports the facts of the application under section 125 CrPC. When the wife moves such claim under section 125, then only her testimony is mandatory. Section 125 does not require the prior permission of the husband for filing of such application. The wife has to prove that she is living in poverty, and her husband refuses to give her monetary help. These two conditions are necessary for moving that application. Therefore, the wife is bound to state those facts on affidavit. Without the oath, the court shall not admit the petition.

The consent of the husband is not necessary to initiate a proceeding under section 125. A legally wedded wife is entitled to get maintenance under section 125 CRPC. Therefore, an affidavit from the husband does not require. It is mandatory for every application that its facts must be sworn on the affidavit, this is a procedural requirement, and its compliance is mandatory.

Jurisdiction of the court

You are living in Kanpur, and your husband refuses to maintain; therefore, you can initiate a proceeding under section 125 before the family court of Kanpur. According to Section 126 of the CrPC, a wife can file an application under section 125 at the place where she resides. The court will grant maintenance from the date of filing of the application.

shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate

Practising lawyer in the High Court Lucknow. You can consult on Criminal, Civil, Matrimonial, Writ, Service matters, Property, Revenue and RERA related issues.

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