Bench:

• Ranjana Prakash Desai
• A.K. Sikri

Issue:

Is the second wife entitles to any maintenance?

Facts:

• The petitioner was married to the respondent on 10th February 2005, at Devgad Temple situated at Hivargav-Pavsa.

• The marriage was performed as per Hindu Rites and customs.

• After her marriage, she resided and cohabited with the petitioner, one lady Shobha cam to the house of the petitioner and claimed herself to be his wife.

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• On inquiring from the petitioner about the said lady Shobha, he replied that if she wanted to cohabit with him, she should reside quietly, otherwise she was free to go back to her parents’ house.

• When Shobha came to the house of the petitioner, the respondent was already pregnant from the petitioner, therefore, she tolerated the ill-treatment of the petitioner and stayed along with Shobha.

• However, the petitioner started giving mental and physical torture to her under the influence of liquor.

• When the ill-treatment of the petitioner became intolerable, she came back to the house of her parents. Respondent â„–2, Shivanjali, was born on 28.11.2005. On the aforesaid averments, the respondents claimed maintenance for themselves.

• The petitioner sought leave to appeal against the judgment and order dated 28.2.2013 passed by the High Court of Judicature at Bombay in which the High Court has upheld the award of maintenance to respondent â„–1 at the rate of Rs.1000/- per month and to respondent â„–2 (daughter) at the rate of Rs.500/- per month in the application filed by them under Section 125 of the Code of Criminal Procedure by the learned Trial Court and affirmed by the learned Additional Sessions Judge.

Petitioner's Contentions:

• The petitioner his relation with respondent Nos.1 and 2 as his wife and daughter respectively. He alleged that he never entered into any matrimonial alliance with respondent No.1 on 10.2.2005, as claimed by respondent No.1 and in fact respondent No.1, who was in the habit of leveling false allegation, was trying to blackmail him.

• He also denied co-habitation with respondent No.1 and claimed that he was not the father of respondent No.2 either.

• According to the petitioner, he had married Shobha on 17.2.1979 and from that marriage he had two children viz. one daughter aged 20 years and one son aged 17 years and Shobha had been residing with him ever since their marriage. Therefore, respondent â„–1 was not and could not be his wife during the subsistence of his first marriage and she had filed a false petition claiming her relationship with him.

Respondent's Contentions:

• The respondents had stated in the petition that respondent No.1 was married with Popat Fapale. However, in the year 1997 she got divorce from her first husband. After getting divorce from her first husband in the year 1997 till the year 2005 she resided at the house of her parents.

• On demand of the petitioner for her marriage through mediators, she married him on 10.2.2005 at Devgad Temple situated at Hivargav-Pavsa.

Judgement:

In the facts of the present case, we are dealing with a situation where the marriage between the parties has been proved. However, the petitioner was already married. But he duped the respondent by suppressing the factum of alleged first marriage. On these facts, in our opinion, he cannot be permitted to deny the benefit of maintenance to the respondent, taking advantage of his own wrong. Our reasons for this course of action are stated hereinafter:

1. Firstly, in Chanmuniya case, the parties had been living together for a long time and on that basis question arose as to whether there would be a presumption of marriage between the two because of the said reason, thus, giving rise to claim of maintenance under Section 125,Cr.P.C. by interpreting the term “wife” widely. The Court has impressed 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. On the other hand, in the present case, respondent â„–1 has been able to prove, by cogent and strong evidence, that the petitioner and respondent â„–1 had been married each other.

2. Secondly, as already discussed above, when the marriage between respondent â„–1 and petitioner was solemnized, the petitioner had kept the respondent â„–1 in dark about her first marriage. A false representation was given to respondent â„–1 that he was single and was competent to enter into martial tie with respondent â„–1. In such circumstances, can the petitioner be allowed to take advantage of his own wrong and turn around to say that respondents are not entitled to maintenance by filing the petition under Section 125, Cr.P.C. as respondent â„–1 is not “legally wedded wife” of the petitioner? Our answer is in the negative.

3. Thirdly, in such cases, purposive interpretation needs to be given to the provisions of Section 125, Cr.P.C. While dealing with the application of destitute wife or hapless children or parents under this provision, the Court is dealing with the marginalized sections of the society. The purpose is to achieve “social justice” which is the Constitutional vision, enshrined in the Preamble of the Constitution of India. Preamble to the Constitution of India clearly signals that we have chosen the democratic path under rule of law to achieve the goal of securing for all its citizens, justice, liberty, equality and fraternity. Therefore, it becomes the duty of the Courts to advance the cause of the social justice. While giving interpretation to a particular provision, the Court is supposed to bridge the gap between the law and society.

Relevant Paragraph:

Supreme Court observed that "This approach is particularly needed while deciding the issues relating to gender justice. We already have examples of exemplary efforts in this regard. Journey from Shah Bano to Shabana Bano guaranteeing maintenance rights to Muslim women is a classic example."

The Supreme Court declined to grant leave to the petitioner and by giving aforesaid reason dismissed the special leave petition.