Maintenance To Second Hindu Wife

Gender Issues | Personal Laws | Religion & Law
November 26, 2021

Kiran Singh

Kiran is a second year law student at Chanakya National Law University. She is interested in Criminal Law, Intellectual Property law and Arbitration.

Abstract

Section 5 of the Hindu Marriage Act, 1955 invalidates a second marriage, while the first is still in subsistence and Section 11 declares it null and void. Section 494 of IPC makes bigamy a punishable offense. Second wives are chained to social stigmas and are looked down upon by society. Innocent second wives who have fallen victim to cunning men and unwittingly marry them find it extremely difficult to claim maintenance. 

This post discusses the position of second Hindu wives historically, as well as in the modern era. It highlights how the legal status of second wives has transformed. This paper gives an insight into the liberal interpretation of laws by the courts in order to safeguard the interests of second wives. Further, it lays emphasis on the persisting problems and tries to provide a solution to them.

Keywords: second wife, maintenance, Section 125 CrPC, Section 18 HAMA.

Introduction

Several secular and personal laws in India lay down the provision for maintenance to a wife. Under the Hindu personal laws, Section 24[1] and Section 25[2] of the Hindu Marriage Act, 1955 provides for interim and permanent maintenance respectively. Under Hindu Marriage Act, both husband and wife are entitled to claim maintenance under the above sections. However, Section 18[3] of the Hindu Adoption and Maintenance Act, 1956 provides for maintenance only to a wife. Among the secular laws, Section 125[4] of Code of Criminal Procedure and Section 20[5] of Protection of Women from Domestic Violence Act, 2005 provide for maintenance specifically to women. Summing up the provisions, “maintenance” can be read as the amount which a person pays to his wife or husband, parents or children, who cannot maintain themselves.

Under Section 125 of CrPC, the term “wife” only refers to a “legally wedded” wife. The law mandates the husband to pay maintenance to his wife during the subsistence of marriage and upon divorce. Therefore, “wife” includes a woman who has been divorced by her husband or has obtained a divorce from her husband until she has remarried.[6] The second wife, here, refers to a woman married to a man while his first marriage was still in existence. 

While the laws explicitly provide for the maintenance of the first Hindu wife, i.e., the legally wedded wife, the position of a second Hindu wife is vague. To better understand the unclarity in the laws, it is first important to understand the social standing of a second wife.

Monogamy was a rule during the Vedic times. However, polygamy was not unknown. The Dharmasutra and Smirits have discussed in detail marriage and polygamy.[7] In the Arthshashtra, Kautilya mentions various rules which discourage wanton polygamy and further provide for compensation to the first wife.[8] Manu also mentions that a man could marry for the second time after the death and while the first wife is alive.[9]

In ancient India, the second wife was subordinate to the first wife. In the fullest sense, the first wife was a “wife.” The first-born son of the first wife enjoyed precedence over his half-brothers.[10] The status of a second wife was of a higher-ranked concubine.

In modern Indian society, the social status of a second wife is still of a concubine or a mistress. It is common to associate derogatory words with a second wife. This social stigma chained to the second wife is also existing in law. Since a bigamous marriage is null and void,[11] a second wife cannot adhere to the definition of ‘legally wedded wife.’ Therefore, in many judgements, the court denied a second wife the right to claim maintenance while the same remedies were available to the first wife.[12] It is humiliating as well as socially discrediting for her. And where she bears a child, it becomes a Herculean task. This has resulted because of the narrow and strict interpretation of the term “wife.”

A second wife suffers the most because of the social stigma. It costs her mental peace, and she is subdued to compromise. Men often trick women into marrying them without disclosing their subsisting first marriage. In such cases, a second wife is left to no recourse. However, there are also cases of connivance i.e., a woman willing marries man with full knowledge of his subsisting first marriage.[13] 

Maintenance under Hindu Adoption and Maintenance Act, 1956

Section 18 of the Hindu Adoption and Maintenance Act, 1956 mandates the husband to maintain his wife during her lifetime. Furthermore, a Hindu wife is entitled to live separately if her husband has “any other wife living.” She does not lose her right to claim maintenance by doing so. However, there is no clear provision for maintenance for a second wife. 

In the case of Narinder Pal Kaur Chawla v S. Manjeet Singh Chawla,[14] the respondent had married the petitioner while he had a living spouse. The petitioner had no knowledge of this. The Delhi High Court observed that the term “wife” has not been defined under HAMA, 1956. Hence, the phrase “any other wife living” could also refer to the first wife i.e., a second wife could live separately without losing her right to claim maintenance. The court added that inclusion of Section 18(2)(d) shows the legislature did not intend to deny a second wife maintenance. A bigamous marriage is barred by law. But it could not be declared immoral to deny maintenance. HAMA cannot be treated as exhaustive regarding maintenance. It is a relief to those traumatized by social ethics and poverty. The court, therefore, treated the petitioner like a legally wedded wife.

