Second wife is not entitled to maintenance as per Section 125 of Criminal Procedure Code

Ashutosh Rajput | Hidayatullah National Law University | 19th May 2020

Savitaben Somabhai Bhatiya vs State of Gujrat & Ors. [Criminal Appeal 399 of 2005 arising out of SLP (Crl.) No. 4688 of 2004)]

Facts: 

The appellant was married to the respondent no. 2 in 1994. Respondent no. 2 at a later point of time started treating her ill and also tortured her. A child was born through the appellant. Subsequently, the appellant came to know that he has an illicit relationship with one Veenaben. The appellant was living separately and filed an application under section 125 of the Criminal Procedure Code (CrPC) so as to claim maintenance, as the respondent no. 2 neglected the appellant. Later the appellant filed the application before Judicial Magistrate first class (JMFC) wherein the respondent no. 2 contended that the appellant was not legally married wife and the child born (respondent no. 3) was not his son and Veenaben had married to him before 22 years. The JMFC allowed the petition and granted maintenance. Respondent no.2 then filed a criminal revision before the learned Additional Sessions Judge which set aside the order passed by JMFC and subsequently by another order, the learned JMFC ordered to award maintenance to both the appellant and the child. Again Criminal Revision Application was filed by the respondent no.2 against the later order of JMFC therefore, Additional District Judge dismissed the application so he filed for Special Criminal Application before the Gujrat High Court and the maintenance awarded to the child was increased from 350/- to 500/-. Hence, the appellant filled for the appeal.

Issue: 

1. Whether the appellant is entitled to claim maintenance?
2. Whether the quantum of maintenance be increased?

Arguments by the parties:

Arguments by the appellant: 

1. High Court has taken a too technical view as strict proof of marriage is not a sine qua non under section 125 of CrPC.
2. The respondent no.2 is guilty of fraud as in, he was priorly married to Veenaben therefore, the equity doesn’t stand in his favour.
3. The order passed by the JMFC should be restored and the amount should be enhanced from rupees 500/- as in this time period it would meet hardship.
4. There is inadequacy in law with respect to section 125 of CrPC.
5. In Dwarika Prasad Satpathy v. Bidyut Prava Dixit & Anr. (AIR 1999 SC 3348) it was held that the standard of proof of marriage is not a strict requirement with respect to the offence under section 494 of Indian Penal Code and if it is shown that both the husband and wife were living together it can be concluded that both are legally weeded spouse and an obligation of maintenance should be awarded.

Arguments by the respondent: 

1. The term ‘wife’ refers to who is married and will not include who is not married and the 2^nd marriage is void ab initio so it becomes pertinent that maintenance would not be granted. 

Judgment: 

The expression ‘wife’ should be a legally wedded wife as per section 125 of CrPC and marriage of women in accordance with the Hindu rites with a man is complete nullity in the eyes of law as per Hindu Marriage Act, 1955 and its position is unclear with respect to section 125 of CrPC and if granted maintenance it would defeat the provisions of Hindu Marriage Act, 1955 hence, the scope of section 125 of CrPC is clear to legally wedded wife. 

The quantum of maintenance will be increased from rupees 500/- to 850/- as after the amendment of 2001 in the Civil Procedure Code, there is no limitation with respect to quantum of maintenance. Hence the appeal is disposed of.