‘Wife’ under Section 125 of Criminal Procedure Code

 Introduction

Maintenance is a social, moral and legal responsibility. Law extends maintenance right to wife, husband, parents, minor children and in some cases to major children. With respect to wife, it is to be discharged both during subsistence of marriage and also after divorce until the spouse is re-married subject to personal law. Legal responsibility of maintenance is provided both under the personal law as well as under Section 125 of the Code of Criminal Procedure, 1973 (“Code”), which provides a relief of maintenance to the wife, children and parents, provided they are unable to maintain themselves. The legislation under Section 125 of the Code is broad enough and does not differentiate between religions as well as the minor-legitimate and illegitimate child and the major children who are physically and mentally challenged or due to injury are unable to maintain themselves except for married daughter. The Hindu Law provides for maintenance under two of its statutes-Hindu Marriage Act, 1955 and Hindu Adoption and Maintenance Act, 1956. The Special Marriage Act is a secular law that provides relief to those who are married under the Act. The Parsi Marriage and Divorce Act, 1936 provides for maintenance of Parsis and for Christians, it is provided under the Indian Divorce Act, 1936. The maintenance under different laws is of the nature of pendente lite (maintenance during the pendency of litigation) and permanent alimony. The focus of the article is to understand the meaning of ‘wife’ seeking maintenance relief under Section 125 of the Code. Normally, such situation arises wherein the parties have undergone a second marriage during lifetime of the first one by an act of concealment of fact of subsisting marriage. The article examines the definition of ‘wife’, nature of proceedings under the Section 125 of the Code and impact on the situation from registration of marriage.

A. Definition of ‘wife’ under the Section 125 Code

The Code clearly does not define ‘wife’ but states that it includes women who is divorced by or has obtained divorce from her husband and has not re-married. So, who all can claim maintenance under the definition of wife?

  • Legally wedded wife
  • Divorced wife but not a re-married wife

The important part is that ‘wife’ can seek maintenance even if she has not initiated any proceeding under the personal law. Additionally, staying separate from the husband under justified grounds may not exclude her from definition of ‘wife’ for the purpose of the section.

B. Nature of the Proceedings

Maintenance under Section 125 of the Code is a social legislation, which is meant to prevent vagrancy and provide immediate relief for food, clothing and shelter. The Code was amended suitably in the year 1973 to include consideration of women’s inability to maintain as ground to grant her maintenance. This was retariated by the Hon’ble Supreme Court even in Bhagwan Dutt vs. Kanta Devi[1]. The intention of the legislature is suitably covered by the nature of proceedings under Section 125 of the Code, which is of summary nature and is not meant to affect the civil rights of the parties. The strict standard of proof is not required under section 125 of the proceedings. In Dwarka P. Satpathy vs. Bidyut Prava Dixit & Another[2] the apex court held that the validity of marriage for the purpose of summary proceedings is to be determined on the basis of evidence brought on record by the parties. The trial procedure in such cases is not as strict as under section 494 IPC. If the claimant under proceeding is able to show she lived as husband and wife, then the same may amount to ground of relief by taking into account the presumption of marriage subject to rebuttal to the presumption raised. Regarding non-appearance in such cases of the spouse to rebut the presumptions of marriage, the Privy Council in the case of Gurbaksh Singh v. Gurdial Singh[3], held that it is the bounden duty of a party, personally knowing the whole circumstances or the case, to give evidence on his own behalf and to submit to cross-examination. His non-appearance as a witness would be the strongest possible circumstance going to discredit the truth of his case. Similarly, this Court in the case of Pirgonda v. Vishwanath, held as follows:”Normally, a party to the suit is expected to step into the witness box in support of his own case and if a party does not appear in the witness box it would be open to the trial Court to draw an inference against him. If a party fails to appear in the witness box, it should normally not open to his opponent to compel his presence by the issue of a witness summons………..” Of recently Mumbai High Court in Siddappa Satappa Savali vs. Smt. Mahananda Sidappa Savali[4] the orders passed under Section 125 CrPC can never come in way of civil rights of the parties to get appropriate declarations. In marriage of this nature, strict proof is not required

C. Entitlement of Maintenance when Spouse is living and Second Marriage done

The Apex Court in the case of Yamunabai Adhav v. Anantrao Adhav held that the wife’s right to maintenance depends upon the continuance of her married status and if her marriage is null and void because of the husband having a spouse living at the time of marriage, then the wife is not entitled for maintenance. The Apex Court further held that the contention of the wife that at the time of her marriage she was not aware of husband’s subsisting marriage is of no consequence. The Apex Court also held that even if the husband had treated her as a wife will not come to her rescue because it is the intention of the legislature, which is relevant, and not the attitude of the party.

