Opinion Based Blog

Maintenance rights of the Second Wife : An Analysis


Author: Ritika Guj, 1st year student at Dr. B.R Ambedkar National Law University.

Introduction

What if one day you wake up and realize that the identity you have been living with, is nothing but just a big lie? This is something that a woman faces when she comes to know that she is somebody’s second wife, someone who even though being a missus is a miss. The practice of polygamy is not something new, it has been there for a long time. It has even been talked about in the Manusmriti and it was justified during the ancient times, such as during Mauryan or Mughal or Rajput time polygamy existed due to the advantages related with it yet then, at that point, ladies were more regarded. After the introduction of the Hindu Marriage Act 1955, the act of polygamy was annulled for everyone other than Muslims and Hindus in West Coast Goa yet, there are a few people who disregard the law and get into a polygamous relationship. At times, it happens that the man misleads or distorts his conjugal status or the skill of his accomplice to the next lady, to frame another relationship. The aim of this article is to discuss the maintenance rights that a second wife could claim.

Laws in favor of the second wife

Maintenance for Second Wife in India 

Hindu Marriage Act, 1955[1]

Hindu Marriage Act expressed that the fundamental condition to have a marriage is that neither one nor the other mates should as of now be in a conjugal connection under section 11 of Hindu Marriage Act which expresses, “Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto 1[against the other party], be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of section 5. 1. Ins. by s. 5, ibid. (w.e.f. 27-5-1976)”[2]. This implies that the subsequent marriage stands null and void ab initio.

For instance, Rajesh Bai V. Shanta Bai[3] – The offended party after the demise of her significant other Sadashiv asserted for her offer in his property however since Sadashiv was at that point wedded to Shanta Bai and hence the marriage of Rajesh Bai became invalid and void.

Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav[4] – The candidate Yamunabai asserted that since she wedded the respondent Anantrao she ought to be qualified for the support as his better half, however the court said that despite the fact that the man regarded her as his significant other yet since the law doesn’t consider her to be his better half, in this way, she can’t partake in the advantages of marriage.

Potential laws which permit the second wife for maintenance

(a) A wife has the right to claim for maintenance from her husband on the basis of separation under Section 125 of CrPC[5]. Expecting an individual to have viewed that particular individual as his significant other in the general public, that can be treated as evidence of their marriage. For instance:

Mallika and Anr v. P Kulandi[6], the spouse distorted that his first wife had been dead, it was held by the court that since they have invested a lot of time as a couple and they additionally have a son on this basis she could claim maintenance .

Badshah versus Sou. Urmila Badshah Godse and Anr.[7] Badshah distorted him to be single and therefore Urmila married him, following 3 months of marriage, his first wife Shobha came and asserted that the applicant is her husband when Urmila asked him, he asked her to either discreetly remain with them or she can leave for her parent’s place to which she endured remaining with him and Shobha because she was pregnant around then, later Badshah began tormenting her. Ultimately, she left for her parent’s place and  when she petitioned for maintenance it was held by the court that it was Badshah’s shortcoming to distort his conjugal status and since they have remained together for a lot of time, in this manner, she is qualified for support under section 125 of CrPC.

(b) It is said in Hindu Adoption and Maintenance Act[8] that, if a lady after her marriage comes to realize that her husband is already married then she could ask for maintenance. For example –

Satyanarayana v. Seetheramama[9]  despite the fact that the spouse isn’t living with his first wife, the simple presence of the principal marriage is sufficient for the second marriage to be void and be the ground for maintenance

(c) Section 24[10] and Section 25 of the Hindu Marriage Act[11]– before only the first wife could ask for maintenance and alimony but now even the second wife could claim for it.

  1. Polygamy under Criminal Law

Section 495 of IPC[12]– “Whoever commits the offense defined in the last preceding section having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine”  It implies that if an individual does a second marriage by concealing current realities about his first marriage, then, at that point he can be rebuffed for as long as 10 years of imprisonment or fine or both, assuming individual experiences this, the individual could also file a case under Section 415 of IPC[13] for Cheating. Section 415 of IPC says “Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any proper­ty to any person or to consent that any person shall retain any property or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to ‘cheat’”[14]. It implies that if an individual accomplishes something deceitfully, to take the assent of the other then the person in question can be sued under cheating.

  1. Evidence Act, 1872[15]

Under Section 114 of the Evidence Act[16], it is said that “The Court may assume the presence of any reality which it thinks prone to have occurred, with respect to the normal course of regular occasions, human lead and public and personal business, in their connection to current realities of the specific case”. On account of marriage, it implies that a couple can be said to be married regardless of whether they have legitimate verification of their marriage or not, on the off chance that they live respectively in the general public as a wedded couple, playing out all obligations and customs which a husband and spouse should perform together. For instance-

Rangnath Parmeshwa Pandirao Mali V Eknath Gajanan Kulkarni[17] – the court held that the subsequent marriage took place since the couple was living as a wedded couple, and despite the fact that there are no legitimate confirmations the court could assume this under section 114 of the Evidence Act.

Sumitra Devi V Bhinkan Chaudhary[18] –  following 10 years of marriage and a kid, Bhinkan was already married. Sumitra Devi claimed for maintenance and the court said that since they were living like a normal couple for such a long time that it is sufficient ground to demonstrate that the marriage occurred and therefore she could claim for maintenance.

Conclusion

Polygyny has been a part of society for quite a long time and even though today when it has been prohibited people still practice it illegally. Through the judgments talked about in the article, it tends to be seen that despite the fact that the law has made rights so the second wife could get maintenance, yet it is extremely challenging for a lady to demonstrate that the marriage happened following legitimate traditions and customs and people take advantage of it and save themselves from paying maintenance. The ambit of the term ‘lawfully married wife’ ought to be somewhat decreased so nobody can abuse law, which is really there to shield the guiltless. The decisions ought to be taken remembering the shamefulness that has happened to both the first and second wife, so that if nothing else she basically gets monetary security. The laws against second marriage ought to be made stricter with the goal that one would think somewhere around multiple times prior to taking such a choice and a blameless life could be saved.


References

[1] The Hindu Marriage Act, 1955.

[2] The Hindu Marriage Act, 1955 § 11.

[3] Rajesh Bai v. Shanta Bai, AIR 1982 Bom 231, (1981) 83 BOMLR 327.

[4] Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav, 1988 AIR 644, 1988 SCR (2) 809.

[5] The Code of Criminal Procedure, 1974, § 125.

[6] Mallika and Anr v. P Kulandi, 2000 CriLJ 142, I (2001) DMC 354.

[7] Badshah versus Sou. Urmila Badshah Godse and Anr, (2014) 1 SCC 188.

[8] Hindu Adoption and Maintance Act, 1956.

[9] Satyanarayana v. Seetheramama, Criminal Appeal Nos.399, 400 and 401 of 2014.

[10] Hindu Marriage Act, 1956 § 25.

[11] Hindu Marriage Act, 1956 § 25.

[12] The Indian Penal Code, 1860 § 495.

[13] The Indian Penal Code, 1860 § 415.

[14] Ibid.

[15] Evidence Act, 1872.

[16] Evidence Act, 1872, § 114.

[17] Rangnath Parmeshwa Pandirao Mali V Eknath Gajanan Kulkarni, 1996 AIR 1153, 1996 SCC (2) 226.

[18] Sumitra Devi V Bhinkan Chaudhary, AIR 1985 SC 765, 1985 CriLJ 528, 1985 (2) Crimes 88 SC, 1985 (1) SCALE 184, (1985) 1 SCC 637.

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