By Garima, Institute of Law, Nirma University, Gujarat
Editor’s Note: 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.
The issue pertinent to this paper is whether a woman whose marriage is void is entitled to the right of maintenance or not. Further, Muslim women have been barred from claiming maintenance from their husbands once they are divorced. In this regard, light is thrown upon the current scenario determine the status of a second wife under Hindu law and the rights of a divorced wife under Muslim law.
Personal laws relating to marriage do not allow bigamy or polygamy except for Muslim law. Such a marriage is treated as void. The law has made this point quite clear. Nevertheless, second marriage is a common practice in our Indian society. As a result of the aforesaid contrast between the law and social practice, second Hindu wives in India are not properly protected under the law. Whereas, in Muslim law, where polygamy is permitted, the issue that Muslim women have had to face was regarding the claim to alimony. Thus, the issue which the present study focuses on is whether a married woman, whose marriage is void, is entitled to maintenance or not. And it also seeks to determine the position of Muslim women in the current scenario as compared to the situation before 1986. The paper presents a look into the present legal regime as well as studies various judicial decisions in order to find out the status of the second Hindu wife and a divorced Muslim wife.
Maintenance Under Hindu Law
One of the conditions provided for a valid Hindu marriage is that neither party should have a spouse living at the time of marriage.[i] Hence, second marriages are declared null and void ab initio.[ii]
As per the Hindu Adoption and Maintenance Act, 1956, a Hindu male is legally obligated to maintain his spouse. Maintenance includes provision for food, residence, clothing, education and medical attendance and treatment.[iii] 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.[iv] In this capacity, “wife” also includes a divorced wife and she can claim maintenance from the person she was married to.[v] 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.
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. Discussed below are a few cases where courts faced the aforementioned issue.
The issue was first discussed in Narayanaswami v. Padmanabhan[vi] where the Madras High Court did not take a liberal approach and held that, under Section 25 of the Hindu Marriage Act 1955, only a wife, who is legally wedded or whose marriage is not void or null, can claim maintenance from her husband. Meaning thereby, that a woman, whose marriage is in contravention with Section 5(i) of the Hindu Marriage Act 1955, is not entitled to claim maintenance under Section 25 of the act.
Whereas, in the case of Laxmi Bai v. Ayodhya Prasad[vii] 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.
A similar view was put forth by other high courts in other cases like Govindrao Ranoji v. Ayodhya Prasad[viii], Rajeshbhai v. Shantabai[ix] and Mallika v. P. Kundanlal.[x] However, in the case of Bhausaheh v. Leelahai[xi] the Bombay High Court ruled that Section 25, though it implies the welfare of a married woman should not have any unnecessary inclination such that a woman, whose marriage is void, can be entitled to claim maintenance. The court also opined that it will lead to a bizarre situation if a uniform meaning of the expression ‘wife’ is not ascertained for the purpose of providing maintenance under Section 125 of Criminal Procedure Code, 1973.
There are some cases where an innocent woman is conned into marrying a previously married man and the wife has to suffer, since she being an illegitimate wife, cannot claim maintenance. The Supreme Court in Bakulbai v. Gangaram[xii] and Yamunabai v. Anantrao[xiii] decided in keeping with settled law and held that, a woman, who stands as a second wife to a man who already has a living spouse at the time of the second marriage is not sanctioned the right to maintenance. Even if the wife is unaware of the subsistence of the previous marriage, she has no claim. For the purpose of maintenance under Section 125 of CrPC, it has to be shown that the couple has been living as husband and wife. Then the court presumes them to be a legally wedded couple. This can be disproved by producing sufficient evidence that the marriage is not valid but void. Thus, in such situations no relief can be granted under Section 125.
In some cases the couple continues to live as husband and wife for many years. In such cases, courts have adopted a liberal, and not a conservative approach towards interpreting the word ‘wife’ and have directed the husband to grant maintenance to his wife in such situations. In Narinder Pal Kaur Chawla v. Manjeet Singh Chawla,[xiv] the husband did not disclose the fact of his previous marriage to his wife and subsequently married the appellant and they remained as husband and wife for a substantive period of time. The Delhi High Court opined that a second wife, whose marriage is illegitimate, has a right to be maintained under Section 18 of the Hindu Adoptions and Maintenance Act 1956 because this is such a case where, if maintenance is not provided to the wife, it would act as an encouragement to the respondent in defrauding the second wife.
