Whether second wife is entitled to get maintenance when her husband has performed marriage with her by concealing first marriage?

 In view of recording a specific finding that applicant No. 1 is not legally wedded wife and is second wife of the respondent, in view of the provisions of Section 125 of the Criminal Procedure Code, applicant No. 1 Prayagbai is disentitled to claim the maintenance.

 In so far as reported decisions are concerned, those are not helpful to the learned counsel for the applicants, because the facts of those cases are altogether different.

In so far as the authoritative pronouncement of the Apex Court is concerned, in the said case the Apex Court has specifically observed that the wife in the said case was married with the husband and at that time the factum of his first marriage was concealed from the wife, and therefore, she married with the husband. In that context, the Apex Court has observed that merely because she is second wife, that itself will not disentitle her to claim maintenance, especially when the husband contracted marriage with her by concealing the fact of his first marriage.

From the pleadings, evidence and also from hearing, it is clear in the case at hand that it is not the claim of Prayagbai that she was required to marry with Raghunath since the fact of his first marriage was concealed by Raghunath. Hence, said ratio is not applicable in the present case.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AURANGABAD
CRIMINAL REVISION APPLICATION NO.  32 OF 2002
Sau. Parighabai w/o Raghunath Jadhav,
  
VERSUS

Raghunath tatyaba Jadhav,
  



CORAM  :  V.M.DESHPANDE, J.
                DATED   :  13   January, 2015
  Citation: 2015ALLMR(Cri)1043

By   the   present   Revision,   the   applicants   are 

questioning the correctness of the order, passed by the leaned 
Judge, Family Court, Aurangabad, dated 28.12.2001, by which 
the learned Judge allowed the Petition No. 869 of 2001 filed by 
the present respondent and thereby cancelled the maintenance 
granted to the present applicant no.1 in Petition No. E­266 of 
I have heard Shri V.S.Bedre, learned counsel for the 

2]
1997 on 6.8.1998.
extenso. 
The   facts   giving   rise   to   the   present   Revision   can 
3]
applicants and Shri Mujtaba, learned counsel for respondent in 
succinctly be described herein below.
The applicant no.1 Prayagbai claims that she is wife 
of   respondent   Raghunath.     Undisputedly,   they   were   blessed 
with applicant no.2 and applicant no.3.
4]
In   the   year   1997,   an   application   was   moved   by 
applicant no.1 for grant of maintenance under Section 125 of 
the   Code   of   Criminal   Procedure   before   the   Family   Court, 
Aurangabad.   The   said   application   was   registered   as   Petition 
No. E­266 of 1997.
Said Petition was allowed by the learned Judge of the 
Family Court on 6.8.1998, thereby directing the respondent to 
pay   Rs.300/­   per   month   by   way   of   maintenance   to   applicant 

5]
no.1 Prayagbai.
In the year 1999, another Petition under Section 125 
of the Criminal Procedure Code was moved by applicant no.2 
and applicant no.3, the children, before the Family Court.  The 
said petition was registered as Petition E­335 of 1999 and on 
5.10.1999   the   learned   Judge   allowed   the   said   petition   and 

granted monthly maintenance of Rs.150/­ in favour of applicant 
6]
no.2 and Rs.100/­ in favour of applicant no.3.
By passage of time, the applicant no.1 thought it fit to 
move an application for variation of the maintenance amount in 
order to meet her day to day needs, and therefore, she filed a 
joint   petition   for   herself   and   also   for   children   Savita   and 
Ramdas under Section 127 of the Code of Criminal Procedure 
before the Family Court which was registered as Petition E­476 
of   2001.  
  The   application   was   opposed   by   the 
respondent/husband.
7]
Not only the application for revision of maintenance 
was   opposed   by   the   husband,   but   respondent/husband 
independently   filed   an   application   for   cancellation   of   the 
maintenance granted in favour of applicant no.1 Prayagbai way 
back in the year 1998.   The said application was registered as 
Petition No. ER­869 of 2001.

8]

It was contended on behalf of the husband before the 
Family Court that subsequent to the order passed by the Family 
Court   granting   maintenance in  favour  of Prayagbai,  applicant 
nos. 2 and 3 filed Civil Suit for partition against the respondent, 
their father in the court of Civil Judge, Senior Division, Vaijapur. 
It was registered as Regular Civil Suit No. 267 of 1997.  One of 
the   issue   in   the   said   suit   was   regarding   marital   status   of 
applicant no.1.  The said suit was dismissed by the competent 
civil court.   However, in the said suit, a finding was recorded 
respondent.
that applicant no.1 Prayagbai is not legally married wife of the 
9]
The learned Judge of the Family Court decided both 
the applications filed on behalf of the applicant no.1 as well as 
the   respondent   under   Section   127   of   the   Code   of   Criminal 
Procedure   and   by   common   order,   dated   28.12.2001   rejected 
the claim of the applicant no.1 for enhancement in  Petition No. 
E­476   of   2001,   however,   the   learned   Judge   enhanced   the 
maintenance   for   applicant   nos.   2   and   3,   directing   the 
respondent   to   pay   monthly   maintenance   of   Rs.350/­   to 
applicant no.2 Savita and Rs.300/­ to applicant no.3 Ramdas 
from  the   date   of  the order.   However, at the same time, the 
learned Judge allowed the petition filed on behalf of husband 
bearing   No.   869   of   2001   and   thereby   cancelled   the 
maintenance granted in favour of applicant no.1 Prayagbai on 

