You must have read in newspapers or magazines, or heard that second marriage is illegal in India and the husband can be prosecuted by his wife under Section 494 of the Indian Penal Code, 1860. The first wife is the only legally wedded wife and has all the rights of maintenance under personal laws as well CrPC.

But what about the second wife? Is second marriage legal in India? Whether second wife is entitled to maintenance? The answer to this question was provided by the Hon’ble Supreme Court judgment on second wife maintenance in the following case:

CASE NUMBER: Criminal Miscellaneous Petition No.19530/2013

CASE TITLE: Badshah vs Sou. Urmila Badshah Godse & Anr.

DATE: October 18, 2013

CORAM: Justice Ranjana Prakash Desai and Justice A.K. Sikri

FACTS OF THE CASE

The respondents filed an application under Section 125 of the Code of Criminal Procedure (CrPC) and stated that respondent 1, Urmila was married to Popat Fapale. In 1997, she got divorced from her first husband and she resided at her parents’ house till 2015. 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. Respondent 2, Shivanjali, was born on 28.11.2005 and the mother and child filed a maintenance petition. 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.

ARGUMENTS BY PETITIONER

The petitioner denied any relations with the woman and his child. He alleged that he never entered into any matrimonial alliance with Urmila on 10.2.2005, as claimed and said that she was in the habit of leveling false allegation and was trying to blackmail him. He also denied cohabitation with her and claimed that he was not the father of her child either.

According to the petitioner, he had married Shobha on 17.2.1979 and from that marriage, he had two children viz. one daughter aged 20 years and one son aged 17 years and Shobha had been residing with him ever since their marriage. Therefore, respondent 1 was not and could not be his wife during the subsistence of his first marriage and she had filed a false petition claiming her relationship with him.

The counsel for the petitioner referred to the judgment in Yamunabai Anantrao Adhav vs. Anantrao Shivram Adhay & Anr. where it was held that a Hindu lady who married with a person who had a living lawfully wedded wife after the Hindu Marriage Act came into force, cannot be treated as ‘legally wedded wife’ and consequently her claim for maintenance under Section 125 CrPC is not maintainable.

OBSERVATIONS OF THE COURT

The Hon’ble Supreme Court observed that evidence was led by both the parties and after hearing the arguments the learned JMFC negatived the defense of the petitioner. These findings are upheld by the learned Additional Sessions Judge in his judgment while dismissing the revision petition of the petitioner as well as the High Court. 

The apex court proceeded on the basis that the marriage between the Badshah and Urmila was solemnized; respondent 1 cohabited with the petitioner after the said marriage; and respondent 2 is begotten as out of the said cohabitation, whose biological father is the petitioner. However, it would be pertinent to record that respondent 1 had produced overwhelming evidence, which was believed by the learned JMFC that the marriage between the parties took place on 10.2.2005 at Devgad Temple.

The learned JMFC proceeded on the basis that the petitioner was married to Shobha and was having two children out of the wedlock. At the same time, it has also come on record that the petitioner duped respondent 1 by not revealing the fact of his first marriage and pretending that he was single. After this marriage, both lived together and respondent 2 was also born from this wedlock. In such circumstances, whether respondents could have filed application under Section 125 of the CrPC is the issue.

It was observed by the Supreme Court that so far as respondent 2 is concerned, who is proved to be the daughter of the petitioner, in no case he can shun the liability and obligation to pay maintenance to her. The learned counsel ventured to dispute the legal obligation qua respondent 1 only.

The Supreme Court referred to Dwarika Prasad Satpathy vs. Bidyut Prava Dixit & Anr. (1999) 7 SCC 675 in which it was held that the validity of the marriage for the purpose of summary proceeding under Section 125 CrPC is to be determined on the basis of the evidence brought on record by the parties. The standard of proof of marriage in such proceeding is not as strict as is required in a trial of the offense under Section 494 of the 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 spouse. In such situation, the party who denies the marital status can rebut the presumption. Once it is admitted that the marriage procedure was followed, it is not necessary to further probe into whether the said procedure was complete as per the Hindu rites.

The court also referred to Chanmuniya vs. Virendra Kumar Singh Kushwaha & Anr. (2011) 1 SCC 141where it was held that the term ‘wife’ occurring in Section 125 of CrPC is to be given a very wide interpretation.

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.

In case the husband denies maintenance to his wife, a maintenance petition under Section 125 of the CrPC can be filed with help of a divorce lawyer. Get connected to the best divorce lawyers in India through MyAdvo.

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