In the case of Mangala Bhivaji Lad v Dhondiba Rambhau Aher,[15] the respondent married the appellant when he already had a living spouse. They separated afterwards. The respondent sought an injunction on the appellant representing herself as his wife and visiting his home and office. He also requested that his marriage with the appellant be nullified under Sections 23(a) and (d) of the Hindu Marriage Act, 1955. The appellant pleaded ignorance of the fact. She also sought permanent maintenance for herself and her child under Section 18 of HAMA. The Bombay High Court held the appellant cannot claim maintenance, as the marriage is void. The court observed that under the act, the term ‘wife’ refers to a ‘legally wedded wife.’ It also observed that only the legislature could include a second wife within the meaning of “wife.”

There is no clarity in the provision for maintenance of the second wife. Therefore, a claim of maintenance under Section 18 of the said act lies completely at the discretion of the courts.

Maintenance under Code of Criminal Procedure, 1973

There is no clear provision providing maintenance to the second wife under the CrPC. However, the courts have considered the present question multiple times.

In the case of Ishwar Singh v. Smt. Hukam Kaur,[16] the Allahabad HC revised the Magistrate’s previous order. The court held that the second marriage of the respondent was void, as her first marriage was still subsisting. Therefore, she was not entitled to maintenance. In the case of Savitaben Somabhai Bhatiya v. State of Gujarat and Ors.,[17] the court observed that Section 125 does not protect the interests of a woman “who unwittingly enters a marital relationship with a married man.” The legislature can only undo this inadequacy in law. 

However, the Supreme Court has broadened the scope of Section 125 over time. Therefore, the situation has transformed. 

In the case of Govindrao Ranoji Musale v. Sou. Anandibai and Anr.,[18] the Bombay HC opined that if the term “wife” is strictly interpreted, it should not include a divorced woman as well. In the case of Rameshchandra Rampratapji Daga v. Rameshwari Daga,[19] the Bombay HC declared that a second marriage cannot be declared immoral to deny maintenance to the second wife. In the case of Badshah v Sou. Urmila Badshah Godse & Anr.,[20] the SC gave a wide interpretation to the term “wife.” The SC decreed the respondent was entitled to maintenance under section 125 of CrPC as the appellant had duped the respondent and hidden the information about his subsisting first marriage. The court reasoned 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. Also, if a man tricks a woman into marriage by displaying that he is competent to enter into a marriage with her, he cannot deny maintenance to such a woman later. He cannot be allowed to take advantage of his own wrong. Therefore, a second wife would be treated as a “wife” under the purview of Section 125 of the CrPC.

Proof of Marriage

A marriage between two Hindus is said to be solemnized when all essential practices as listed under the Hindu Marriage Act are performed. Section 7 of the Hindu Marriage Act necessitates the performance of saptpadi.[21] Saptpadi is the practice of taking seven rounds around the holy fire. Additionally, a mere admission of fact cannot be treated as evidence to a second marriage.[22]

In the case of Chanmuniya v. Virendra Singh Kushwaha,[23] the SC held that strict proof of marriage is not necessary for a claim for maintenance under Section 125 of the CrPC. Section 125 CrPC is a provision that ensures social justice.[24] If a man and a woman have cohabited for a sufficiently long time, there arises a presumption of marriage.[25]

Though bigamy is prohibited by law,[26] it is not uncommon in India. Marriage isn’t considered solemnized unless the rituals are performed. Cunning men trick women into believing that proper customs and rituals were observed in their marriage which is not the case. They purposely miss an essential custom so that it can be used as a defence later. Therefore, as previously discussed, by giving a lenient interpretation to Section 125 of CrPC, the Supreme Court has strengthened the position of a woman who may unwittingly enter into a marital relationship with a married man.

Conclusion

It is clear that all the provisions previously discussed are intended to stop bigamy and protect the interests of women. But by not entitling a second wife to claim for maintenance or by blatantly overlooking her interests, the purpose is not served. Rather it promotes abuse of law at the hands of cunning men.

A second wife has been subjected to social stigmas of all kinds since times immemorial. Amidst all this social stigma unclear laws only aggravate the problems of a second wife. A woman who is duped by a man into marrying him is already heartbroken at the betrayal. And then she has to go through all the hassle to claim maintenance. Law lays huge emphasis on a wife’s right to claim maintenance. However, for the longest time, this right was strictly limited to the legally wedded wife or the first wife. A second wife had no legal standing by virtue of a void marriage. It is after many years that the courts have recognized the right of a second wife. 

The Apex Court has broadened the meaning of various provisions to protect the interests of the second wife. A claim for maintenance under Section 125 of CrPC can only stand if a woman has spent “sufficiently long time” with a married man and the fact of his subsisting marriage was unknown to her. Thus, if a woman has entered into a marriage with a man with full knowledge of his subsisting marriage, a claim for maintenance cannot be allowed. It will be interpreted that such a woman had consented to suffer the consequences of a void marital relationship. This is also to differentiate between the real victims who are the first wife and a duped second wife. In a sense, a second wife is considered a legally wedded wife under the said Section.

