Concealing Existing Marriage will allow Wife to claim Maintenance under Section 125 CrPC

Under Section 125 of the Code of Criminal Procedure (“CrPC”), wives, children and parents, if the situation requires, can claim maintenance. Recently, Supreme Court of India, while delivering the judgment in Badshah v. Sou. Urmila Badshah Godse & Anr, had to decide a vital question pertaining to section 125. In this case, a situation had arisen where a woman, being unaware of the existence of man’s first marriage, was claiming maintenance. The question which the court had to decide was – whether, in such a situation, a woman can be considered as ‘wife’ for claiming maintenance under section 125 of CrCP? Under Hindu Marriage Act, 1955 (“Hindu Marriage Act”), a person cannot marry where he/she has a spouse living at the time of marriage. Because of this, the question that arose in the present case becomes important. In this post, I have summarised the important points of this case where court had upheld the maintenance claim of wife.

(Singapore Cheating Spouse Blog)

Facts: The Petitioner, Badshah, married Respondent no. 1, Urmila, after the divorce of the latter from her first husband. Later, it was found by the Respondent No. 1 that the petitioner was already married to one lady, Sobha. Petitioner had duped respondent No.1 by not revealing the fact of his first marriage and pretending that he was single. Even after finding this fact, the Respondent no. 1 continued to live with the Petitioner as she had become pregnant. When the ill-treatment by the Petitioner became intolerable, the Respondent no. 1 was left with no choice but to go to the house of her parents. Subsequently, Respondent no. 1 gave birth to a girl child whose biological father was Petitioner. A proceeding was consequently initiated by Respondent no.1 for claiming maintenance under Section 125 of CrPC. The maintenance was granted in favour of the Respondent no. 1 by the Sessions Judgment and, on appeal, the order was affirmed by the High Court.

Settlement for waiving maintenance claim not to bar maintenance under Hindu Adoption and Maintenance Act, 1956

A recent ruling of the Supreme Court (“Nagendrappa Natikar Vs. Neelamma”), which is both cautionary and remedial in nature, has opined that giving up future claim for maintenance (“by a compromise settlement”) and the fact of it being accepted by the court under Section 125 of CrPC, would not preclude a wife from claiming maintenance Section 18 of Hindu Adoption and Maintenance Act, 1956. The main reason behind this is the tentative nature of the maintenance under Section 125 of CrPC. In this short judgment, Court held that:

“Section 125 Cr.P.C. is a piece of social legislation which provides for a summary and speedy relief by way of maintenance to a wife who is unable to maintain herself and her children. Section 125 is not intended to provide for a full and final determination of the status and personal rights of parties, which is in the nature of a civil proceeding, though are governed by the provisions of the Cr.P.C. and the order made under Section 125 Cr.P.C. is tentative and is subject to final determination of the rights in a civil court.”

“Section 25 of the Contract Act provides that any agreement which is opposed to public policy is not enforceable in a Court of Law and such an agreement is void, since the object is unlawful. Proceeding under Section 125 Cr.P.C. is summary in nature and intended to provide a speedy remedy to the wife and any order passed under Section 125 Cr.P.C. by compromise or otherwise cannot foreclose the remedy available to a wife under Section 18(2) of the Act.”

Note: Under Indian Contract Act, 1872, Section 23 & 24 provides for the "unlawful". However, Court, in this judgment, has referred to Section 25 of the Act which provides for an agreement to be void if it is without consideration. Click here for the judgment