If a woman is duped into marriage by a man who is already married, and then deserted, can she claim maintenance for herself and her children?

 

If a woman is duped into marriage by a man who is already married, and then deserted, can she claim maintenance for herself and her children?

Savitaben was married in 1994 according to the customs and rituals of her religion. Her husband treated her well for a while, and during this time she had a child by him. Thereafter, Savitaben was subjected to mental and physical torture by her husband. She also found out that he was having an illicit relationship with a woman named Veenaben. As she and her child were being neglected, Savitaben filed for maintenance before a magistrate, under Section 125 of the Criminal Procedure Code (CrPC).

Her husband took the plea that Savitaben was not his legally wedded wife. That he had been married to Veenaben for 22 years and had two children by her. He produced a voters’ list, ration card, and provident fund records showing Veenaben as the wife. The magistrate granted maintenance to Savitaben and the child.

In appeal, the Gujarat High Court held that Savitaben was not her husband’s legally wedded wife and therefore was not entitled to maintenance. However, the high court increased maintenance for the child from Rs 350 to Rs 500 per month. Savitaben appealed and the matter reached the Supreme Court.

It was argued that Section 125 of the CrPC was intended to protect destitute and harassed women and that the term “wife” should not be given a narrow and rigid interpretation. That fairness and equity demanded an interpretation favouring Savitaben rather than her husband. That the husband had concealed his first marriage and was guilty of fraud and misrepresentation. The submission on behalf of the husband was that the definition of “wife” was well settled and there was no scope for extending its meaning to include a woman not legally married.

The Supreme Court noted that Section 125 of the CrPC provides for maintenance of an illegitimate child but does not include a woman not lawfully married. It observed that this is an inadequacy of the law and operates harshly against a woman who gets into a relationship with a man who suppresses the fact of an earlier marriage. But the court said this lacuna could only be cured by the legislature. The judgment declared that the scope of Section 125 of the CrPC could not be enlarged to include a woman not lawfully married under the expression “wife”. Savitaben was thus denied maintenance. Taking into account the 2001 amendment removing the limit of a maximum of Rs 500 under Section 125 of the CrPC maintenance for the child was increased to Rs 850 per month.

The issue of maintenance for the second wife, under Section 125 of the CrPC, was settled by the above apex court judgment reported as Savitaben Somabhai Bhatiya versus State of Gujarat, AIR 2005 SC 1809. However, entitlement to maintenance in similar circumstances under the Hindu Adoption and Maintenance Act 1956 is the subject of a recent Delhi High Court judgment in the case of Narinder Pal Kaur Chawla versus M S Chawla, 148 (2008), Delhi Law Times 522 (DB).

Narinder Pal Kaur and M S Chawla were married according to Sikh rites and ceremonies in 1977, in Jalandhar. They lived as husband and wife for 14 years in their matrimonial home in Defence Colony, New Delhi. Two daughters were born, in 1981 and 1983. In 1991, Narinder Kaur resumed her studies and decided to finish her BA. In April 1991 she went to Phagwara, Punjab, to take her exams. When she returned, on June 13, 1991, her mother-in-law barred her from the house.

Narinder Kaur had been deserted by her husband. At the time of her marriage, Chawla had professed himself a bachelor. In 1991, when she was barred from the matrimonial home, Narinder learnt, for the first time, that Chawla was already married to Amarjeet Kaur when they were married.

Narinder Kaur filed a criminal case of bigamy against her husband and Chawla was convicted. She filed a petition for maintenance for herself and the children under the Hindu Adoption and Maintenance Act. As courts take a long time deciding petitions, Narinder filed for interim maintenance. Illustrative of the extremely low quantum of maintenance granted by the courts, she was granted interim maintenance of Rs 400 per month. In appeal, it was increased to Rs 700 and finally to Rs 1,500 per month by the Supreme Court.

In 2005, the main petition for grant of maintenance was dismissed by the trial court on grounds that Narinder Kaur Chawla was not M S Chawla’s legally wedded “wife” and was therefore not entitled to file under the Hindu Adoption and Maintenance Act. The trial court held that since Chawla was already married to Amarjeet Kaur, his second marriage to Narinder was void and had no legal validity. Narinder Kaur Chawla filed an appeal in the high court.

