Maintenance to Second wife
By: Bhavya Verma
Class: BA LLB 3B
Roll No:18
Introduction
• Bigamous and polygamous marriages have not been given statutory
recognition under the personal laws of different communities! with
exception of Muslims. Section 5 lays down the conditions for a valid
marriage; Section 5(i) is relevant for the 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 the law. Section 11 of the Hindu Marriage Act clearly says
that a marriage solemnized in contravention of Clause (i) of Section 5
would be void ab initio. Thus, the issue pertinent for the present study is,
whether a married woman whose marriage is void or defective is entitled
to maintenance or not? We shall look into the present legal regime as well
as study various judicial decisions in order to find out the status of the
second wife, both under the civil and criminal law.
• Hindu Adoption and Maintenance Act, 1956, a Hindu male has the duty
put upon him legally to maintain his spouse. “Maintenance” includes
provision for food, residence, clothing, education and medical attendance
and treatment. The Criminal Procedure Code also provides for a provision
for maintenance, regardless of religion.
• In a laymen‟s term maintenance are those things which are indispensible
for the survival of human being. The person who is being given
Maintenance should not have any independent source of income because
that is the whole idea. According to the societal standards, husband is
supposed to work and earn, wife is supposed to manage the tasks at home
by the amount husband yields, wives are not conventionally expected to
go out and work and hence the laws are framed as such. It is expected
that wife cannot support herself after separation and hence the husband
should enrich her with his salary. Although this makes sense if the wife is
to support their child because husband is also expected to be equally
spending in the child’s life.
• The court can fix the maintenance at any amount, depending on its
discretion. When deciding the quantum of maintenance to be awarded,
the court takes into account the income of parties, their status and other
circumstances. When the wife applies for maintenance, the onus is on the
husband to declare his income.
• The persons who are entitled to maintenance are wife, widowed
daughter-in-law, children, aged parents and dependants.Whereas, under
the Muslim law, the persons entitled to maintenance are wife, young
children, the necessitous parents, and other necessitous relations within
the prohibited degrees.
Earlier Position
• Under the old laws i.e before the commencement of the Hindu Marriage
Act, 1955, a woman was not allowed to remarry until and unless her
customs permit her. However, there was no such law for the men. Slowly,
Hindu law was made Monogamous with various states bringing anti-
bigamy laws.
• The Hindu husband has a legal obligation to maintain his wife during his
lifetime. However, if a wife ceases to be Hindu or lives separately under no
legal grounds she loses the right to claim maintenance too.
• Under Criminal Procedural code, 1973, only wife can claim for
maintenance. The various sections of CrPC are criminal in nature and are
used for the criminal charges. As per the Code, only a legally wedded wife
is entitled to receive maintenance. Although In this capacity, “wife” also
includes a wife who has separated via the right legal procedures with the
husband i.e has obtained a true decree of divorce, can also claim
maintenance from the person she was married to.
• The problem arises where a woman, who stands as a second wife to a
man, is not granted such a right since the second marriage is declared void
by the law. In this entire stigma of the second marriage, the person who
suffers the most is – the second wife. It is mental harassment for the
second wife if what is happening to her is not due to her fault. Keeping
aside the cases of connivance, in most of the cases the husband tricks the
wife into marrying her without letting her know of his previous marriage.
Within moments the whole life of the second wife comes crashing, there is
no legal status, all the rights are declared void and the woman no more
has any legal standing. It is not only humiliating for the wife but also
socially discrediting. In cases where the wife also has a child, it becomes
very difficult for the woman to pick herself up and also work to support
her family.
Current Position
• There is no specific provision as to providing the second wife with
maintenance but it is through this landmark judgment that this status of
second wives was reviewed and the provisions were interpreted in
pursuance of the same.
• Badshah vs. Sou. Urmila Badshah Godse & Anr.
• The respondents filed an application under Section 125 of the Code of
Criminal Procedure,1973 and stated that respondent 1; Urmila was
married to Popat Fapale. In 1997, she got divorced from her first husband.
On demand of the petitioner for her marriage through mediators, she
married him on 10.2.2005 at Devgad Temple situated at Hivargaon-
Pawasa. Her marriage was performed with the petitioner as per Hindu
Rites and customs. After her marriage, she resided and cohabited with the
petitioner. Initially, for 3 months, the petitioner cohabited and maintained
her nicely.
• About three months later, a woman named Shobha came to Urmila‟s
house and claimed herself to be Badshah‟s first wife. On inquiring from
her husband about the lady, he replied that if she wanted to cohabit with
him, she should reside quietly; otherwise she was free to go back to her
parent‟s house. When Shobha came to their house, Urmila was already
pregnant with Badshah‟s child.
• Due to her pregnancy, she tolerated the ill-treatment by her husband and
stayed along with Shobha. However, the petitioner started to mentally and
physically torture her under the influence of liquor. Her husband also
doubted that her womb is begotten of somebody else and it should be
aborted.