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. 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.[xv]
Rule 21of the Central Civil Services (Conduct) Rules, bars a government employee from entering into a second marriage when his or her first spouse is still alive. In a decided case, the second wife filed a petition.[xvi] Both the husband and the first wife had been dead. The second wife filed an application for a family pension, but the plea was rejected by the government. She approached the high court where her application was dismissed on the grounds that a second wife is not entitled to a claim over family pension of a government employee.[xvii]
In Ramesh Chandra v. V R. Daga[xviii] the Supreme Court has discussed the morality of matrimonial relationships. The honorable court has observed that, though a bigamous marriage is considered illegal and cannot attract the provisions of granting maintenance to the wife, it cannot be said to be immoral so as to deny the right of maintenance to the wife. Also, in the case of Vidyadhari v. Sukharana Baz[xix] where a wife was duped into an invalid marriage, the court has granted partial relief to her.
Maintenance Under Muslim Law
The concept of maintenance under Muslim personal law is distinct and shows a substantial contrast to the concepts which are reflected under the personal laws of other communities in India. Maintenance, under the Muslim law, is known as ‘nafqah‘. This includes food, clothing and lodging. A woman, whose marriage is performed as per Muslim law and who has attained an age at which she can render conjugal rights to her husband is entitled to receive maintenance. If the marriage is void or irregular, except where there were not sufficient witnesses, the Muslim husband is not obliged to pay any amount of maintenance to his wife.
Under Islamic or Muslim law, men are allowed to practice polygamy, meaning they have a right to marry more than one wife at one point in time, though the upper limit is four. Unlike Hindu law, such marriage, while the first marriage subsists is not declared void. Hence, a second wife is entitled to all the rights as the first. The wife of a Muslim man, whether she is the first wife or the second, has the right to claim maintenance from her husband. From the time she is old enough for matrimonial intercourse, the Muslim husband’s duty to maintain her arises. However, the death of the husband puts an end to the right of the wife to claim maintenance. Prior to Mohammad Ahmed Khan v. Shah Bano Begum,[xx] a Muslim wife was not entitled to claim maintenance after the completion of her iddat period. Shah Bano was a 62-year-old Muslim woman. Her husband divorced her and she filed a criminal suit in the Supreme Court of India. She claimed maintenance and the same was granted in her favor. It was held that, a Muslim wife is entitled to the right to claim maintenance under Section 125 of Criminal Procedure Code even after the expiry of iddat period as long as she is not remarried and she is not able to sustain herself from the dower received at the time of divorce. Yet, the Indian Parliament reversed the judgment, and consequently, she was denied the right to claim alimony. The judgment raised controversies among Muslims since the judgment was in conflict with Islamic Law. With this case the Muslim Women (Protection of Rights on Divorce) Act, 1986 was passed, which diluted the judgment of the Supreme Court and denied the right to claim maintenance to a Muslim woman from her former husband. According to Section 3 of this act:
- A Muslim woman is entitled to be maintained only within her iddat
- Where she gives birth to children, whether before or after divorce, she is entitled to maintenance for a period of 2 years from the date of birth of such children.
- If her husband fails to provide for her maintenance, she has a right to claim it from the relatives who are entitled to inherit her property after her death.
It is quite an irony that the Act has been named the Muslim Woman (Protection of Rights on Divorce) Act as at the same time it took away whatever rights have been guaranteed to Muslim divorced women by the holy Quran.
But, in Daniel Latifi v. Union of India,[xxi] the court upheld the judgment of Shah Bano case. It was done to give regard to the constitutional validity of Section 3(1)(a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The statutory provision should be given interpretation in such a manner that it does not stand in conflict with Articles 14, 15 and 21 of the Indian Constitution. Thus, a Muslim husband had a duty to make reasonable provision for the maintenance of the divorced wife even after the completion of her iddat period.
In Shabana Bano v. Imran Khan,[xxii] it was held that Section 125 of Criminal Procedure Code read with the Muslim Women (Protection of Rights on Divorce) Act, 1986, stated that a Muslim woman should be designated to demand alimony from her husband even after she completes her iddat but only until the time she remarries.
