NEW DELHI: Giving primacy to social justice objective of Section 125 of the Criminal Procedure Code, the Supreme Court has said that a woman is entitled to claim maintenance under it from her second husband, even though her first marriage is alleged to be legally subsisting.
A bench of Justices B V Nagarathna and Satish Chandra Sharma said it must be borne in mind that the right to maintenance under Section 125 CrPC is not a benefit received by a wife but rather a legal and moral duty owed by the husband.
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The court allowed a plea by a woman against the High Court's order of 2017, which held that she could not be considered the legal wife of the respondent man as her first marriage with another man was still subsisting. The High Court, however, allowed the plea for such maintenance to a daughter born to the couple.
The woman's counsel said the appellant and the respondent man were de facto living as a married couple and raising a child together, the benefit of maintenance should be extended to her. He also submitted the factum of the first marriage was not concealed from the second husband.
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The man, on the contrary, contended as appellant-woman has a legally subsisting marriage with her first husband, she cannot be considered his wife and claim maintenance under Section 125 CrPC.
In its judgment, the bench said, "In the opinion of this court, when the social justice objective of maintenance under Section 125 CrPC is considered against the particular facts and circumstances of this case, we cannot, in good conscience, deny maintenance to appellant number one."
The court also pointed out, it is settled law that social welfare provisions must be subjected to an expansive and beneficial construction.
In the case, the bench felt, an alternate interpretation would not only explicitly defeat the purpose of the provision by permitting vagrancy and destitution, but would also give legal sanction to the actions of the respondent-man in knowingly entering into a marriage with appellant-woman, availing its privileges but escaping its consequent duties and obligations.
"The only conceivable mischief that could arise in permitting a beneficial interpretation is that the appellant-woman could claim dual maintenance--however, that is not the case under the present facts," the bench added.
The court relied upon the recent landmark judgement of the Supreme Court in 'Mohd Abdul Samad Vs State of Telangana and Another' (2024) which has shed greater light on this duty upon the husband in the Indian context.
"We are aware that this court has previously denied maintenance in cases of subsisting marriages. However, a plea of separation from the first marriage was not made in those cases and hence, they are factually distinguishable," the bench said.
In the case, the woman got married in 1999 in Hyderabad. She gave birth to a male child in 2000. On return from the USA in 2005, the couple began living separately.
On November 25, 2011, by a memorandum of understanding, the couple dissolved their marriage.
Two days after on November 27, 2011, the woman got married with her neighbour, the respondent man here.
However, within months, the respondent man approached the Family Court seeking dissolution of the marriage. The court declared it null and void on February 1, 2006.
Within days, on February 14, 2006, the woman got remarried with the respondent man. A daughter was born to the couple on January 28, 2008.
Once again differences again arose between them and the woman lodged an FIR against the respondent man and his family members for dowry harassment. She approached the family court for maintenance for herself and the daughter. The family court in 2012 granted her and the daughter a monthly sum of Rs 3,500 and Rs 5000 respectively. On appeal by the respondent man, the High Court set aside the maintenance order for her.
The court noted the family court made a factual finding that the woman married the respondent and that finding is not disputed by the respondent (second husband).
"Instead, the respondent seeks to defeat the right to maintenance by claiming that his marriage to appellant no. 1 is void ab initio as her first marriage is still subsisting," the bench said.
The court noted that it is not the case of the second husband that the truth was concealed from him, and, in fact, the family court made a specific finding that the second husband was fully aware of the first marriage of the woman.
The woman placed before the court a memorandum of understanding (MoU) of separation with her first husband.
"While this is not a legal decree of divorce, it also emerges from this document and other evidence that the parties have dissolved their ties, they have been living separately and appellant No 1 (woman) is not deriving maintenance from her first husband," the bench noted.
The bench said barring the absence of a legal decree, the woman is de facto separated from her first husband and is not deriving any rights and entitlements as a consequence of that marriage.