• When the ill-treatment became intolerable, she came back to parents‟
house. In 2013, the Bombay High Court awarded maintenance to
respondent 1 at Rs.1000 per month and to the daughter at Rs. 500 per
month. The appeal petition was filed by the husband against this decision.
• The court held that the second wife is entitled to maintenance under
Section 125 and the petitioner duped the respondent by hiding the
information about his first marriage. He cannot deny his second wife‟s
right to maintenance. The court‟s decision was based on the following
reasons:
• If a man and woman have been living together for a long time even
without a valid marriage, the term of valid marriage entitling such woman
to maintenance should be drawn and a woman in such a case should be
entitled to maintenance under Section 125.
• A false representation was given to respondent 1 that he was single
and was competent to enter into a marital tie with respondent 1.
The petitioner cannot be allowed to take advantage of his own
wrong and deny maintenance to his second wife. For the purpose of
Section 125 CrPC, respondent 1 would be treated as the wife of the
petitioner.
• The wife was unaware of the first marriage of the husband.
• The purpose of Section 125 is to achieve „social justice‟ which is
enshrined in the Preamble of the Constitution of India.
• A woman who is the second wife is also entitled to the right of
maintenance under Section 125 when there is sufficient evidence to
prove that she was unaware of her husband’s previous wedding and
the second wedding was performed in accordance with the
personal laws. Thus Supreme Court judgment on maintenance
observed that second wife is not entitled to maintenance generally
but where she was unaware of husband’s first marriage she is
entitled to maintenance under section 125.
When is maintenance provided to the
second wife.
• When the Parties have lived together for ‘considerable time
• It is held that it is sufficient if evidence is available to the effect that the
parties lived together for a considerable time. In this case, the court held
that it was established that the petitioner had been living with the
respondent for a considerable period and continuously, so as to give way
for the child to be born- this status of the petitioner is sufficient to get
maintenance for herself as well as for the child. Where the husband
misrepresented that the first wife was dead, the second wife would be
entitled to maintenance and the child from the maintenance and the child
from the second marriage would be a legitimate child and deserve her/his
rightful maintenance.
• Where wife can prove she was unaware of First Marriage
• "At least for the purpose of claiming maintenance under Section 125 of
Cr.P.C. (Criminal Procedure Code), such a woman (and any child from the
second marriage) is to be treated as the legally wedded wife".
• The interpretation of the word „wife‟ as under section 125 of the CrPC
was put forward to suit the position of the second wife.
• The bench consisting of Justice Ranjana Prakash Desai and Justice AK Sikri,
in the case made the issue clear with respect to - a woman marrying a
man who claims to be unmarried or in a situation where the woman does
not have prior knowledge of any subsisting marriage then such a second
wife can rightfully claim maintenance. The reason is that the law cannot
be misused by men to cower from paying maintenance where rightfully
due to a second wife who was unaware of any subsisting marriage and
needs/ or is claiming rightfully maintenance from the husband.
• The Supreme Court said that the landmark judgement would be applicable
in cases where the spouse from a second marriage would be unaware of
her husband’s first marriage.
• ‘‘If the choice is between two interpretations, the narrower of
which would fail to achieve the manifest purpose of the
legislation should be avoided. We should avoid a construction
which would reduce the legislation to futility and should
accept the bolder construction based on the view that
parliament would legislate only for the purpose of bringing
about an effective result. If this interpretation is not accepted,
it would amount to giving a premium to the husband for
defrauding the wife.’’
• Thus, while interpreting a statute, the court may not only take
into consideration the purpose for which the statute was
enacted, but also the mischief it seeks to suppress. The court
further added that the ruling of the Bombay High Court in
Aadhav and Savita Ben would not be applicable if the second
wife knows about the existence of the first marriage.
Conclusion
• A second wife has to suffer a lot due to the social stigma that is attached
to the second marriage. The absence of legal recognition of her marriage
is heartbreaking and pushes her to question even her existence. Being
betrayed by someone on such a level breaks the person from inside to the
point that the person loses the quiet sense to become practical about life.
When a person is already going through so much, the burden of illegal
marriage and void relations becomes too much to handle. Laws in a
country is basically to protect the rights of the persons it governs and
hence, it is commendable how the court has interpreted the provision in
pursuance of protecting the rights of the second wife. Even though due to
the judicial precedent that is available for the maintenance of the second
wife, but the absence of the clear provision regarding the maintenance
her claim for maintenance depends on the discretion of the judges.
• The absence of such laws provides loophole in the Indian Law. These are
easily exploited by the husbands to defend themselves.
• Does the entitlement of Maintenance to the second wife validate the
second marriage in any way?
• No, the entitlement of maintenance to the second wife does not in any
way validate the provision of the second marriage because the whole
point of the interpretation to the provision was to protect the unfairness
of bigamy and not promote the abuse of any kind of law.