Suggestions And Conclusion
From the above analysis of judgments pronounced by various High Courts and the Supreme Court, it is evident that conflicting decisions have been given on the hot issue of granting maintenance to the second wife whose marriage as per Hindu law is void. In particular, in a recent case of Narinder Pal Kaur Chawla (2008), the Delhi High Court gave a liberal interpretation to the expression ‘wife’, subsequently granting the second wife the right to claim maintenance. But the law, till date still recognizes the second marriage, while the first marriage subsists, as void and thus, the second wife is not entitled to any of the rights of a legitimate wife including that of claiming maintenance.
Section 125 of Criminal Procedure Code recognizes the illegitimate child entitled to maintenance but an illegitimate wife has no right to claim maintenance. It is unfortunate for women who, without any knowledge of the subsistence of the first marriage of the husband, get married, enter into the wedlock and are barred from claiming the rights that a legally wedded wife gets. It is apparent from Section 125 that only a woman, who is a legally wedded wife or one who is legally separated and is not remarried or who has been divorced from her husband, can claim maintenance. There have been numerous cases where the husband misrepresents to the woman that he is unmarried or has been divorced and when the woman finds out that she was defrauded into the second marriage by false representation, she is not even entitled to claim maintenance since the marriage has been solemnized against Section 5(i) of the Hindu Marriage Act 1955. Her claim for maintenance under Section 125 fails because she is not legally married. This is not the position of women in Muslim law, since, as per Muslim law, Muslim men can have more than one wife at a time, though the maximum number is four. Only the legislature can acknowledge and rectify the issue at hand.
Even the illegitimate child has a right to be maintained. In this regard, it is logical to say that his mother, though she has not been legally married, should also be entitled to claim maintenance. This should come as an amendment which not only will guard the victim from false representations, but also would discourage a man from making such misrepresentation about his marital status.[xxiii]
Under Muslim law, an application under Section 125 of CrPC was subject to the requirement of statutes and the religion of a woman. When a deserted or divorced Muslim wife approaches the court to file an application under Section 125 of CrPC to get maintenance, she is prohibited by virtue of Muslim Law. Usually the husband pleads that he has already divorced his wife and thus, he is not liable to pay her maintenance. This argument became substantial after the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986.
Fortunately, the judiciary has decisively shown benevolence towards Muslim women and these women have evidently been empowered, especially divorced women whose position was even worse. The ruling given by the Supreme Court in the Daniel Latifi case has settled the law in favor of the divorced Muslim wife and has conferred on them, a constitutional right to livelihood by way of granting them a claim to alimony. It has become a need of the hour to do away with laws related to claiming maintenance which are based on religion. Also, laws which hamper the application of general laws with reference to the basic livelihood of a divorced woman as is assured under Article 21 of the Indian Constitution should be struck down. So, keeping in mind the constitutional provisions, the State must try to implement a uniform civil code under Article 44 of the Indian Constitution in some measure with respect to the essential and basic aspects of personal laws.
– Edited By Subhashini Narayanan
[i] Section 5(i) of Hindu Marriage Act, 1956
[ii] Section 11, Hindu Marriage Act, 1956
[iii] Section 3(b)(i) of the Hindu Adoptions and Maintenance Act, 1956
[iv] Section 125 of Criminal Procedure Code, 1973
[v] Rohtash Singh v. Ramendri, 2000 Cr. L. J. 1498 (SC)
[vi] AIR 1966 Mad. 394
[vii] AIR 1991 MP 47
[viii] AIR 1976 Bom 433
[ix] AIR 1982 Bom
[x] Cri. LJ 2000, 142 (Mad)
[xi] AIR 2004 Boom 283
[xii] 1988(1) SCALE 188
[xiii] AIR 1988 SC 644
[xiv] AIR 2008 Del 7
[xv] Chanmuniya v. Virendra Kumar Singh Kushwaha & Anr., (2011) 1 SCC 141
[xvi] Shihu Thomas, 2nd Wife has no claim on family pension-HC: TOI, 3.3 2008, pg. 1
[xvii] Rameshwari Devi v. State of Bihar, AIR 2000 735
[xviii] AIR 2005 p.441
[xix] Civil appeal no. 575 of 2008.
[xx] AIR 1985 SC 945
[xxi] (2001) SCC 740
[xxii] AIR 2010 SC 740
[xxiii] 178th Report, Law Commission of India