Can a Deceived Second Wife Claim Maintenance?

Urmila Badshah said she had been married to Popat Fapale and divorced him in 1997. From then until 2005 she lived at her parents' house. Badshah then asked for her hand through mediators, pretending to be single. On 10 February 2005, they married at Devgad Temple, situated at Hivargav-Pavsa, according to Hindu rites. Photographs of the marriage were later produced in court.

For the first three months, Badshah cohabited with Urmila and maintained her. Then a woman named Shobha arrived at his house and claimed to be his wife. Urmila was already pregnant. Badshah told her that if she wanted to live with him, she should stay quietly, and otherwise she was free to go back to her parents' house. She stayed. She says he then tortured her mentally and physically under the influence of liquor, doubted that the child was his, and said it should be aborted. When the ill-treatment became intolerable, she went back to her parents.

Their daughter Shivanjali was born on 28 November 2005. Urmila then filed an application under Section 125 CrPC before the Judicial Magistrate First Class, claiming she was Badshah's wife and Shivanjali was his daughter. Badshah denied any matrimonial alliance on 10 February 2005 and denied cohabitation. He also denied being Shivanjali's father and accused Urmila of trying to blackmail him. He said he had married Shobha on 17 February 1979, had two children with her, and that she had lived with him ever since.

The trial court found that Badshah was married to Shobha and had two children. It also found that he intentionally suppressed this fact when he married Urmila, and that he cohabited with her as his wife. It awarded Urmila Rs.1,000 per month and Shivanjali Rs.500 per month. The revisional court (the Additional Sessions Judge) and the Bombay High Court at Aurangabad upheld the award. The Supreme Court called these concurrent findings of fact, with no blemish or perversity.

Before the Supreme Court, Badshah disputed his liability to Urmila only, not to his daughter. His lawyer argued that Section 5(1)(i) of the Hindu Marriage Act, 1955 prohibits a second marriage while the first subsists. On that footing, he said, the 2005 marriage was void and Urmila was not a legally wedded wife entitled to apply under Section 125 CrPC. He relied on Yamunabai Anantrao Adhav v. Anantrao Shivram Adhay and Savitaben Somabai Bhatiya v. State of Gujarat (2005). Those cases held that a Hindu woman who marries a man with a living, lawfully wedded wife cannot be treated as his legally wedded wife for Section 125. He also pointed to Explanation (b) to Section 125, which mentions "divorce" as a category of claimant, to argue that only a legally wedded wife can claim.

Two other decisions pulled the other way. Dwarika Prasad Satpathy v. Bidyut Prava Dixit (1999) held that Section 125 is a summary remedy and that the standard of proof of marriage is not as strict as in a trial for bigamy. It also held that if the claimant shows she and the man lived together as husband and wife, the court can presume they are legally wedded spouses. The party who denies the marital status can rebut that presumption. The Supreme Court noted that Dwarika Prasad was not a second-marriage case. Chanmuniya v. Virendra Kumar Singh Kushwaha (2011) said "wife" should be given a broad and expansive interpretation. Chanmuniya also sent three questions to a larger bench, and Badshah asked the Court to tag his case with it. The Court had to decide whether the full-knowledge cases and the broad-reading cases could be reconciled.

The Court dismissed Badshah's petition. It refused to tag the case with Chanmuniya because the marriage between Badshah and Urmila had been proved, unlike the long-cohabitation situation in Chanmuniya. Badshah had also duped Urmila by suppressing his first marriage, so he could not take advantage of his own wrong. The Court held that the Adhav and Savitaben judgments apply only where a woman married a man with full knowledge of the first subsisting marriage. It said they do not apply where a man marries a second time by keeping the woman in the dark, and that this is the only way the two sets of judgments can be reconciled and harmonized.

• Loophole one: A man could no longer plead that his own concealed first marriage makes the second marriage void and so shut out the woman he deceived. For Section 125 she is treated as his wife.
• Loophole two: Adhav and Savitaben could no longer be read as covering a woman who was kept in the dark. The Court confined them to women who knew of the first subsisting marriage. It also read Section 125 purposively, as a social-justice provision for destitute wives and children.

On the daughter, the Court said that Shivanjali is proved to be Badshah's daughter, so "in no case he can shun the liability and obligation to pay maintenance to her."

• Gather proof of the second marriage and the concealment. Keep the marriage photographs, the date and place of the ceremony, and proof of living together afterwards. Urmila's case was built on photographs of the 10 February 2005 ceremony at Devgad Temple. It also rested on the finding that Badshah intentionally suppressed his first marriage. If you were previously divorced, keep that record too, since Urmila's 1997 divorce from her first husband was an established fact in her case.
• Approach the Judicial Magistrate First Class. Urmila filed her Section 125 application there. Her revision went to the Additional Sessions Judge and then to the High Court. State the date and place of the marriage and the allegation that the husband hid a subsisting first marriage. The Court described Section 125 proceedings as summary in nature. It also quoted Dwarika Prasad for the point that an order under Section 125 does not finally determine the parties' rights.
• Do not assume the void-marriage argument ends the claim. Badshah argued that his first marriage made the second one void and that Urmila therefore could not apply. The Court rejected this because he had kept her in the dark. It applied the opposite result only to a woman who married knowing of the first marriage.
• For the child, prove the father's identity. Shivanjali's claim succeeded because she was proved to be Badshah's daughter, and he could not escape his obligation to her.