When A Man Marries A Woman Knowing Fully That She Was Not Legally Divorced From Her Earlier Marriage Can't Plead Invalidity Of Marriage In 125 Proceedings: Chhattisgarh HC

The observation was made by a Single Bench of Justice Rajendra Chandra Singh Samant while presiding over a revision filed against the order passed by a Family Court, denying maintenance to the Applicant-wife on the ground that she has not obtained a valid divorce from her first husband and hence, she is not a legally wedded wife of the Respondent (second husband).

Precedent

The Single Judge referred to the case of Motim Bai Borkar v. Arjun Singh Borkar, 2017 (2) CGLJ 330, in which it was contention of the petitioner wife that she had obtained divorce from her first husband by mutual consent as per custom.

A coordinate Bench of the High Court had held therein that even though the Petitioner's divorce with her husband was not strictly in accordance with law, she and the Respondent had been living together for some time as husband and wife, and therefore, such relationship has to be treated as valid for the purposes of Section 125 of CrPC.

It was held therein that when the second husband married the petitioner knowing fully well that her earlier marriage had not ended in a valid divorce, then he is estopped from raising a plea under Section 125 CrPC that the second marriage is invalid.

Findings

In the instant case, the Single Judge observe that after performing of marriage of the applicant with the respondent in the light of previous history of the applicant, the respondent could not have raised such plea regarding the invalidity of the marriage "A person cannot approbate and reprobate at the same time," it remarked.

Coming to the aspect of capacity to pay maintenance, the Judge noted that no evidence was placed on record to point out whether the respondent has means to pay maintenance to the Applicant or not.

However, it noted that the Respondent is an able-bodied person, capable of earning a livelihood and paying maintenance to his wife.

"After looking to the evidence in the record of the proceeding and appreciating the same, it is found that there is no such evidence present to make out that the respondent has some employment and he has some fixed salary and income from any source, otherwise the respondent is an able-bodied person who can earn livelihood and pay maintenance to the applicant. Hence, on this basis an amount of maintenance can be fixed to be paid to the applicant by the respondent," the order stated.

Background

The Applicant in this case was previously married to one Rajendra. It was her case that after obtaining a customary divorce from Rajendra, she married the Respondent herein.

The Family Court Bilaspur, had dismissed her application for maintenance under Section 125 of CrPC and held that the marriage of the applicant with the respondent was performed in 2015 but, she is not legally wedded wife of the Respondent.

In revision, the Respondent had argued that no error has been committed by the family court inasmuch as it was an admitted fact that the previous marriage of the Applicant was existing and the same was not dissolved by any Court of law.

It was submitted that for the purposes of Section 125 of CrPC, it is necessity that the Applicant should be a legally wedded wife, hence, the Applicant does not fulfil this criterion and has no entitlement for grant of maintenance.

Case Title: Teras Dongare v. Avinash Dongare

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