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“A second wife whose marriage is void on account of survival of the first marriage would not be a legally wedded wife, and therefore would not be entitled to maintenance under this provision,” the Delhi High Court bench of Justice Subramonium Prasad has held in a recent decision.

The Bench has further held that a “wife” under Section 125 Code of Criminal Procedure (CrPC) includes a divorced woman who has not remarried.

The petitioner had filed this suit against a trial court decision which requires him to pay Rs. 4,200 as maintenance per month to his second wife, who filed a suit seeking maintenance under Section 125 of CrPC.

The man contended that he and the lady in question were already married to their respective spouses at the time of the alleged marriage between the two parties, and that she could not substantiate her divorce to her first husband.

The lady, i.e. the second wife, however, submitted that the he had concealed the fact that his first marriage was subsisting and that he was also aware that the first husband of the wife had deserted her and got the customary divorce.

She was treated as a legally wedded wife for a span of ten years. 

Thus taking note of the peculiar facts observed that since both the parties have living spouses, they cannot be presumed to be legally married.

The Court further stated that for the purpose of statutory provisions a “wife” under Section 125 CrPC includes a divorced woman who has not remarried and even if a woman does not have the legal status of a wife, she is brought within the inclusive definition of “wife” in order to maintain consistency with the object of the statutory provision.

“However, a second wife whose marriage is void on account of survival of the first marriage would not be a legally wedded wife, and therefore would not be entitled to maintenance under this provision,” the Court added.

The lady had relied upon the case of Chanmuniya v. Virender Kumar Singh Kushwaha wherein both the parties were unmarried and their cohabitation as husband and wife led to the presumption of them being legally married.

However, the Delhi High Court observed that since both the man and the woman are already married to their respective spouses and their marriages are subsisting, the precedent does not apply.

While ruling so, the court observed, “This Court finds it unfortunate that many women, specially those belonging to the poorer strata of society, are routinely exploited in this manner, and that legal loopholes allow the offending parties to slip away unscathed. In spite of the social justice factor embedded in Section 125 CrPC., the objective of the provision is defeated as it fails to arrest the exploitation which it seeks to curb."

Thus the Court allowed the petition and set aside the Trial Court decision.

Cause Title: Sunder Lal Saini vs Meena Saini