'Legal Loopholes Allow Offenders To Slip Away Unscathed': Delhi High Court On Maintenance Dispute Between Couple Having Living Spouses

Dealing with a peculiar maintenance dispute arising between a married couple having living first spouses, the Delhi High Court recently expressed it's sympathy with the position of the woman observing that the legal loopholes allow offending parties to slip away unscathed.

The husband had approached the Court under Section 125 of Cr.P.C. challenging a Family Court order wherein a maintenance of Rs. 4200 per month was awarded to the woman.

The woman, allegedly the second wife, had submitted that the Petitioner had concealed the fact that his first marriage was subsisting.

She further stated that the Petitioner was aware of the fact that her husband had deserted her and that she had sought for divorce by panchayat as per the prevalent customs. Thus, she was treated as a legally wedded wife of the Petitioner for a span of about ten years, before being thrown out in the year 2009.

The husband however highlighted that no documents was placed on record to substantiate that the Petitioner had obtained a divorce from her former husband.

In the peculiar facts of the case, the Court noted that though the couple resided together and cohabitated, it cannot be presumed to be legally married for the purposes of Section 125 CrPC as they both had living spouses at the time.

"This Court finds it unfortunate that many women, specially those belonging to the poorer strata of society, are routinely exploited in this manner, and that legal loopholes allow the offending parties to slip away unscathed," the Court thus remarked.

The Court observed that ordinarily, even if a woman does not have the legal status of a wife, she is brought within the inclusive definition of "wife" in order to maintain consistency with the object of the statutory provision.

However, in the present case, a second wife whose marriage is void on account of survival of the first marriage would not be a legally wedded wife, and therefore would not be entitled to maintenance under Section 125 CrPC.

In view of this position in law, Justice Subramonium Prasad said:

"In spite of the social justice factor embedded in Section 125 Cr.P.C., the objective of the provision is defeated as it fails to arrest the exploitation which it seeks to curb."

While the Court said that it sympathises with the woman, it said that it was constrained to deny her maintenance as per the law of the land which stands as of today.

The petitioner and respondent woman were married as per Hindu Rites and Customs in November 1999. Thereafter in September 2011, the woman had filed a petition under sec. 125 Cr.P.C before the Trial Court seeking maintenance from him.

In the reply to the petition, the man had stated that both of them were already married to their respective spouses at time of the alleged marriage between the two parties, and therefore, she was not entitled to any maintenance on the ground that the alleged marriage was null and void.

The petitioner man had deposed before the Trial Court that he had been married in May 1980 with one Dharamwati and that his marriage was still subsisting. His stand was supported by Dharamwati during her examination.

The Trial Court, vide the impugned order, observed that there was a clear indication that the parties in question were living together as husband and wife, and had conveyed the same to the society at large. Further observing that a woman in a live-in relationship would be entitled to maintenance, the Court had directed the Petitioner to pay the maintenance amount to the respondent.

Hearing challenge to this order in the present case, the High Court made it clear that even though while adjudicating maintenance matters cause of social justice has to be seen, however, for Section 125 Cr.P.C. to be applicable to a case, one needs to fall under the ambit of "wife" as envisaged in the statutory provision.

Taking note of the fact that both the Petitioner and the Respondent were already married to other individuals when their alleged marriage took place, the Court observed:

"Additionally, a "wife" under Section 125 Cr.P.C. would include a woman who has been divorced by a husband or who has obtained a divorce from her husband and has not remarried. As discussed above, even if a woman does not have the legal status of a wife, she is brought within the inclusive definition of "wife" in order to maintain consistency with the object of the statutory provision. However, a second wife whose marriage is void on account of survival of the first marriage would not be a legally wedded wife, and therefore would not be entitled to maintenance under this provision," the Court observed at the outset.

It added:

"In spite of the social justice factor embedded in Section 125 Cr.P.C., the objective of the provision is defeated as it fails to arrest the exploitation which it seeks to curb. In the instant case, while the Court sympathises with the position of the Respondent, it is constrained to deny her maintenance as per the law of the land which stands as of today. 

However, the Respondent has the liberty to avail other remedies that may be better suited to the facts and circumstances of this case, such as seeking of compensation under Section 22 of the DV Act."

Accordingly, the Court allowed the petition and set aside the impugned order.

Case Title: SUNDER LAL SAINI v. MEENA SAINI

Click Here To Read Order