It was submitted on behalf of Narinder that it was M S Chawla who had suppressed the fact of his first marriage. It was on Chawla’s representation that he was a bachelor that she married him in 1977. They lived as husband and wife for 14 years. It was in 1991 that she was denied entry to the house and found out that she had been deserted by her husband. It was argued that the husband could not take advantage of his suppression of the first marriage and be allowed to deny Narinder maintenance. That she was not a “concubine” and had married her husband.

The submission on behalf of the husband was that Narinder was not Chawla’s legally wedded wife and so was not entitled to maintenance under the Hindu Adoption and Maintenance Act. The submission relied on the Supreme Court’s earlier judgment in Savitaben’s case where she had been denied maintenance.

The Delhi High Court observed that the husband Chawla had not disclosed the fact of his first marriage, had married Narinder and had maintained a relationship of husband and wife for 14 long years. That during this period his first wife was nowhere on the scene. Narinder Kaur Chawla and M S Chawla had lived as a married couple for 14 years and, to the world at large, she was known as his lawfully wedded wife. Narinder had taken the responsibility of running the household as a housewife, taking care of Chawla as her husband, bearing two children whom she nourished and brought up. The high court observed that, under these circumstances, it was not the intention of the legislation that a woman in Narinder Kaur Chawla’s position should be deprived of the right to maintenance under Section 18 of the Hindu Adoption and Maintenance Act.

The court also observed that interpretation of the expression “wife” by the Supreme Court in the Savitaben case was in the context of maintenance under Section 125 of the CrPC. The apex court judgment did not discuss interpretation of the expression “wife” in the context of Section 18 of the Hindu Adoption and Maintenance Act. It also took note of the observation in the apex court judgment that Section 125 of the CrPC operates harshly against a woman who unwittingly gets into a relationship with a married man.

The high court proceeded to examine the language of Section 18 of the Hindu Adoption and Maintenance Act. It noted that under Clause (d) of Section 18(2) of the Act, a Hindu wife is entitled to live separately from her husband and claim maintenance “if he has any other wife living”. It noted that the provision appeared to clearly imply that even a second wife had the right to claim maintenance.

The Hindu Adoption and Maintenance Act came into force in 1956. The Hindu Marriage Act making a marriage void if either party has a spouse living at the time of marriage was enacted in 1955. The judgment observes that if the second wife, whose marriage is void under the Hindu Marriage Act, were to be denied maintenance, then Clause (d) would not have been included in the Act. If the intention had been to deny maintenance to the second wife whose marriage is void, then the legislation would have specified that Clause (d) of the Act was applicable only to second marriages performed before the enactment of the Hindu Marriage Act of 1955.

The judgment then took note of Clause (f) of Section 18(2) of the Act which entitles a Hindu wife to maintenance if the husband keeps a concubine in the same house or habitually resides with one elsewhere. Observing that use of three distinct expressions -- “wife”, “Hindu wife” and “concubine” -- indicates the higher status to be accorded to a Hindu wife through a second marriage vis-à-vis a concubine and supports the entitlement to maintenance under the Act. The fact of lack of definition of a “Hindu wife” excluding a second wife in the enactment is also resorted to in giving a more purposive interpretation.

Referring to the objective sought to be achieved by enactment of legislation like the Domestic Violence Act and the present Hindu Adoption and Maintenance Act, the court took the view that a bolder interpretation that furthers the intention of Parliament is to be preferred over a narrow one. It observed that denial of maintenance to the second wife under such circumstances would amount to putting a premium on, or rewarding the husband for defrauding the woman by concealing his first marriage. The judgment declared that for the purpose of granting maintenance under Section 18 of the Hindu Adoption and Maintenance Act, women placed in the position of second wife, like Narinder Kaur Chawla, can be treated as legally wedded wives and entitled to maintenance.

To summarise the effect of the two judgments: the judgment of the Supreme Court in the case of Savitaben lays down that despite the husband concealing his first marriage, a second wife cannot be called a “wife” and is not entitled to maintenance under Section 125 of the CrPC. The Delhi High Court judgment lays down that a second wife duped by her husband through concealment of his first marriage can be treated as a legally wedded “Hindu wife” and is entitled to maintenance under Section 18 of the Hindu Adoption and Maintenance Act.