The Bombay High Court has held that a woman whose marriage is declared null and void because her earlier marriage was subsisting, and who had concealed that fact from the man, is not entitled to claim maintenance as a “wife” under Section 125 CrPC. The Court held that the expression “wife” continues to mean a legally wedded wife in such circumstances, and the broader equitable approach would not apply where the relationship was short-lived and was tainted by concealment and deceit.
The Court asserted that a woman whose marriage is void under Section 11 of the Hindu Marriage Act for breach of Section 5(i) does not fall within the expression “wife” under Section 125 CrPC., particularly where the earlier marriage was concealed from the respondent; however, maintenance to the child was left undisturbed.
A Single Judge Bench of Justice M.M. Sathaye noted at the outset that the settled position flowing from Yamunabai Anantrao Adhav vs. Anantrao Shivram Adhav [1988 1 SCC 530], is that the term “wife” in Section 125(1) CrPC means only a legally wedded wife, and a woman whose marriage is void because of contravention of Section 5(i) of the Hindu Marriage Act is not entitled to maintenance under that provision. The Court treated this as the controlling legal position for deciding the woman’s claim.
While examining the petitioner’s reliance on Chanmuniya vs. Virendra Kumar Singh Kushwaha [(2011) 1 SCC 141], the Court observed that the Supreme Court in that case had indeed expressed an inclination to adopt a broader interpretation of “wife” in light of the social object of Section 125 CrPC and even noted divergence in judicial opinion. However, the High Court pointed out that the larger-bench reference in Chanmuniya had not been shown to have resulted in any conclusive ruling and that the matter was later dismissed for non-prosecution.
The Court then recorded that, in the present case, it was an admitted position that the woman was not the legally wedded wife of the respondent because the marriage stood annulled under Section 11 of the Hindu Marriage Act for breach of Section 5(i). It also noted that the husband was not disputing the maintenance payable to the child. Referring to Vimala (K.) vs. Veeraswamy (K.) [(1991) 2 SCC 375], the Court reiterated that a second wife whose marriage is void on account of subsistence of the first marriage is not entitled to maintenance under Section 125 CrPC.
The High Court also found that the facts did not support any case of a long-standing live-in relationship that could possibly attract the broader reasoning discussed in Chanmuniya vs. Virendra Kumar Singh Kushwaha [(2011) 1 SCC 141]. It recorded that the parties had cohabited only from Jan 28, 2009 to May 07, 2009, that is, a little over three months, and had been litigating thereafter. In the Court’s view, that duration could not be treated as living together as husband and wife for a reasonably long period so as to raise any presumption in favour of maintenance.
Briefly, a was petition filed by a woman and her minor son challenging a revisional order which had denied maintenance to the woman but continued maintenance of Rs. 1,000 per month for the child under Section 125 CrPC. The original Magistrate’s order dated Nov 19, 2015 had granted Rs. 2,000 per month to the woman and Rs. 1,000 per month to the child, but the Additional Sessions Judge in revision set aside the maintenance granted to the woman and retained only the child’s maintenance.
The woman’s case was that her marriage with the respondent was solemnised on Jan 28, 2009, a son was born from the wedlock on Nov 04, 2009, and after initial cordial treatment she was subjected to harassment, assault, and demands for money for purchase of a truck. She alleged that she was forcibly left at her parental home and that the respondent never maintained either her or the child, despite allegedly having land and a godown as sources of income. On that basis, maintenance of Rs. 15,000 per month each was claimed.
The husband admitted the marriage but denied the paternity of the child and took the stand that the woman had earlier married another man and had not obtained a divorce before marrying him. According to him, this fact was concealed, making the later marriage illegal. He also claimed that she left the matrimonial home on her own and refused to return. The husband relied on the annulment decree passed under Section 11 of the Hindu Marriage Act, 1955, which declared the marriage null and void because the woman was already married, and that she did not fall within the term “wife” under Section 125 CrPC.
