Maintenance Of 2nd Wife Can’t Be Denied

family and matrimony law

Posted by Aditya Pratap Law Offices on 23 Feb 24

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Introduction

Section 125 of the Code of Criminal Procedure (CRPC) is widely cited and discussed. This provision stipulates that an individual with sufficient means to support themselves cannot refuse maintenance to their spouse, children, and parents if these dependents are unable to maintain themselves. The objective of this section is to ensure the well-being of the wife by furnishing her with necessary shelter and food following her separation from the husband.

The clause located in Chapter IX of the Code of Criminal Procedure is designed to safeguard the abandoned wife, parent, and minor children from utter destitution. It provides a straightforward, expeditious, and efficient limited relief. Section 125 of the Code of Criminal Procedure offers a prompt remedy to avert famine and social unrest, distinct from a husband’s civil liability. This provision constitutes a straightforward summary procedure, implementing a man’s fundamental responsibility to sustain his self-supporting wife, children, and elderly parents.

Need For Sufficient Means For Maintenance

The crucial stipulation is that an individual cannot be compelled to provide maintenance to another unless they possess ‘sufficient resources’ to support the claimant and deliberately neglect or refuse to do so. The burden of proof lies with the individual claiming insufficient means to provide support. In the case of HardevSingh v. State (1974), the Supreme Court ruled that if an individual is unable to meet the maintenance allowance due to being a monk, it becomes his responsibility to forsake the yellow robe and engage in labor.

Determining The Quantum Or Amount Of Support

• Inflation and an elevated standard of living contribute to the removal of the ceiling.

• The inability to maintain oneself pertains to the real and distinct income of the wife, not her potential income.

• Determining the amount should surpass the expenses for her basic necessities.

• The effective date should be from the application date, accounting for any delays.

• In addition to personal income, the income from the liable person’s corpus property should also be considered.

Complaints Filed Under Section 125 Of CRPC for Maintenance Of Second Wife

In a complaint filed under section 125 of CRPC by a second wife who entered into marriage under the impression that her husband had divorced his first wife, challenging the judgment and order dated April 21, 2022, Justice Rajesh S. Patil granted her petition for maintenance in a Bombay High Court. In a noteworthy decision, the Bombay High Court ruled that maintenance cannot be withheld from the second wife when the husband.

Another case of Badshah v. Urmila Badshah Godse and Ors, the petitioner and the respondent entered into matrimony following Hindu rituals. Subsequently, they commenced cohabitation. However, their domestic tranquillity was disrupted when a woman asserted herself as the petitioner’s wife one day.

Alleging mental torture, the petitioner forced the respondent to leave their marital residence. Subsequently, the respondent sought maintenance. The key legal query revolved around whether the respondent could claim maintenance under Section 125 of CRPC, considering the void nature of their marriage. The petitioner contended that Section 125 refers to a legally-wedded wife, and Section 5 of the Hindu Marriage Act of 1955 prohibits maintenance for a second wife during the continuation of the first marriage.

Nevertheless, the Supreme Court determined that the union between the respondent and petitioner was conducted in accordance with Hindu rituals. Notably, the petitioner had concealed his existing marriage from the respondent, constituting a false representation. Consequently, the court ruled that the wife is eligible for maintenance under Section 125 of the CRPC.

In The Event Of Non-Payment Of Maintenance

Under Section 125(3) of the Code, a warrant is required for the payment of maintenance when an application is submitted by the individual entitled to maintenance as per Section 125.

When such a warrant is issued to enforce the payment, it must be executed in a manner similar to levying fines. If the payment is not made in response to the warrant, the Magistrate has the authority to order imprisonment, with the duration not exceeding one month. Consequently, the duration of arrears, whether twelve months or any other period, becomes irrelevant.

Conclusion

Section 125 of the Code of Criminal Procedure (CRPC) safeguards the entitlement of the wife and parents to receive a fair amount of maintenance from their husbands or children, respectively. It is crucial to prevent any misuse of this provision.

The validity of marriage in Section 125 CRPC summary proceedings depends on evidence presented by the parties. The proof standard is less stringent than in Section 494 IPC trials. If the claimant demonstrates cohabitation resembling husband and wife, the court presumes legal wedlock. The party contesting marital status can rebut this presumption. Once the marriage procedure is acknowledged, further investigation into its completeness per Hindu rites in Section 125 CRPC proceedings is unnecessary.

Aditya Pratap is a lawyer and founder of Aditya Pratap Law Offices. He practices in the realm of real estate, corporate, and criminal law. His website is adityapratap.in and his media interviews can be accessed at http://www.youtube.com/@AdityaPratap/featured. Views expressed are personal.

This article has been assisted by Shubh Kumar, 5th year law student pursuing B.A.LL.B. from , Amity Law School, Lucknow.