MAINTENANCE TO SECOND WIFE JUDICIAL APPROACH

Divya Sharma*

INTRODUCTION

The marriage under Hindu law is a voluntary union of one man with one woman to the exclusion of all others. Bigamous and polygamous marriages have not been given statutory recognition under the personal laws of different communities 1 with exception of Muslims. Section 5 lays down the conditions for a valid marriage; Section 5(i) is relevant for present study which states that ‘neither party has a spouse living at the time of marriage.' The expression, ‘spouse living' here needs to be understood as the legally wedded spouse in the eyes of law. A marriage solemnized in contravention of Section 5(i) would be void ab initio as per Section 11. Section 17 provides that any marriage solemnized between two Hindus is void, if at the time of such marriage either party had a husband or wife living; and makes it a punishable offence.

MAINTENANCE UNDER HINDU ADOPTIONS AND MAINTENANCE ACT, 1956 ( HAMA )

A Hindu is under legal obligation to maintain his wife, arising out of the very nature of the relationship that exists between them. An inclusive definition of ‘maintenance' is found under Section 3(b)(i) of HAMA under which maintenance includes, provisions for food, clothing, residence, etc. Section 18(2)(d) states the grounds on which wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance if, he has another wife living.

MAINTENANCE UNDER HINDU MARRIAGE ACT, 1955(HMA)

HMA, 1955 deals with the procedural aspects of claiming maintenance, by a wife who is respondent in matrimonial proceedings. An order for permanent alimony and maintenance under Section 25 may be made when “any decree granting substantive relief” is passed. 2

MAINTENANCE UNDER CRIMINAL PROCEDURE CODE, 1973(Cr.P.C)

The Cr.P.C provides for maintenance of wives, irrespective of religion or whether or not any matrimonial proceedings are pending. Section 125 of the Code mentions, that maintenance shall be granted to the ‘legally wedded wife' only. In another capacity, namely as a divorced wife, she is entitled to claim maintenance from the person of whom she was once the wife. 3 According to Explanation to Section 125, ‘wife' includes a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried.

JUDICIAL APPROACH ON SECOND WIFE

The pertinent issue in this article is, whether a wife whose marriage is void or defective is entitled to maintenance. This question has, in fact come up before different High Courts on several occasions. And courts have taken conflicting views depending on the facts and situation of each case and interpreting the expression “wife” under Section 125 either liberally or narrowly.

HIGH COURTS' OPINION

The question first came up before the Madras High Court in Narayanaswami v. Padmanabhan , 4 where the Court opined that Section 25 of the HMA, 1955, cannot be construed in such a manner as to hold that notwithstanding the nullity of the marriage, wife retains her status for purposes of applying for alimony and maintenance. The Court took conservative view for maintenance to wife whose marriage is in contravention to the provisions of Sections 5(i) read with 11 of HMA.

However, the MP and Bombay High Courts took broader views. In Laxmi Bai v. Ayodhya Prasad , 5 the Court held that the expression ‘wife' or the ‘husband' used in Section 24 of HMA should be construed liberally to mean petitioner or respondent claiming to be wife or husband in a pending matrimonial case. It was held that the Act confers wide powers on the matrimonial Courts so as to regulate the matrimonial relationship between the parties and such powers are to be exercised by the Court even in a case of alleged or proved invalid bigamous marriage. Similar view was taken by the Bombay High Court in Govindrao Ranoji Laxmi Bai v. Ayodhya Prasad, 6 where second wife was entitled for maintenance.

The views expressed in Govindrao's case was consistently followed by different High Courts in Dayal Singh v. Bhajan Kaur, 7 Shantaram v. Dagybau , 8 Mangla v. Prahlad, 9 Krishankant Vyas v. Reena, 10 Veena Devi v. Ashok Kumar Mandal, 11 Mallika v. P. Kundanlal, 12 until 2004 when Full Bench of the Bombay High Court overruled its earlier decisions in Bhausaheb v. Leelabai. 13

In Babusaheb's case it was held that the expression “any decree” in Section 25 of HMA cannot be construed to read in so much liberal and expanded form that it would interpret “every decree”. Section 25 though, a welfare legislation, does not have distinct tilt in favour of wife so as to enable even “illegitimate wife” to claim maintenance. The Court further observed that if the construction of word “wife” is not accepted uniformly, for the purpose of same remedy provided in special legislation i.e., Section 125 of Cr.P.C, anomalous position may occur.

In January 2008, Delhi High Court in Narinder Pal Kaur Chawla v. Manjeet Singh Chawla 14 again held that second wife has right to claim maintenance under Section 18 of HAMA, taking support from the provisions of the Protection of Women from Domestic Violence Act, 2005. The legislature has carved out distinction between `second wife' and `concubine'.

In March 2008, Division Bench of the Bombay High Court 15 frowned on relationships arising out of second marriage and held that second wife has no claim over the family pension of a Government Employee when his or her spouse still alive. The Judges referred to Supreme Court decision of Rameshwari Devi v. State of Bihar where it was held that while minor children from a second marriage could claim a share of family pension till they turned adult, the second wife was not entitled to it.

