The Hindu : National : "Wife entitled to maintenance even in illegal second marriage"

Online edition of India's National Newspaper
Tuesday, Dec 21, 2004

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National

"Wife entitled to maintenance even in illegal second marriage"

By Our Special Correspondent

NEWDELHI, DEC. 20. The Supreme Court has held that even in the case of an illegal second marriage, the wife is entitled to maintenance if the husband deserts her.

A Bench, consisting of Justice D.M. Dharmadhikari and Justice H.K. Sema, said:

"A bigamous marriage may be declared illegal but it cannot be said to be immoral so as to deny even the right of alimony or maintenance to a financially weak and economically dependant spouse.

"The facts of this case tell the tragic tale of an Indian woman who, having gone through two marriages with a child born to her, apprehends destitution as both marriages have broken."

The Bench said that it was with the intention of not rendering a financially dependant spouse destitute that Section 25 of the Hindu Marriage Act enabled the court to award maintenance at the time of passing any type of decree resulting in a breach of marriage.

Rejecting the husband's contention that there was no question of permanent maintenance to his second wife as the second marriage was declared null and void, the court pointed out that Section 25 of the Act provided for the grant of maintenance while passing any decree in a matrimonial dispute, including the restitution of conjugal rights, judicial separation, divorce, annulment of a voidable marriage or declaring a marriage null and void.

The Bench said that Section 25 empowered the court in a matrimonial case to consider the facts and circumstances of the spouse and decide whether or not to grant permanent alimony or maintenance.

The husband, Rameshchandra Rampratapji Daga, a widower with three children, had entered into a second marriage in July 1981 with Rameshwari, allegedly a divorcee and a daughter was born to them in July 1983. The relationship later turned sour allegedly and she was forced out of the house in 1989.

After the wife moved a local family court seeking maintenance, the husband filed a counter-petition to declare the marriage null and void on the ground that she had suppressed information on her previous marriage and that it was not dissolved at the time of marriage with him.

The wife, however, said that her first marriage was dissolved in May 1979 in accordance with the customary law prevalent in her community. The husband later denied his second marriage, saying Rameshwari was merely a governess of his children from his first wife. The Family Court, Mumbai, granted her divorce and awarded Rs. 3,000 as maintenance. The High Court, declaring the marriage null and void, however, upheld the award of maintenance. Both filed appeals in the Supreme Court against this order.

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