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Who Is a ‘Wife’ for The Purposes of Section 125 of The CrPC?

Indian society is termed a patriarchal society. There are many instances from the mythological era where Draupadi was subjected to violence until the recent increase in rape cases and a rise in domestic violence in latest novel coronavirus crises. Law, although, has not totally changed society in the subject of gender justice, but the law has definitely speed up the process of reformation. Section 125-128 of CrPC laid down the provisions for the maintenance of wife, children and parents so long as they are unable to maintain themselves. The article dwells upon the aspect of ‘who is wife contemplated under section 125 of CrPC?’

EXPLANATION OF SECTION 125 OF CRPC:

Section 125 of CrPC provides for the maintenance of wives, children and parents. The provision can be stated as follows:

  1. If any person having sufficient means neglects or refuses to maintain-
  2. His wife, unable to maintain herself, or
  3. His legitimate or illegitimate minor child, whether married or not, unable to maintain itself or

A magistrate of the first class may, upon proof of such neglect or refusal order such person to make monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate as such magistrate thinks fit and to pay the same to such person as the magistrate may from time to time direct….

The explanation attached to sub-section 3 of section 125 of CrPC states that-

“If a husband has contracted marriage with another woman or keeps mistress, it shall be considered to be just ground for his wife’s refusal to live with him.”

Sub-section (4) states that “ No wife shall be entitled to receive an allowance from her husband under this section she is living in adultery, or if, without any sufficient reason, she refuses to live with her, husband, or if they are living separately by mutual consent.

Sub-section 5 states that “ On proof that any wife in whose favour an order has been made under this section is living in adultery or that without sufficient reason she refuses to, living with her, husband, or that they are living separately by mutual consent, the magistrate shall cancel the order.

REASON OF GIVING MAINTENANCE TO WIFE:

The provision has a primary object to give social justice to women and to prevent destitution distribution and vagrancy by compelling a person who can support those persons who are unable to support themselves. This provision intended to achieve social justice.[1] The section seeks to give effect to the natural and fundamental duty of man to maintain his wife, children and parents if they are unable to maintain themselves. [2] In Ranjana Shivaji Rakhpasare v. Shivaji Bapu Rakhpasere[3], the court held that after marriage, the husband has a duty to provide shelter and maintenance to wife. If he neglects, the wife is legally entitled to have it from the court by petition under this section.

Section 125 of CrPC is a secular provision because it overrides personal law also. In Shah Bano Begam V. Mohammad Ahamad Khan( AIR 1985 SC 945) , the Hon’ble Supreme Court held that section 125 was applicable to all irrespective of their religion. Thus it was applicable to Muslim women also.  Its sole objective is to eradicate vagrancy and misery and it is concurring with Article 21 of the Constitution of India, which is the right of every person to live a life of dignity.

MEANING OF ‘WIFE’ UNDER SECTION 125 OF CrPC:

Section 125 of CrPC made provision for the maintenance of the wife. The wife contemplated under this section is only legitimate wife[4]  i.e. only a legally married wife. If a marriage is proved illegal, it cannot give a wife any right to get maintenance. The section applies only to the abandoned wife and not to the abandoned mistress.

The explanation attached to sub-section 1 states that:

“Explanation: For the purpose of this Chapter-

  • “wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.”

The explanation makes it clear that the husband has to pay maintenance to the divorced wife until her remarriage. She must be unable to maintain herself. If she can maintain herself with her own income, then the magistrate may not grant her anything as the power to grant maintenance is discretionary.[5]

Second wife:

Even if the wife is unaware of the previous marriage of her husband, the woman does not acquire the legal status of the wife and not entitled to claim maintenance.[6] The section does not include a wife whose marriage is void. Such a wife is not entitled to maintenance. There are two decisions of the supreme court regarding these provisions are Yamunabai’s case and in Savitaben Sonabhai Bhatia v. state of Gujarat[7].  In Yamunabai’s case, the Hon’ble Apex Court held that the marriage covered under section 11 is void and the court observed that: “the attempt to exclude altogether the personal law applicable to the parties from the consideration also has to be repelled.

The section has been enacted in the interest of a wife, and one who intends to take benefit under sub-section(1)(a) has to establish the necessary condition, namely, that she is the wife of the person concerned. This issue can be decided only by a reference to the law applicable to the parties. It is only where an applicant established her status or relationship with reference to the personal law that an application for maintenance can be maintained.” And Hon’ble Apex Court rejected the appeal holding that the marriage of a woman in accordance with the Hindu rites with a man having a living spouse is a complete nullity in the eye of law and she is not entitled to the benefit of section 125 of CrPC.

In Savitaben’s case, the apex court followed the decision given in Yamunabai’s case and concluded that

“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 of CrPC refers to only legally wedded wife.”

CONCLUSION:

Society changes as per changing time. With the changing time, the definition and concept of marriage have also changed. There are so many youngsters who opt to live in a relationship. In Chanmuniya V. Virendra Kumar Singh Kushwah And Another,[8] the Hon’ble Supreme Court held that since the protection of women from Domestic Violence Act 2005 has given wider interpretation to the meaning of the term “domestic violence” as take it outside the confines of the marital relationship and even includes ‘live-in relationship’ in the nature of marriage within the definition of ‘domestic relationship’ and monetary compensation can be awarded in case of live in a relationship. It should also be done in case of section 125 of CrPC. The legislature should take into consideration the plight of the unfortunate second wife, who was unaware of the first marriage of her husband and amend the section accordingly.

[1] Mani v. Jaykumari, 1988 CrLJ 3708 (3715)(mad)

[2] Nanak Chand v. Chandra Kishore, AIR 1970 SC 446

[3] 2004 CrLJ 145 (150) Bom

[4] Savitaben Somabhat Bhartiya v, State of Gujarat, 2005 CrLJ 2141 (2143)

[5] Ramankutty v. Kalyankutty, 1971 CrLJ 318

[6] Atmaram Tukaram Suradkar v. Trivenibai A. Suradkar, 2005 CrLJ 2057 (2061) Bom

[7] Supra footnote number 4.

[8] Civil appeal no; 8866 of 2009 arising out of SLP (civil) no. 15071 of 2009 d/d 7.10.2010

This Article is Authored by Rashmi Nikam, Fourth-year BLS/LLB Student at Adv Balasaheb Apte College of Law.

Also Read – Constitutional Validity of Section 125 of Criminal Procedure Code

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