A second wife is entitled to claim maintenance under Section 125 of the Code of Criminal Procedure (CrPC), the Bombay High Court (HC) has ruled. Her husband can’t deny her claim if the fault for keeping her in the dark about the first marriage lies with him, a single-judge bench of Justice Rajesh S Patil has ruled.
“We are dealing with a situation where the marriage between the parties has been proved. However, the petitioner was already married. But he duped the respondent by suppressing the factum of the alleged first marriage. On these facts, in our opinion, he cannot be permitted to deny the benefit of maintenance to the respondent, taking advantage of his wrong,” the high court said in its order dated December 14, 2023.
For the uninitiated, Section 125 of the CrPC, 1973, talks about the maintenance of wives, children and parents, and only a wife with a legally wedded status can claim maintenance. According to the Hindu Marriage Act, of 1955, a second marriage has legal status only when “at the time of marriage, none of the parties should have a living spouse”. Among many conditions that Section 5 of The Hindu Marriage Act, 1955, sets to provide a marriage legal sanctity is that ‘neither party has a spouse living at the time of the marriage’.
Even though the man’s first wife was alive in the present case, the court ruled that for Section 125 of CrPC, the petitioner would be treated as the wife of the respondent.
It also said that the standard of proof of marriage in such proceedings is not as strict as is required in a trial of offence under Section 494 Indian Penal Code (IPC).
“The validity of the marriage for summary proceedings under Section 125 CrPC is to be determined based on the evidence brought on record by the parties. The standard of proof of marriage in such proceedings is not as strict as is required in a trial of an offence under Section 494 IPC. If the claimant in proceedings under Section 125 of the Code succeeds in showing that she and the respondent have lived together as husband and wife, the court can presume that they are legally wedded spouses, and in such a situation, the party who denies the marital status can rebut the presumption. Once it is admitted that the marriage procedure was followed then it is not necessary to further probe into whether the said procedure was complete as per the Hindu rites in the proceedings under Section 125 CrPC,” the Supreme Court ruled while passing its judgement in the Dwarika Prasad Satpathy versus Bidyut Prava Dixit case in 1999.
Facts of the case
The second wife on December 20, 2012, applied Section 125 of the Code of Criminal Procedure, 1973, for a grant of maintenance before the JMFC, Yeola, from her husband. In her plea, she stated that she was the second wife of the respondent, and her marriage took place in 1989. It was further stated that she was made to believe that the first wife of the respondent was not cohabiting with him she was not able to conceive a male child, and that the respondent got a divorce from her. Meanwhile, she gave birth to a male child in 1991.
After one or two years of her marriage, the first wife requested the respondent through mediators to allow her to cohabit with him, and through the intervention, the petitioner herself gave consent to the respondent to allow the first wife to reside with them jointly. Thereafter, both the petitioner and the first wife gave birth to a male child. Facing harassment by the first wife and the husband, the petitioner started living separately along with her children in the same village. After 2011, the respondent stopped paying the maintenance amount to the petitioner. The husband on the other hand claimed he never married the petitioner. His first marriage was still in existence, and he had never divorced Jijabai. The husband further stated that he never resided with the petitioner, and he has no concern with her children.
However, there was enough proof to substantiate the claim of the second wife that the marriage did take place and the two lived together as well.
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