In another case a different set of facts were on record wherein second marriage solemnized was void due to subsistence of the first marriage but after divorce if the spouses continue to live as husband and wife would the wife entitlement to maintenance. The opinion of the Mumbai High Court in Prabhubhai Ranchhodbhai Tailor vs Mrs. Bhartiben Prabhubhai Tailor[5] the Hon’ble court threw light on the present case. Even though the second marriage of the husband during the subsistence of the first marriage was null and void, on the dissolution of the first marriage, if the parties to the second marriage continued to live together as husband and wife, then there is no impediment in conferring the status of ‘wife’ to the second wife. In other words, even if the second marriage was null and void when solemnized on account of the subsistence of the first marriage of the husband, if the parties to the second marriage continue to live as husband and wife even after the divorce of the first marriage then the second wife would be entitled to the status of a wife and consequently has a right to claim maintenance.

 D. Remedy by way of Registration of Marriage

The dispute to that who is ‘wife’ can be resolved to great extent by registering marriages in India. Supreme Court of India has ordered the compulsory registration of all marriages in India, irrespective of the religion. In India, a marriage can be registered under either of the two marriages Act:  The Hindu Marriage Act, 1955 (“HMA”) and The Special Marriage Act, 1954.

(a) Hindu Marriages

The HMA is applicable only to the Hindus, The HMA provides for registration of an already solemnized marriage under Section 8. It does not provide for solemnization of marriage by the Registrar. All rules made in this section may be laid before the state legislature.  A Hindu marriage, which has already been solemnized in accordance with the religious customs and rituals, can be registered under the HMA. The parties to the marriage have to apply to the concerned authority in whose Jurisdiction the marriage is solemnized or either party to the marriage has been residing. The process of registration requires along with the application form they to attach two photographs of the marriage ceremonies, invitation card of marriage, age and address proof of both parties, affidavit of Notary/Executive Magistrate to prove that the couple is married under Hindu Marriage Act and have fit mental condition, relationship between the parties is not within the degree of prohibition.

Both the parties have to appear before the Registrar along with their parents or guardians or other witnesses within one month from the date of marriage.  Marriage is registered before a marriage registrar/tahsildar of the district, wherever the parties got married. The registration under the HMA does not require any notice. It can be done on the same day of the filing of application or a few days of moving the application for marriage. The parties will receive a marriage certificate within few days, which is a proof of registration of marriage.

(b) Other Religion

The Special Marriage Act is applicable to all citizens of India. Any person, irrespective of religion such as Hindus, Buddhists, Jains, Sikhs, Muslim, Christian, Parsi, or Jewish can perform marriage under the Special Marriage Act, 1954. Special Marriage Act provides for solemnization of a marriage as well as registration by a Marriage Officer/Registrar. Both parties to be present on the date of registration of marriage with the proof of age and address of both parties, affidavit with regard to these as well marital status, fit mental condition, non relationship between the parties within the degree of prohibition, passport size photographs and with three witnesses. In the presence of these three witnesses the Marriage Officer solemnizes the marriage. The Marriage officer registers the marriage and a marriage certificate is issued within few days of marriage.

Conclusion

The observation of the Bombay High Court in Prabhubhai Ranchhodbhai Tailor (Supra) is the most appropriate conclusion:

“With the ever-increasing matrimonial offences, time has come for the Parliament to have a fresh look and see whether the existing laws strike a balance in the matter of rights and obligations cast upon the husband and wife in preserving the sanctity of the sacred institution of marriage. Luckily, in the present case, the first marriage of the husband ended in a divorce, as a result whereof maintenance could be granted to the wife. But if the wife is an innocent victim and it is only after the marriage, she realises that the husband has cheated her by not disclosing the existence of a living spouse, should the wife be at the mercy of the husband and stay with him as a concubine? Should there be no legislation granting some protection for her to live independently in a dignified way by seeking maintenance from the husband? In a society where the marriage between a man and woman is considered to be sacred and supposed to last beyond the existence of the physical body and extend for generations, whether the existing legislations strike a balance in the matter of matrimonial offences committed by a man or a woman? It is for the legislature to consider and take appropriate measures.”

 HMA however, gives maintenance to wives of void and bigamous marriages. Supreme Court in Ramesh Chandra Daga vs. Rameshwari Daga[6] held that marriage may be declared illegal contravention of the provision of the HMA but it cannot be said to be immoral so as to deny the right to alimony or maintenance to the spouse financially and economically weak. Parsi Law and Hindu Law are same however, under Christian law position is different as maintenance is granted only on divorce or judicial separation and therefore, the void marriages are not covered under it. Even though the Indian Divorce Act, 1936 has been suitably amended but has not been amended to include void marriages.

There exist inadequacy of laws to protect women who have been kept in dark from relief of maintenance under the Code, the protection however can be extended only by legislature alone.


[1] AIR 1975 SC 83

[2] AIR 1999 SC 3348

[3] 29 BLR 1392

[4] Crl Writ Petition of 1464 of 2001

[5] 2004 (3) MhLJ 487

[6] AIR 2005 SC 422

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