The Hindu : National : Only legally wedded wife entitled to maintenance: SC

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Friday, Mar 25, 2005

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Only legally wedded wife entitled to maintenance: SC

By Our Legal Correspondent

NEW DELHI, MARCH 24 . The Supreme Court has held that only a legally wedded wife, and not the woman in second marriage, was entitled to get maintenance from her husband. But the illegitimate children from the second wife are entitled to such maintenance.

A Bench, comprising Justices Arijit Pasayat and S.H. Kapadia, said: "There may be substance in the plea of the appellant that the law operates harshly against the woman who unwittingly gets into relationship with a married man and Section 125 of the Cr. P.C. does not give protection to such woman."

The Bench noted: "The law is fairly well settled regarding the definition of the expression `wife' (under Section 125 Cr. P.C.) and there is no scope for giving an extended meaning to include a woman who is not legally married."

"This may be an inadequacy in law, which only the legislature can undo. But as the position in law stands presently there is no escape from the conclusion that the expression `wife' as per Section 125 Cr. P.C. refers to only the legally married wife."

In this case, a woman claimed that she was married to a person who was already married. A child was born to them and thereafter he deserted her and the child. She claimed maintenance for herself and the child. The trial court awarded maintenance to both.

On a revision petition by the husband contending that she was not his legally wedded wife, the High Court rejected the maintenance for the wife but enhanced the amount granted to the child from Rs. 350 to Rs. 500. She filed the present special leave petition challenging the denial of maintenance to her.

Disposing of the SLP, the Supreme Court Bench said that the marriage of a woman in accordance with the Hindu rites with a man having a living spouse was a complete nullity in the eye of the law and she was therefore not entitled to the benefit of Section 125 Cr. P.C.

The Bench noted that the legislature considered it necessary to include within the scope of the provision an `illegitimate child' but it had not done so with respect to a woman not lawfully married.

However desirable it might be to take note of the plight of the unfortunate woman, the legislative intent being clearly reflected in Section 125 Cr. P.C. there was no room for enlarging its scope by introducing an artificial definition to `wife' to include a woman not lawfully married, the judges said.

It rejected the second wife's claim for maintenance but enhanced the amount granted to the child from Rs. 500 to Rs. 850.

The Bench also gave an option to the husband to pay a one-time lump sum of Rs. 2 lakhs to the child in lieu of the monthly maintenance amount within four months.

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