But in April 2008, Division Bench of the Delhi High Court held that law protects not only man's wife but also a “mistress” or a “living partner”, expanding the ambit of the law on Protection of Women from Domestic Violence. The Court also said that “it is not unconstitutional for the parliament to provide for protection to a woman in a relationship akin to marriage along with and juxataposed to the protection given to wives and legitimate children.”

SUPREME COURT'S OPINION

There have been unfortunate situations where a woman defrauded by a man into bigamous relationship had to suffer. Her status being that of an illegitimate wife, she is not entitled to claim maintenance in view of the Supreme Court Rulings in Yamunabai v. Anantrao 16 and Bakulbai v. Gangaram. 17

In Rameshwari Devi v. State of Bihar, 18 and Savitaben Somabhai Bhatya v. State of Gujarat, 19 the Courts reiterated the principle that in order to invoke the benefit of Section 125 Cr.P.C, ‘wife' has to be a “legally wedded wife.” Accordingly, if a woman marries with full Hindu rites a man who is already having a living spouse, her marriage with that man is “a complete nullity in the eyes of law and she is, therefore, not entitled to maintenance,” relying on Smt. Yamunabai Anant Rao Adhav v. Anant Rao Shivram.

But, in Dwarika Prasad Satpathy v. Bidut Prava Dixit 20 and Ramesh Chandra v. V. R. Daga 21 the Court held that a bigamous marriage may be declared illegal being in contravention of law but it cannot be said to be immoral so as to deny even the right of alimony or maintenance to a spouse financially weak and economically dependent.

On 22nd January, 2008 the Court in Vidyadhari v. Sukharana Bai 22 has given partial relief to second wife without deciding her status, who has been duped into bigamous relationship. To balance the equities the Court recognized Sukharana Bai as one of the legal heir of the deceased and ordered Vidyadhari to protect one- fifth share of hers.

CONCLUSION AND SUGGESTIONS

Until now the maintenance of a wife marrying a male Hindu during the subsistence of his first marriage is the moot question that has been debated and confronted upon amongst various jurists, Lawyers, Judges of various Courts, etc.

We discussed the conflicting decisions of High Courts over the issue of maintenance to second wife, while the Supreme Court gave some kind of recognition to the second wife.

The 178th Report 23 of the Law Commission of India recommended amendments in Sections 125 of Cr. P.C and 18 of HAMA , by providing maintenance to second wife.

The question that arises for our consideration is whether the husband can take advantage of his own wrong by not disclosing to the second wife the factum of his first marriage, can it be said that legislature which was conscious of the social stigma attached to children of void/voidable marriages closed eyes to plight of a woman who unknowingly of the legal consequences entered into the matrimonil relationship? When legal terms are inadequate and lead to loose ends in unfair treats, the Court can rely on its inherent power to do justice by giving remedial and such salutary reliefs like lumpsum payment damages in the form of maintenance to Second Wife.

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* NALSAR University of Law, Hyderabad.

1. Kusum, Family Law Lectures, Family Law I, ( New Delhi : Lexis Nexis Butterworths, 2003), pp. 3-7. Also see Sections 18 and 19 of the Parsi Marriage and Divorce Act, 1936; Section 4 (a)read with Section 24 of the Special Marriage Act, 1954 and Indian Christian Marriage Act, 1872 Section 60, Indian Divorce Act, 1869 Sections 18 and 19

2. Corresponding provisions under the Personal Laws are Special Marriage Act, 1954, Section 37, The Divorce Act 1869 Sections 36, 37 and 38 as amended in 2001; Dissolution of Muslim Marriage Act, 1939, Section 2((a) The Muslim Women (Protection of Rights on Divorce) Act, 1986, Section 4.

3. Rohtash Singh v. Ramendri, 2000 Cr. L. J. 1498 (SC) as cited in Anil Zachariah, A Second Wife is Entitled to Maintenance or Not? 2004 (2) KLT, p. 16.

4. AIR 1966 Mad. 394.

5. AIR 1991 MP 47.

6. AIR 1976 Bom. 433.

7. AIR 1973 Punj.44.

8. AIR 1987 Bom.182.

9. 1994 Cr.LJ 2643, 2644 Bom.

10. AIR 1999 Bom. 127.

11. 2000 Cr LJ 2332(Pat.).

12. Cri. LJ 2000 142 (Mad).

13. AIR 2004 Bom. 283.

14. AIR 2008 Del. 7

15. Shibu Thomas, Second Wife has no claim on family pension-HC : TOI, 3.3 2008, p. 1.

16. AIR 1988 SC 644

17. 1988(1) SCALE 188

18. AIR 2000 735. See also in Supreme Court cases Mohd. Ikram Hussain v. UP; Raj Kumar Kanwal v. UOI and K. Vimla v. K. Veeraswamy.

19. AIR 2005 SC 1809.

20. 2000 Cr. LJ 1 SC.

21. AIR 2005 SC 441

22. Civil appeal No. 575 of 2008.

23. 178th Report on Recommendations for amending various Enactments, both Civil and Criminal, December, 2001(Web site www.lawcommissionofIndia.nic.in)