10]
6.8.1998.
It   is   to   be   noted   that   respondent/husband   has   not 
questioned   the   enhancement   of   the   maintenance   granted   in 
favour of applicant nos. 2 and 3.
With   his   usual   submissive   approach,   the   learned 
11]

counsel Shri Bedre submitted that in any case the maintenance 
granted in favour of applicant no.1 ought not to have cancelled 
by the learned Judge of the Family Court merely because she is 
the   second   wife   of   the   respondent.     In   order   to   buttress   his 
point, he has relied upon two reported decisions.
(1)1988 (1) Bom.C.R. 178 
[Radhabai   w/o   Govinda   Bhise   vs   Govinda   s/o   Totiji 
Bhise and anr.]
(2) (2014) 1 SCC 188
[Badshah vs Urmila Badshah Godse and anr.]
and submitted that the order passed by the Family Court needs 
to be set aside.
12]
After having heard both the counsel, it is clear that a 
specific issue was framed in Regular Civil Suit No. 267 of 1997 
in respect  of the marital status of Prayagbai and the learned 
Civil   Judge,   Senior   Division,   Vaijapur   passed   a   decree   and 
dismissed the suit.  What is important is the finding recorded in 
the   said   suit   in   respect   of   marital   status   of   Prayagbai.     The 

learned  Civil Judge specifically recorded that Prayagbai is not 
a legally wife of the respondent.  Further, Shri Bedre has fairly 
stated   that   the   appeal   carried   against   the   said   decree   is 
dismissed   by   the   appellate   court,   confirming   the   said   decree 
and as such it has attained the finality.
In view of recording a specific finding that applicant 
13]
no.1   is   not   legally   wedded   wife   and   is   second   wife   of   the 
respondent,   in   view   of   the   provisions   of   Section   125   of   the 
Criminal   Procedure   Code,   applicant   no.1   Prayagbai   is 
disentitled to claim the maintenance.
14]
In so far as reported decisions are concerned, those 
are   not   helpful   to   the   learned   counsel   for   the   applicants, 
because the facts of those cases are altogether different.  
In  so far as the authoritative pronouncement of the 
Apex Court is concerned, in the said case the Apex Court has 
specifically observed that the wife in the said case was married 
with   the   husband   and   at   that   time   the   factum   of   his   first 
marriage   was   concealed   from   the   wife,   and   therefore,   she 
married with the husband.   In that context, the Apex Court has 
observed that merely because she is second wife, that itself will 
not   disentitle   her   to   claim   maintenance,   especially   when   the 
husband contracted marriage with her by concealing  the fact of 
his first marriage.  

From the pleadings, evidence and also from hearing, 
it is clear in the case at hand that it is not the claim of Prayagbai 
that she was required to marry with Raghunath since the fact of 
his first marriage was concealed by Raghunath.   Hence, said 
ratio is not applicable in the present case.
In   so   far   as   the   reported   decision   of   this   court   is 
concerned, the facts of the said case clearly show that the first 
wife Gangubai in the said case was minor and at the time of 
marriage she did not attain puberty.   In spite of that, husband 
Govinda married with her and subsequently before she attained 
puberty, he married with petitioner Radhabai in the said case. 
Therefore, on the facts, it is clear that when Govinda married 
with   Gangubai  at  that time Gangubai  was  minor  and did not 
attain puberty.  Therefore, the said marriage was void marriage 
and though during the subsistence of the said marriage, if the 
husband   married   with   Radhabai,   Radhabai   will   be   legally 
married wife is the dictum given by the learned Single Judge of 
this court in the year 1988.   
Therefore, the said case is also not applicable in the 
present case.
15]
The learned Judge of the Family Court has bestowed 
the   thoughtful  consideration  to  every  aspect  of  the case   and 
has correctly reached to the conclusion that in view of the fact 
that Prayagbai is the second wife and she was legally married 

with Raghunath she is disentitled to claim maintenance.  Since 
the said aspect was decided after grant of maintenance in the 
year 1998, he was entitled to demonstrate either to vary, cancel 
or enhance the maintenance.  This aspect is also considered by 
the learned Judge of the Family Court.
The upshot of the afore said discussion leads me to 
pass the following order :­
16]
The   Revision   must   fail   and   it   is   accordingly 
discharged. 
      
dismissed,   however,   with   no   order   as   to   costs.     Rule 
[V.M.DESHPANDE, J.] 

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