Second wife entitled to maintenance: Bombay HC

The husband will not be permitted to deny her maintenance though there is no evidence that the second wife married him without prior knowledge of his first marriage.

Marrying a second time though you are already legally married voids the second marriage under Hindu law. However, the second wife of a Hindu man is entitled to maintenance if she marries without prior knowledge of his first marriage, the Bombay high court held last week.

The husband will not be permitted to deny her maintenance under section 125 of the Criminal Procedure Code (CrPC) though there is no evidence that the second wife married him without prior knowledge of his first marriage, said Justice MS Sonak.

The judge struck down the order passed by an additional sessions judge at Nashik in 2002, which held that the petitioner, Rakhmabai was not entitled to maintenance from her husband, Pandurang Sonawane, under section 125 of the CrPC as she was not his legally wedded wife, having married him in 1973, when his first marriage (in 1966) had not been annulled.

Acting on Pandurang’s plea, the sessions judge had reversed the July 2001 order of a magistrate court at Sinnar, which had directed Pandurang to pay Rakhmabai Rs500 a month from 1999. Rakhmabai then approached the high court. The court held that the sessions judge failed to appreciate the social purpose behind enacting section 125 of the CrPC, which empowers destitute wives, children and parents to seek maintenance from their husbands, fathers or sons.

The judge held that the proof of marriage required under section 125 is not as strict as is needed to prove a criminal charge. It is enough if the claimant proves the evidence of marriage and prolonged cohabitation as husband and wife. She is not required to prove that all mandatory rites were performed during such a marriage.

Once the claimant succeeds in showing that she and the respondent have lived as husband and wife, the court can presume that they are legally wedded spouses. As such, the party which denies the marital status has to contest the court’s assumption, said Justice Sonak.

The judge said in Rakhmabai’s case there was ample evidence to show that Pandurang and she lived as husband and wife and had produced a son from said cohabitation.