Right to Maintenance of second wife in India

During the subsistence of the first marriage entering into a second marriage is illegal in India and the relationship arises from the same is held to be void. The law has been very clear on this point. Yet, second marriages are a common practice prevalent in Indian society. The apparent contrast between the law and social practice regarding second wives in India has led to a situation where they are not properly protected under the law. Many a times brushed under the carpet; of the overtly socially conscious society of India, the issue whether a woman whose marriage is void in the eyes of law should be entitled to the right of maintenance or not .



The general rule in India is a man can't remarry while any previous marriage is still in existence legally. Any marriage which is entered into by a man while he has a subsisting marriage with another woman, the subsequent marriage is not legally recognised.

However it is not an uncommon occurence nor is the second marriage being illegal enough of a deterrence to stop people from doing so. Even though the laws regarding eventual seperation in second marriages or child custody or maintenance etc, from second marriages are unclear, they are still taking place in the society. 

Many a times brushed under the carpet; of the overtly socially conscious society of India, the issue whether a woman whose marriage is void in the eyes of law; should be entitled to the right of maintenance or not deserves to be discussed for the sake of womens rights awareness.

During the subsistence of the first marriage entering into a second marriage is illegal in India and the relationship arises from the same is held to be void. The law has been very clear on this point. Yet, second marriages are a common practice prevalent in Indian society. The apparent contrast between the law and social practice regarding second wives in India has led to a situation where they are not properly protected under the law. 

Image result for second wife right to maintenancePicture Courtesy- time.com

The Issue of a second wife 

In this unregulated interface between second marriages still going strong and law not taking a strong stance; the person who suffers the most is – the second wife. Legally invalid marriage coupled with the tag of a “cheater” by the society is very stressful for women.

In this whole shame of the second marriage, the individual who endures the most is – the second wife. Legitimately invalid marriage combined with the tag of a "con artist" by the general public is extremely distressing for ladies. 

Laws covering aspects of a second marriage 

Criminal Law 

As per Section 494 of the IPC ; marrying again during lifetime of husband or wife, marries subsequently without legally divorcing or gaining a divorce decree by the competent court any, is liable to be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Exception-

  • This section does not extend to any person whose marriage with such husband or wife has been declare void by a Court of competent jurisdiction 
  • Any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years 
  • Such a person has not been heard of by the other spouse as being alive within that time

Provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.

Evidence Act 

Section 114 of The Indian Evidence Act provides for liberal acceptance of evidence to prove that the marriage was in existence (even though in the eyes of law it might be otherwise illicit). The Section in essence provides that in the presence of any probable facts, the person’s conduct and the happening of an event etc, can be used as evidence to prove the existence of marriage. 

Hindu Marriage Act ("HMA")

The law of maintenance has been given under S. 24 of the HMA. However, this law does not provide for maintenance to the wife of the second marriage but, in a catena of cases, the courts have given a wide interpretation to this section. Now, under S. 24 even a second wife can claim maintenance from her husband.

Similarly, under Section 25, HMA the provisions for permanent alimony has also been interpreted widely by the courts to protect the rights of the second wives. After the marriage is annulled, the second wife has the right to claim for maintenance.

Hindu Adoption And Maintenance Act ("HAMA")

HAMA provides that the second wife can claim maintenance from her husband even after she abandoned him when she comes to know that her husband has another wife living.The phrase 'any other wife living has been interpreted variously by the different High Courts. The issue has been with respect to whether the phrase intends "living together" or includes living seperately as well. 

In Satyanarayana v. Sseetheramama, the A.P. High Court held that 'wife living' meant existing or alive and not necessarily living with the husband. However, a subsequent decision of the Madras High Court on the other hand in Annamalai Mudaliar v Perunayee Ammal, said that 'wife living' necessarily meant living with the husband which made the scope of claiming maintenance by a second wife next to impossible. This view has been overlooked in recent times and now the law has a fresh perspective which includes a wider interpretation than the old cases. 

The Bombay High Court, in Mani Bai v. Mukundrao, held that under Section 18 of HAMA, the second wife can also claim a separate residence and maintenance under this Act.

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Picture Courtesy- factly

Law declaring Second Marriages Illegal

Under Section 5(i) of Hindu Marriage Act, 1956, One of the main conditions provided for a valid Hindu marriage is that neither party should have a spouse living at the time of marriage. It is from this starting point where second marriages are declared null and void ab initio for Hindus.

The laws are clear and are reasonably stringent in not recognizing second marriages for the sake of the first family’s sentiments and respect as well as to keep a social order in place which would otherwise become anarchical if one could marry legally while already being married to someone else.

Nevertheless the occurrences of second marriages are common in India. In such a scenario the biggest issue is whether a married woman, whose marriage is void (for the reason of being a second marriage not recognized by law), is entitled to maintenance or not.

Women need protection from threadbare legal framework

Personal laws relating to marriage do not allow bigamy or polygamy except for Muslim law. Such a marriage is treated as void.

In Hindu Family Law jurisprudence, Hindu wives in India have never been adequately protected under the law when it comes to second marriages. Whereas, in Muslim law, although polygamy is permitted, the issue that Muslim women have had to face was regarding the claim to alimony. Hence women from all communities are generally legally exposed if they choose to consummate a marriage with a man who is already married whether known or not. 