But, a claim under Section 18 of HAMA, 1956 may fall completely flat. For the purpose of that Section, a second wife may not be considered a legally wedded wife. This creates unnecessary confusion owing to different interpretations by different HCs. 

Another important aspect is the proof of marriage. The courts have given a lenient interpretation to Section 125 of CrPC which certainly protects the interests of a second wife. However, the phrase “sufficiently long time” is very vague and problematic. It can be used against the aggrieved party. In a case where the husband deserted the second wife or lived with her only for a day or week or a month, the wife may lose her claim for maintenance. “Sufficiently long time” is very subjective and will completely depend on the court to decide. And in cases of desertion, this condition may not be fulfilled. It is also important to note that in all the precedents while deciding “sufficiently long time,” the courts took into consideration the fact that a child was born to the couple. Thus, the presence of a child becomes an important factor. So, in a case where no child was born, it may be difficult to establish “sufficiently long time.” However, the time period cannot be fixed. Or else a second wife will be forced to reside with her husband for that fixed time period, bear all the humiliation and torture, to claim maintenance. 

Therefore, the legislature needs to draw specific provisions to safeguard the interests of a second wife. The relevant provisions should be amended to include a second wife in its purview. Clear provision is needed to define the term “second wife-” who will fall within the definition. Accordingly, “second wife” should refer to a woman who has married a man while his first marriage was still in subsistence, without any knowledge of the same under misrepresentation, fraud or under coercion or undue influence. This will make things easy for the courts and the aggrieved party. Furthermore, the legislature should make registration of marriage mandatory. This will add another level of security to not only a second wife but also a first wife. Proving marriage will become very easy if registration of marriage is made mandatory. The purpose of the law is to ensure social justice and eliminate poverty and financial distress. In the absence of proper laws, justice cannot prevail.


[1] Section 24 of Hindu Marriage Act, 1955.

[2] Section 25 of Hindu Marriage Act, 1955.

[3] Section 7 of Hindu Adoption and Maintenance Act, 1956.

[4] Section 125 of Code of Criminal Procedure, 1973.

[5] Section 20 of Protection of Women from Domestic Violence, 2005.

[6] D. Velusamy v Patchaiammal, (2010) 10 SCC 469.

[7] Shalu Bhati, The Concept of Polygamy in India, Law Circa, <https://lawcirca.com/the-concept-of-polygamy-in-the-indian-context/> (last visited on Sept. 21, 2021).

[8] 2 A. L. Basham, The Wonder that was India, 174 (rupa co, 1965).

[9] Rationalist Debashis, manusmriti: a rationalist viewpoint (part 2) <https://rationalistdebashis.wordpress.com/2018/02/02/manusmriti-part-2/ >(last visited on Sept. 21, 2021).

[10] Ramasami Kamaya Naik vs Sundaralingasami Kamaya Naik, (1894) ILR 17 Mad 422.

[11] Section 11 of Hindu Marriage Act, 1955.

[12] Priya Bala Ghosh v. Suresh Chandra Ghosh, (1971) SCR (3) 961; Balbir Singh v. Baljinder Kaur, (2019) SCC OnLine P&H 2144.

[13] Kanwal Ram v. Himachal Pradesh Admn., (1966) 1 SCR 539.

[14] Narinder Pal Kaur Chawla v. Manjeet Singh Chawla, (2004) 9 SCC 617.

[15] Mangala Bhivaji Lad v Dhondiba Rambhau Aher, (2010) 4 Mah LJ 486.

[16] Ishwar Singh v. Hukam Kaur, 1964 SCC OnLine All 187.

[17] Savitaben Somabhai Bhatiya v. State of Gujarat and Ors., (2005) 3 SCC 636.

[18] Govindrao Ranoji Musale v. Sou. Anandibai and Anr., AIR (1976) Bom 433.

[19] Rameshchandra Rampratapji Daga v. Rameshwari Rameshchandra Daga, (2005) 2 SCC 33.

[20] Badshah v Sou. Urmila Badshah Godse & Anr, (2014) 1 SCC 188.

[21] Section 7 of Hindu Marriage Act, 1955.

[22] Yelamanchali Nageswari v. Yelamanchali Venkata Prasada Rao, 1998 SCC OnLine AP 250.

[23] Chanmuniya v. Virendra Singh Kushwaha, (2011) 1 SCC 141; Dwarika Prasad Satpathy v. Bidyut Prava Dixit, (1999) 7 SCC 675.

[24] Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Ors., AIR (1978) SC 1807.

[25] Tulsa and Ors. v. Durghatiya and Ors., (2008) 4 SCC 520.

[26] Section 494 of Indian Penal Code, 1860.

Author

Kiran Singh

Kiran is a second year law student at Chanakya National Law University. She is interested in Criminal Law, Intellectual Property law and Arbitration.

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