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Is the second wife entitled to get maintenance as per the Hindu Law?

Legal status of second wife

The section 11 of the Hindu Marriage Act of 1955 states that any marriage between two Hindus is null and void if it contravenes any one of the conditions specified in the clauses (i), (iv) and (v) of section 5.

In the case of Bai Jivatbai Jethmal vs Milkiram Deepchand And Anr[1] the defendant had a spouse living at the time of second marriage. The court in this case held that the second marriage is declared null and void as per the section 11 of the Hindu Marriage Act of 1955 because the first marriage was not dissolved at the time of the second marriage.

The Section 13 of the Hindu Marriage Act of 1955 states that any marriage solemnized before or after the commencement of the act can be dissolved by the decree of divorce. The section also contains the grounds by which divorce decree can be granted.

However, in the case of a void marriage, the marriage in itself is void and therefore, there is no need to take the divorce decree as from the starting only the marriage is considered to be null and void as per law.

In the case of R. v. Dolman[2] the defendant who was the wife in this case had a spouse living at the time of second marriage. When the husband got to know that he filed for divorce under section 13 of the Hindu Marriage Act of 1955 on the grounds of cruelty. The court in this case held that the marriage itself is null and void hence there is no need to pass the decree of divorce.

In the case of Lily Thomas vs. Union of India[3], the husband converted to another religion in order to have a second wife even when the first marriage was not dissolved. The court in this case held that under the Hindu Marriage Act, a bigamous marriage is prohibited and has been constituted as an offence under Section 17 of the Act therefore any marriage solemnized by the husband during the subsistence of the first marriage would be an offence triable under Section 17 of the Hindu Marriage Act read with Section 494 IPC.

Maintenance of second wife under the Hindu Adoptions and Maintenance Act of 1956

The section 18 of the Hindu Adoption and Maintenance Act of 1956 states that a Hindu wife shall be entitled to be maintained by her husband during her life time. The subsection (2) (d) of the section 18 states that a Hindu wife is entitled to live separately from her husband without forfeiting her claim to maintenance if he has any other wife living.

Here the term any other wife living states that the act is not only considering the first wife but also the rights of the second wife can be protected.

It is agreed that according to Hindu personal Laws, bigamy or polygamy is treated as void. However, the second marriage is a common practice in our country. Also, the rights of the second wife are not properly protected under the law. Therefore, the main question which comes into picture is that is the second wife entitled to claim maintenance as per the Hindu Adoptions and Maintenance Act of 1956.

In the case of Narinder Pal Kaur Chawla v. Manjeet Singh Chawla[4] the husband did not disclose the fact that he is already married and he married the petitioner as per the ceremonies of the Hindu Marriage Act of 1955. The Delhi high court in this case held that the second wife, whose marriage is void has a right to be maintained under the section 18 of the Hindu Adoptions and Maintenance act of 1956 because she was not knowing the fact that the defendant is already married and if maintenance is not provided then this would encourage the defendant to defraud the second wife.

Also, in the case of Badshah v. Urmila Badshah Godse,[5] the court stated that the husband is bound to maintain the second wife and the wife is to be treated as a legally wedded wife because firstly, it was the husband who did not disclosed that he was already married and secondly, they both were living as husband and wife.

But in the case of Mangala Bhivaji Lad v/s Dhondiba Rambhau Aher[6] the court stated that as per sections 5 (i) and 11 of the Hindu Marriage Act, the second marriage is to be treated as void and therefore, the husband is not bound to maintain the second wife as she is not the legally wedded wife.

From the above cases it is observed that there is absence of the clear provision regarding the maintenance of the second wife as per the Hindu Adoptions and Maintenance Act of 1956 therefore, the claim for maintenance depends on the discretion of the judges.

Due to the Absence of clear law there is loophole in the Indian Law. These are easily exploited by the husbands to defend themselves. Therefore, there is a need to make strict and clear laws for second wife so that her rights are also protected.

If the petition would be filed under section 125 of CRPC then the second wife would definitely get the maintenance

In the case of Badshah v. Urmila Badshah Godse and Ors[7] the petitioner and the Respondent married as per the Hindu rites and customs. After the marriage, the couple stated living together. But one day a lady came and claimed her to be the wife of the petitioner.

The petitioner mentally tortured the respondent therefore, she left the matrimonial home. The respondent then claimed maintenance from the petitioner. The main question before the court was that is the respondent entitled to get maintenance as per section 125 of CRPC even when the marriage between them was void. However, the petitioner argued that the expression wife in Section 125 means only a legally-wedded wife and the section 5 of the Hindu Marriage Act of 1955, prohibits second marriage during the subsistence of the first marriage so respondent in this case cannot claim any maintenance.

However, the Supreme court in this case held that the marriage between the respondent and the petitioner was solemnized as per the Hindu rites and customs. In this case, the petitioner had kept the respondent ie. He did not disclose the fact that he is already married. Thus, a false representation was given to the respondent by the petitioner, therefore the wife is entitled to get maintenance as per the section 125 of CRPC.

Also, in the case of Dwarika Prasad Satpathy v. Bidyut Prava Dixit and Anr[8] the court stated that if the claimant proves that she and the respondent used to live together as husband and wife. Then in that case, the court can presume that they are legally wedded to each other.

Even in the case of, Chanmuniya v. Virendra Kumar Singh Kushwaha and Anr[9] The court interpreted the meaning of expression 'wife' and stated that a broad and expansive interpretation should be given to the term "wife" which would also include even those cases where man and woman are living for a long period of time as husband and wife.

In the case of In Rameshchandra Daga v. Rameshwari Daga[10] the court said that it is agreed that as per the Hindu Marriage Act of 1955, the second marriage is void and such marriages are illegal as per the provisions of the Act, but still they are not 'immoral' and hence a financially dependent woman cannot be denied maintenance on this ground.

Therefore, it is well established that under the section 125 of CRPC, the second wife is also entitled to get maintenance if she is not in a position to maintain herself.

According to me, the rights of the second wife who is unaware of the fact that the husband was already married should be protected by making amendment in the Hindu Adoptions and Maintenance Act of 1956. As of now there is no such clarity in the act which specifies that the right of the second wife is protected and she is entitled to get maintenance. Though, the section 18(2) (d) states that wife can get maintenance if the husband has any other wife living but by reading the section it is interpreted that only the first wife would get maintenance and not the second one.

Even the section 125 of CRPC is not talking about the rights of the second wife. As per the section 125 (1) (a), any person having sufficient means to maintain his wife who is unable to maintain herself, is bound to maintain her. In the explanation in clause (b) of section 125 the meaning of the word wife is given. It is stated that wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

Therefore, there is a need for amendment of section 125 of CRPC. This section should be widened and even the rights of the wife who is kept in dark by the husband because of the non- disclosure of the first marriage should also be protected.

It is agreed that in the Supreme Court Judgement in the case of Badshah v. Urmila Badshah Godse and Ors it was stated that under section 125 only the second wife should be entitled to get maintenance but that was the interpretation of the court. The section is nowhere stating nor it is clear that even the second wife should get maintenance. Therefore, the section 125 of CRPC should be amended for protecting the rights of the second wife.

End-Notes:
  1. 1961 CriLJ 469
  2. 949-1 All E R 813
  3. MANU/SC/0327/2000
  4. Civil 2606 of 2004
  5. (2014) 1 SCC 188.
  6. APPEAL NO. 117 OF 2006
  7. (2014) 1 SCC 188
  8. (1999) 7 SCC 675
  9. (2011) 1 SCC 141
  10. AIR 2005 SC 422

    Award Winning Article Is Written By: Ms.Sameeksha Vaishnava
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