Concept of Maintenance in Hindu Law- Obligation on Husband

Hindu Adoption and Maintenance Act, 1956, as per this Act, 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. 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.

Image result for second wife right to maintenancePicture Courtesy- hindustantimes

Maintenance for second wife- Depends on the circumstances of the case; no fixed law yet

The issue of right to maintenance to the second wife has been faced by various High Courts as well as the Supreme Court, and the courts have given different views depending upon the facts and circumstances of each case, thus giving diverse interpretation to the expression “wife” under Section 125 of the Code of Criminal Procedure.

The following are handpicked situations and cases where different Courts in India have rightfully applied their judicial powers to provide relief to a woman trapped in a situation of claiming maintenance in a marriage which is not even recognized by law-

Madhya Pradesh High Court (1991) –

Family Courts do have the power/ jurisdiction to regulate the conditions (maintenance being one of them) of an invalid or bigamous marriage

In the case of Laxmi Bai v. Ayodhya Prasad the Madhya Pradesh High Court presented the view that the expressions ‘wife’ and ‘husband’ should not be construed as only legally wedded wife and husband, rather they should be taken to mean ‘a person claiming to be a wife or a husband’. Thus, it held that the matrimonial courts have the power to regulate the relationship between the parties, and these powers should also be exercised by the courts in cases of invalid or bigamous marriages.

Hence the trend as seen has been from Strict interpretations to liberal and logical interpretation of who is a ‘wife’ as per Hindu Marriage Act

 

Treatment of woman as a wife in society; can be a valid ground for maintenance-

The general rule of invalidity of second marriage must not be misused by a man to defraud a woman in any way.

A wife can claim maintenance from her husband irrespective of her religion under Section 125, CrPC. To prove the factum of marriage between the husband and the wife, one of the fundamental aspects seen by law is whether the husband has treated the woman as his wife in the society.

Strict proof of marriage need not be a pre-condition for maintenance. Any proof like joint bank account, any police complaint, voters ID given wherein the husband referred to the second wife as his wife, may be used to prove her status as a wife. With regard to the matter of defrauding her by not mentioning his previous marriage, the appellant can sue the husband for committing bigamy under the law provided in the Indian Penal Code

Hence various allotted government documents or authorized/ registered documents where the relationship status is given can be used to prove a woman’s status as a wife.

In Samudurai v. Rajlakshmi, it was held that when the wife comes to the court claiming maintenance, the husband should not be allowed to take advantage of his own wrong. In cases where the Court can see by evidence adduced before it, the husband is trying to allege that there is a first marriage subsisting and thereby, hide behind the law of invalidity of second marriage between him and the wife claiming maintenance is a nullity. The same should not be allowed and the Court should provide maintenance in the genuine cases like these.

In the case of Rangnath Parmeshwar v. Pandirao Mali, it was held that if two persons are living as a married couple, then even when there is no prove to that effect, the marriage between them is presumed to be valid.

When the Parties have lived together for ‘considerable time’

In Mallika and Anr v. P Kulandi , the Madras High Court held that is sufficient if evidence is available to the effect that the parties lived together for 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.

Apex Court has reiterated with respect to time of living together as a married couple whether illicit or not, the general rule of invalidity of second marriage must not be misused by a man to defraud a woman in any way. In the case of Chanmuniya v. Virendra Kumar Singh Kushwaha & Anr., (2011) If a man and woman have been living together for a considerable period of time, even if they are illicitly married, then such woman is entitled to claim maintenance.

 

Where wife can prove she was unaware of First Marriage –

Division Bench of Apex Court has ruled in favour of second wife (2013), who is unaware of any subsisting marriage of the man/ husbamd.

Apex Court Observed - "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 bench consisting of Justice Ranjana Prakash Desai and Justice AK Sikri,in the case titled “Badshah Versus Sou.Urmila Badshah Godse & Anr” in their landmark judgment have 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 being 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 Apex Court observed-

The Supreme Court said that the landmark judgement would be applicable in cases where the spouse from 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 vs Savita Ben would not be applicable if the second wife knows about the existence of the first marriage. 

Remedies for second Wife

The HMA provides the right to second wife to get the marriage annulled. Also, the second wife has the right to ask for the divorce under S. 13(1) of HMA. Under S. 13(1) of HMA, a second wife can ask for a divorce in case she finds that her husband has been already married.

Section 25- Hindu Marriage Act                                                                                                 

Permanent Alimony on getting the illicit marriage annulled can be given to second wife

As per section 25, of The Hindu Marriage Act the provisions for permanent alimony have also been interpreted widely by the courts to protect the rights of the second wives.

After the declaration of the nullity of the marriage, the second wife can claim maintenance under section 25, Hindu Marriage Act.

Relief via Interim Mainatenance

It was held in Rajesh Bai v. Shantabai, that a woman whose marriage is void because of the existence of another wife is entitled to maintenance under this Section. The second wife can claim interim maintenance under Section 20 of the Hindu Adoption and Maintenance Act, 1956 (HAMA).

In Kulwant Kaur alias Preeti v. Prem Nath, it was also said 'no sane lady would surrender herself unless she treats her male companian as her husband- whether the marriage is proved or not that is the point to be determined by the trial Court itself- but keeping in view the fact that the petitioner cohabited with the respondent, interim maintenance under Section 20, HAMA is allowed to her'.