MAINTENANCE TO II WIFE: NARROW INTERPRETATION OF LEGAL JURISPRUDENCE BREAKING DOWN ON GENDER JUSTICE
Author: Jatin yadav, II Year of B.A.,LL.B(Hons.) From HNLU, Raipur.
Hindu Marriage Act Through the virtue of section 5(i) (essential conditions for a Hindu marriage) read with Section 11 (Void marriages) declares subsequent Marriage of a Hindu Spouse to another void ab intio if previous one is in Continuance. This section was inserted so as to curb the Practice of Polygamy prevalent in India since its inception; which puts women at disadvantage in their social standing as Compared to men. But somehow this legal standpoint under certain peculiar circumstances is in juxtaposition with woman’s right, when an innocent woman falls Victim to Deception and Subterfuge of dishonest man. This attracts Social Stigma coupled with No Legal recognition of her status and Financial Impoverishment as HMA and other acts such as HAMA doesn’t specifically talks about the rights of second wife. This makes it very difficult for a woman who has suffered because of bigamy to claim Maintenance or other financial support from courts of law. But over the years through liberal Judicial Interpretation, Indian courts have stepped as to safeguard rights of such woman by drawing a Harmonious construction between various marital laws.
Many personal as well as general (secular) laws in the subcontinent are equipped with Provisions concerning financial relief or Maintenance to a Wife. Hindu Marriage Act under the heads of Section 24 and Section 25 Draws provisions for Interim as well as Permanent Maintenance, for both the spouses respectively. While Section 18 of Hindu Adoption and Maintenance Act mentions ground on which a wife can claim to be maintained by her Husband and Section 19 of the same act also allows a widowed daughter in law is entitled to claim maintenance from her father- in- law under specifics elaborated in the said section. These provisions circumscribed the provision of maintenance only to Hindu wives, and overtime there arose a need for a secular law under which any woman in marital relation in spite of follower of religion other than Hinduism can claim maintenance, hence S125 code of criminal procedure was enacted with a more Broader boundary so as to encompass within it all Marital relations. Moreover women who are victim of domestic violence can also claim financial assistance under Section 20.
S125 of Code of criminal Procedure elaborates on the concept of Maintenance in light of the term ‘wife’ as it explicitly states in the verbatim of the aforementioned section “wife includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried”.Hence limiting the definition of wife to a legally wedded one. The Indian Laws are quite clear on their position regarding Maintenance to First wife but this provision is covered in shadows in context of second wife. While Monogamy has been the prevalent form of Marriage in ancient India, polygamy wasn’t absence and neither was considered immoral. It’s evident by various Vedic and post Vedic literature of Dharamasutra and Smiritis which throws light on the norms concerning marriages including polygamy. Arthashastra also mentions the practice of polygamy and tries to deter it. In ancient India Popular notion was that first wife was superior to subsequent ones and her progeny also enjoyed priority in comparison to others. In Contemporary India unfortunately the reality isn’t much different, hence with legal stance and social outlook mounting against her, many Indian courts have denied Maintenance to such wives as held in “Priya Bala Ghosh v. Subhash Chandr Gosh” .
Maintenance in accordance with Hindu Adoption and Maintenance Act, 1956
HAMA makes it quite clear that it is one of the primary conjugal duties of a husband to maintain his wife by the virtue of Section 18. It mentions grounds such as desertion, cruelty, concubine or other wife as sufficient ground to live separately from her husband and claim maintenance but it becomes quite gray if concerned with the position of second wife. Delhi High Court broadening the horizons of term ‘wife’ under HAMA since it doesn’t provide definition of the same held in the case of “Narinder Pal Kaur Chawla v S. Manjeet Singh Chawla” that it will also include second wife and same will be entitled to sufficient maintenance so as to restore her to previous position. But in another case of “Mangala Bhivaji Lad v Dhondiba Rambhau Aher”, Bombay High Court restricted the ‘wife’ to ‘legally wedded wife’ and held that the second wife can’t claim maintenance for herself or her child since her marriage was in the violence of law hence void.
Thus the position is not clear and differs variably throughout the India with different courts interpreting section 18 of the mentioned act differently.
Code of Criminal Procedure, 1973 : Another Legal Dilemma
Again Indian courts have also considered this dilemma of maintenance regarding second wife differently under Crpc as well. Allahabad HC refused maintenance to second wife in the case of “Ishwar Singh v. Smt. Hukam Kaur and in Savitaben Somabhai Bhatiya v. State of Gujarat and Ors”. Court declared that unawareness of marital status of a man can’t be a valid ground of Maintenance under crpc as long as Legislature doesn’t fulfill this lapse by amending the act. However announcing its verdict in the case of “Rameshchandra Rampratapji Daga v. Rameshwari Daga”, Bombay HC held the stand that Second marriage is illegal but not immoral as the same was legitimate earlier, hence wife was entitled to maintenance. The Supreme Court taking a liberal stand held in “Badshah v Sou. Urmila Badshah Godse & Anr”. That section 125 should be interpreted liberally and held the right of woman to maintenance court also in one of kind judgment held that that “if a man and woman cohabit for a considerable period even without a valid marriage, a man in such a case must pay maintenance to the woman under Section 125.”
The Apex court’s liberal stand on the interpretation of s125 would also compel other court’s to abide by it by the virtue of ‘stare decisis’ enshrined in Article 141 of the Indian constitution hence providing relief to a woman caught between social degradation and law’s ignorance to protect her dignity and integrity. The need for legislature to enact a bill or amend the concerning act’s remains if the lapses and fallacies of such kind have to be eliminated.
The neglect of her needs as she navigates troubled water of her marriage imposes seclusion and paranoid sense of insecurity leading to vociferous ramifications on Dignity and Self-esteem of women; a judicial policy of gradual development substantiated by Legislative action can help in curbing legal cum social dilemma that confronts these women who are not only abandoned by their supposed “spouse” but also are devoid of legal recourse hence law doing the same.