A woman can claim maintenance from her second husband under Section 125 of the Criminal Procedure Code, even if her first marriage was not legally dissolved, the Supreme Court has said. The court said that a woman can seek maintenance from her second husband even if she and her first husband only separated but did not legally take a divorce, LiveLaw reported.
A bench of Justices BV Nagarathna and Satish Chandra Sharma granted relief to the woman, who challenged the Telangana High Court’s order to deny her maintenance from her second husband, because her marriage with the first husband was not legally dissolved.
“It must be borne in mind that the right to maintenance under 125 CrPC is not a benefit received by a wife but rather a legal and moral duty owed by the husband,” the bench said.
The woman had married the second husband despite not formally divorcing from her first husband. The woman lived with her first husband, had a child, and later got separated due to matrimonial disputes. The second husband was aware of the woman’s first marriage.
Following the separation from the second husband, the woman then sought maintenance, which was allowed by the family court, but later set aside by the High Court since her first marriage was not legally dissolved.
The second husband opposed the woman’s plea for maintenance, arguing she did not consider her as his wife since she had a legally subsisting marriage with her first husband, according to LiveLaw.
The woman contended that the term ‘wife’ under Section 125 CrPC should be interpreted broadly to include women in void marriages, especially in cases when the second husband was aware of the first marriage, and that the wife had separated from her first husband.
The Supreme Court said the second husband could not make an excuse to deny her maintenance since he was aware of her first marriage, which was not legally dissolved, and he married her twice, LiveLaw reported.
“Two other pertinent facts must be considered: firstly, it is not the case of the respondent (second husband) that the truth was concealed from him. In fact, the family court makes a specific finding that respondent was fully aware of the first marriage of the woman. Therefore, the respondent knowingly entered into a marriage with Appellant No 1 (woman) not once, but twice,” LiveLaw quoted the top court bench.
“Secondly, Appellant No 1 places before this court an MoU of separation with her first husband. While this is not a legal decree of divorce, it also emerges from this document and other evidence that the parties have dissolved their ties, they have been living separately and Appellant No 1 is not deriving maintenance from her first husband,” it said.
“Therefore, barring the absence of a legal decree, Appellant No 1 is de facto separated from her first husband and is not deriving any rights and entitlements as a consequence of that marriage,” the bench noted.