The Karnataka High Court has held that a woman, who entered into a second marriage with a man whose first marriage was still subsisting, cannot claim maintenance under Section 125 of the Code of Criminal Procedure where there is no specific pleading or evidence that the husband fraudulently concealed the subsisting first marriage from her.

Justice Geetha K.B. of the Karnataka High Court at Dharwad bench made the observation while dismissing a revision petition filed by a woman challenging the Family Court’s rejection of her maintenance claim.

Woman Claimed Marriage with Respondent in 2018

The petitioner/wife claimed that she married the respondent/husband on July 1, 2018, and lived with the respondent for eight days after the marriage and alleged that he subjected her to cruelty, including locking her inside the house and preventing her from opening the windows.

She thereafter sought maintenance on the ground that she was unable to maintain herself.

The respondent/husband, however, disputed the claim. He contended that his earlier marriage with had been dissolved by a decree dated March 31, 2015, but that decree had subsequently been stayed by a Division Bench of the High Court in an appeal.

According to him, his first marriage therefore continued to subsist when the petitioner claimed to have married him in 2018.

Family Court rejects maintenance plea

The Family Court dismissed the maintenance petition, holding that the decree dissolving the respondent’s first marriage had been stayed and, consequently, that marriage continued to subsist.

It further found that the petitioner had married the respondent despite being aware of the relevant circumstances and therefore was not entitled to maintenance. The woman challenged this finding before the High Court.

Her counsel argued that she was unaware of the stay order and that the respondent had suppressed the fact. It was also submitted that she was highly qualified but was not employed and that the respondent had prevented her from working while they lived together.

Was the first marriage fraudulently concealed? : HC examines

The High Court framed, among other issues, whether the petitioner had established that she was the respondent’s wife and whether the respondent had married her by suppressing the stay order in the appeal concerning his first marriage.

The Court noted that strict proof of marriage is not required while deciding a maintenance claim under Section 125 CrPC. However, the petitioner herself claimed that her marriage had taken place according to Hindu rites and customs, but no Saptapadi was performed.

The Court also examined her own testimony regarding the circumstances surrounding the respondent’s earlier marriage. She had stated that before marrying him, she had examined the divorce judgment and came to know that he was a divorcee. She nevertheless claimed that she did not know that the decree had been stayed.

The High Court noted that the petitioner was a Ph.D. holder and had previously worked as a lecturer, observing that she was not an illiterate person and was “worldly wise”.

"When once it is brought to the knowledge of petitioner that respondent is a divorcee, the diligent person will make efforts to verify the genuineness of said factum; whether any appeal against the said order is filed, pending or not" the Court further stated.

No specific pleading of fraudulent concealment

A crucial factor for the Court was the absence of any specific assertion by the petitioner that the husband had fraudulently concealed the pending appeal or stay order.

The Bench observed that even after the respondent raised the issue of the pending appeal, the petitioner had not pleaded in her petition or affidavit that he had married her by suppressing the stay order.

The Court therefore held that where the first marriage was still subsisting, the respondent was not supposed to marry the petitioner. But the question of maintenance depended on whether the statutory and factual circumstances recognised in the relevant precedents were established.

Supreme Court’s Badshah Ruling Distinguished

The petitioner had relied upon the Supreme Court’s judgment in Badshah v. Urmila Badshah Godse. In that case, the Supreme Court had held that where a husband fraudulently conceals his existing marriage from a second wife, he cannot subsequently rely upon the invalidity of the second marriage to deny her maintenance under Section 125 CrPC.

The Court had applied a purposive interpretation of the maintenance provision so that a husband could not take advantage of his own wrong.

The Karnataka High Court also considered an Allahabad High Court judgment in Smt. Monika Alias Satyawati v. State of U.P., where maintenance had been allowed because the husband had fraudulently concealed his subsisting first marriage.

However, the Karnataka High Court found that those cases were materially different. The Bench specifically noted: "In both the aforesaid cases, the factum of first marriage was concealed fradulently at the time of second marriage by the husband. However, that is not the situation in the present case."

Since there was no specific contention by the petitioner regarding suppression of the relevant facts, the Court found no reason to interfere with the Family Court’s order.

The High Court accordingly dismissed the revision petition filed under Section 19(4) of the Family Courts Act, 1984, and declined to interfere with the Family Court’s rejection of the maintenance claim.

Case title - ASH v SH

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