Can’t Deny Maintenance To ‘Second Wife’, Says Bombay High Court

INTRODUCTION

Recently, the Bombay High Court, in its Criminal Writ Petition of 2022, delivered a landmark judgment affirming a woman’s entitlement to maintenance under Section 125 of the Code of Criminal Procedure (Cr.P.C.).

The Bombay High Court, through a single-judge bench of Justice Rajesh Patil on December 14, upheld a 2015 magistrate’s order requiring monthly maintenance of Rs 2,500 for a woman who had been led to believe her husband had divorced his first wife before marrying her in 1989. The court, citing legal provisions for the maintenance of a wife, also permitted the woman to seek an increase in the maintenance amount.

BACKGROUND

Mrs. Alka Bhad applied in December 2012 under Section 125 of the Cr.P.C. seeking maintenance from her husband, Mr. Bhausaheb Ramrao Bhad. The petitioner contended that she was the second wife of the respondent, marrying him in 1989, and alleged harassment and cessation of maintenance since 2011. The respondent, however, denied the marriage and the subsequent claims.

In January 2015, a judicial magistrate first class in Yeola, Nashik district, on the woman’s plea of 2012, had granted her only Rs. 2,500 as monthly maintenance based on the husband’s monthly income of Rs. 50,000 – Rs. 60,000.

In April 2022, the sessions court set aside the magistrate’s order. Soon after, the woman petitioned the High Court against the sessions court order. She informed the Court that she had married the man in 1989 and delivered a son in 1991. She said that two years into her marriage, the first wife, through intervention of mediators and her own consent, started cohabiting with her husband and also gave birth to a son. Later, the ‘second wife’ again gave birth to a son. She pointed to the school records of her children and their statements in which the man was clearly shown as the father.

Soon after her second son’s birth, problems arose and she started living separately and received maintenance till 2011, when allegedly at the instigation of the first wife, he stopped the payments.

The woman was ready to undergo DNA tests on her and the children to prove paternity. A man, who had arranged the marriage ceremony, had also deposed in court in favour of the woman, while another villager and the woman’s brother told the court that the man and woman used to reside together, and they had been married.

JUDGEMENT AND RATIONALE

The Hon’ble Bombay High Court ruled that a woman who married a man under the false pretence that he was divorced is entitled to maintenance as his ‘wife’ under Section 125 of Cr.P.C.

Justice Rajesh Patil emphasized that the respondent cannot deny the petitioner’s maintenance claim based on his own misrepresentation.

According to the Court’s decision, if the woman can establish that she and the respondent lived together as husband and wife, the court can presume them to be legally married spouses, especially since the standard of proof for claiming maintenance is more relaxed than what is required in trials under the Indian Penal Code.

The court, relying on the precedent of Dwarika Prasad Satpathy v. Bidyut Prava Dixit, ruled in favour of the petitioner. The judgement highlighted that the standard of proof in maintenance proceedings is not as strict as in a trial under Section 494 of IPC.

The Court noted that once the marriage procedure is admitted, further probing into whether the procedure was completed according to Hindu rites is unnecessary in proceedings under Section 125 of the Cr.P.C.

The Court also rejected the husband’s argument about the birth date of the petitioner’s son, emphasizing that the woman was claiming maintenance for herself.

The Court allowed the petitioner’s plea and permitted her to file a fresh application to enhance the maintenance.

The High Court, referencing a 1999 Supreme Court ruling, highlighted that the standard of proof of marriage in a Section 125 proceeding is not as rigorous as required for an offence under Section 494 of IPC. Emphasizing the husband’s acknowledgment as the father on both sons’ school documents, the court dismissed the sessions court’s decision, allowing the woman two months to receive outstanding dues for the past nine years. Additionally, the woman was granted the right to file a fresh plea for an increased maintenance amount.  

STANCE OF THE COURT ON SUCH ISSUES

The Hon’ble Bombay High Court had earlier also took a similar stance on a similar factual matrix. The Court had upheld an order that said a woman is entitled to maintenance under provisions of the Protection of Women from Domestic Violence Act (DV Act) even after divorce. It came after the court upheld a May 2021 order passed by a sessions court directing a man, a police officer, to pay maintenance of Rs 6,000 to his divorced wife per month.

The woman had sought maintenance under the DV Act which was rejected by the family court. She then approached the sessions court which in 2021 allowed her plea. The husband had challenged the decision saying that as they did not have any marital relationship anymore, he is not entitled to provide any relief.

The Court defined the term “domestic relationship” and ordered that The petitioner being husband was under statutory obligation to make provisions of maintenance of his wife. Since he failed to make such provision, the respondent/wife had no option but to file an application under the DV Act. Therefore, the husband was under obligation to provide relief to his wife.

Thus, the High Court has taken firm stance on the issue that, “that a woman cannot be allowed to deny the maintenance claim to the husband, taking advantage of his own wrong”.

Aditya Pratap is a lawyer and founder of Aditya Pratap Law Offices. He practices in the realm of real estate, corporate, and criminal law. His website is adityapratap.in and his media interviews can be accessed at http://www.youtube.com/@AdityaPratap/featured. Views expressed are personal.

This article has been assisted by Kush Shanker, a 2nd-year law student pursuing B.B.A.LL.B. (Hons.) from Maharashtra National Law University, Aurangabad.