Husband Can't Deny Maintenance U/S 125 CrPC To Second Wife When He Suppressed Subsistence Of First Marriage: Gauhati High Court

While dismissing the application made by the husband (petitioner herein) to quash the order of maintenance passed by the lower Court, a Single Judge Bench of Justice Robin Phukan observed,

"Section 125 Cr.P.C. is a measure of social justice, enacted to protect the vulnerable section of the society like women, children and infirm parents and it is within the scope of Articles 15(3) and 39 of the Constitution of India. The object of this section is not to punish for the past, but to prevent the vulnerable section of the society, who are unable to maintain themselves, so that they are not left beggared and destitute on the scrap heap of the society, and thereby driven to a life of vagrancy, immorality and crime for their sustenance, by compelling those who are capable to support to perform their moral obligation."

Brief Factual Background:

The petitioner got married to the respondent as per Hindu rites and rituals. After the marriage, the petitioner took the respondent to the house of his sister. After a month, they shifted to a rented house and lived there as husband and wife. After two months, the petitioner took the respondent to his own house, reaching where the respondent got surprised to see the petitioner's first wife. Before the marriage, the petitioner had shown some fake documents to the respondent, whereby he claimed that he had already divorced his first wife.

Finding no alternative, the respondent tried to adjust herself there and maintained the conjugal life. However, after some days, the petitioner demanded money from her and even tried to kill her. She escaped that attempt and conveyed the incident to her family. The family tried to settle the matter amicably and the petitioner again returned to continue her marital life. However, after a few days again she was assaulted by the petitioner and he drove her out of the matrimonial home.

Being aggrieved by these incidents and having no other means for sustenance, the respondent filed an application under Section 125, Cr.P.C. for maintenance. The learned S.D.J.M. granted maintenance to her by directing the petitioner to pay the amount. The petitioner went on revision before the Additional Sessions Judge against the said order, who also dismissed the revision upholding the lower Court order. Hence, he filed an application under Section 482, Cr.P.C. before the High Court against such order.

Contentions of the Petitioner:

The petitioner contended that the learned Courts below had committed grave error in interpreting the word 'wife' in Section 125 of the Cr.P.C, and wrongly granted maintenance in favour of the respondent without there being any valid marriage between the parties.

It was further submitted that the respondent and the petitioner belong to the same village and they know each other since childhood and as such she married the petitioner knowing well about subsistence of his first marriage, and therefore, the impugned judgments and orders suffer from gross illegality and impropriety and accordingly, it was contended to set them aside by allowing the petition. He referred the judgment of the Apex Court in Savitaben Somanhai Bhatiya vs. State of Gujarat and Ors., (2005) 3 SCC 636, to substantiate his submission.

Contentions of the Respondent:

It was contended on behalf of the respondent that no irregularity or illegality was committed by the learned Courts below in granting maintenance to the respondent. It was submitted that the petitioner got married to the respondent by suppressing his first marriage and now he cannot take the benefit of subsistence of his first marriage with his former wife. It is further argued that the petitioner misrepresented the respondent that he had divorced his first wife and shown some documents and as such, the question of non-fulfilment of Section 5(1) of the Hindu Marriage Act did not arise.

The counsel relied on Badshah v. Urmila Badshah Godse & Anr., (2014) 1 SCC 188, to submit that the respondent should be treated as legally wedded wife because the petitioner duped the respondent by suppressing his earlier marriage. Thus, the petitioner cannot deny maintenance to the respondent.

Observations of the Court:

The Court placed reliance upon Veerappa v. Michael, AIR 1963 SC 933, wherein the Supreme Court has held that once a marriage in fact is proved to have taken place, the presumption arising there from in favour of a marriage in law would operate with all its amplitude and plenitude to entitle the wife of such a marriage to entertain an application under Section 125 of the Cr.P.C., unless, on the materials on record, the marriage in question appears to be stamped on its face with indisputable illegality and the invalidity thereof stares at the face.

It also relied on Chanmunia v. Virendra Kumar Singh Kushwaha & Anr., (2011) 1 SCC 141, where it was held that if man and woman have been living together for a long time even without a valid marriage, as in that case, term of valid marriage entitling such a woman to maintenance should be drawn and a woman in such a case should be entitled to maintain application under Section 125, Cr.P.C.

The Court held that in the instant case, solemnisation of marriage between both the parties and subsequent living together as husband and wife for about six months stood established and the said facts were admitted by the petitioner also. And as such, presumption arising therefrom in favour of the marriage in law will operate with all its amplitude and plenitude to entitle the wife to such a marriage to entertain an application under section 125 Cr.P.C.

It also discarded the argument that the respondent (second wife) and the petitioner (husband) belong to the same village, they knew each other since childhood and as such she had married with the petitioner knowing well about subsistence of his first marriage.

Thus, there was nothing on record to dislodge or over-throw such a presumption. The petitioner had also not challenged the validity of his marriage with the petitioner. Therefore, the Court held that the learned courts below had rightly arrived at the conclusion that the respondent is the wife of the petitioner. In the given facts and circumstances, the court was of the considered opinion that at least for the purpose of claiming maintenance under section 125 Cr.P.C., the respondent is entitled to claim to be the wife of the petitioner. Accordingly, the petition was dismissed.

Case Name: Tarun Chandra Das v. Bhanjana Kalita

Case No.: Crl.Pet./589/2021

Date of Judgment: 22 February 2022

Coram: Justice Robin Phukan

Citation: 2022 LiveLaw (Gau) 17