Bombay High Court: In a writ petition filed under Article 227 of Constitution of India by a second wife who married her husband with the belief that he had divorced his first wife, challenging the judgment and order dated 21-04-2022, Rajesh S. Patil, J. allowed her petition for maintenance.
Factual Matrix
The second wife filed a criminal complaint under Section 125 of Criminal Procedure Code, 1973 (‘CrPC’) seeking maintenance from her husband. It was pleaded that she was the second wife, and her marriage took place in 1989. That she was made to believe that the husband had divorced his first wife. Based on such information, the second wife, petitioner in the instant matter, married the respondent husband and on 3-09-1991, she gave birth to a male child conceived by the respondent.
It was stated that after 1-2 years of their marriage, the husband’s first wife requested him through mediators to allow her to cohabit with him, and through the intervention, the second wife herself consented to her husband to allow his first wife to reside with them jointly. Thereafter, the gave birth to another male child, and the first wife also gave birth to a male child. Immediately thereafter, the husband started harassing the second wife, subjected to various abuses and physical beating by her husband. With the intervention of members of the community, there was a mutual understanding between the second wife and her husband after which, the second wife started residing separately along with her children in the same village and her husband paid maintenance amount to her till 2011.
Since 2011, at the instigation of the first wife, the husband stopped paying maintenance to his second wife and stopped visiting her house as well. He also abused the children conceived with the second wife and threatened them not to demand any maintenance, while having a good monthly income of around 50 to 60 thousand. Therefore, the second wife claimed a sum of Rs 5,000 per month.
The husband in the instant matter denied marriage with the second wife, never resided with her, had no concern with her children, and that his first marriage was still in existence since he never divorced his first wife. On such statement, the second wife expressed her readiness to undergo DNA test to prove paternity of her children. She had also provided some of the school records of her children depicting her husband as their father. A few other witnesses were examined by the second wife to prove her marriage and husband residing with her, while only the first wife and a relative were examined for the husband’s support. JMFC granted maintenance of Rs 2500 per month along with Rs 1000 as cost of application vide order dated 19-01-2015. The husband challenged the said order, which was allowed by the Revision Court. Hence, the second wife challenged the same through the instant petition.
Court’s Analysis
The Court considered the facts purported and referred to Chanmuniya v. Virendra Kumar Singh Kushwaha, (2011) 1 SCC 141 wherein the Court observed that even women in domestic relationship living together for a considerable period, or say live-in relationships were entitled to reliefs under the Protection of Women from Domestic Violence Act, 2005 (‘DV Act’). Then in Badshah v. Urmila Badshah Godse, (2014) 1 SCC 188, the Supreme Court upheld the validity of marriage performed in customary form, which the Court found squarely applicable to the instant matter. The Court further referred to the decision in Dwarika Prasad Satpathy v. Bidyut Prava Dixit, (1999) 7 SCC 675 wherein, it was clarified that the order Section 125 of CrPC does not determine the finality of rights and obligations of the parties, because in Vimala (K.) v. Veeraswamy (K.), (1991) 2 SCC 375, it was held that in a plea by husband regarding marriage being void, the burden of proof of earlier marriage lied with the husband.
Referring to the evidence produced by the second wife and her readiness for the DNA test, the Court was of the view that the husband could not be allowed to deny maintenance to the second wife, while taking advantage of his own wrong. Placing reliance on Dwarika Prasad Satpathy (supra), the Court expressed that for the purpose of Section 125 of CrPC, the second wife would be treated as ‘wife’.
Therefore, the Court quashed and set aside the impugned judgment and order dated 21-04-2022 and confirmed the order passed by JMFC on 19-01-2015. The Court gave 2 months for the husband to clear the outstanding maintenance. For 9 years had passed since the passing of maintenance order, the Court kept it open for the second wife to file an application afresh for enhancement of maintenance amount.
[X v. State of Maharashtra, 2023 SCC OnLine Bom 2676, decided on 14-12-2023]
Advocates who appeared in this case :
For Petitioner: Advocate Narayan G. Rokade, Advocate Ajinkya V. Taskar
For Respondent: Advocate Priyank Daga, Advocate Sushrita Daga, Additional Public Prosecutor Y.M. Nakhwa
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