Right of Maintenance to a Wife of Void Marriage. NRIs Need to Know!

· Badshah vs Sou. Urmila Badshah Godse & Anr on 18 October, 2013 SC

· Rameshchandra Rampratapji Daga vs Rameshwari Rameshchandra Daga on 13 December, 2004 SC

· Savitaben Somabhai Bhatia Vs. State of Gujarat SC

· Shabana Bano Vs Imran Khan 2010 SC

· Shamina Farooqui Vs Shahid Khan 2015 SC,

The Code of Criminal Procedure, 1973 is a secular legislation, that means it is applicable irrespective of the religious belief, unlike Hindu Marriage Act, 1955, Hindu Adoption and Maintenance Act, 1956 and Muslim Women (Protection of Rights on Divorce) Act, 1986 etc. The objective of section 125 CRPC is to prevent vagrancy and destitution in the Indian society. Section 125 CrPC is in line with Article 39 of the Indian Constitution read with Article 15(3) of the Indian constitution. Equity, justice, good conscience and fairness is the undercurrent of section 125 CrPC. In the case of Savitaben Somabhai Bhatia Vs. State of Gujarat, Hon’ble Supreme Court opined that section 125 CRPC is applicable on valid marriages only, irrespective of the fact whether marriage is subsisting or has ended in divorce. If divorce has taken place, then it is mandatory that the wife should not have remarried. However, extreme rigid proof of a valid marriage is not required. The wife should be able to prove three things i.e.

a) she has no means to sustain,

b) husband has the means to sustain and

c) husband has refused to maintain her. However, adopting a purposive interpretation, the Hon’ble Supreme Court in the case of Badshah vs Sou. Urmila Badshah Godse & Anr extended the benefit of section 125 CRPC to the wife of void marriage. This was done because if the petition of 125 CrPC was declined, then it would have indirectly rewarded the malicious and atrocious actions of the husband on the wife. Similarly, in the case of Rameshchandra Rampratapji Daga vs Rameshwari Rameshchandra Daga the Hon’ble Supreme Court extended the benefit of section 25 of Hindu marriage act, 1955 to the wife of void marriage, which otherwise is applicable only on wife of valid marriage. The broad structure and spirit of both the aforementioned decisions is the same. It is important to note that in excepted cases only the benefit of section 125 CrPC is extended to the wife of void marriage. In Muslim personal law, there is a specific legislation that is Muslim Women (Protection of Rights on Divorce) Act, 1986. Under this Act, only the wife of Valid Marriage (Sahih Nikah) who have been divorced can claim maintenance. During subsistence of marriage she may move under section 125 CrPC for maintenance to the family court. However, after the decision of Shah Bana Bano Vs Imran Khan 2010 SC and Shamina Farooqui Vs Shahid Khan 2015 SC, the Muslim wife of a valid marriage (Sahih Nikah) who has been divorced may move the family court under section 125 CRPC for the claim of maintenance instead of proceeding under Muslim Women (Protection of Rights on Divorce) Act, 1986. The Muslim wife of void marriage may adopt the purposive interpretation in the case of Badshah vs Sou. Urmila Badshah Godse & Anr to claim maintenance. This is because section 125 CRPC is a secular legislation and the main objective is to curtail vagrancy and destitution among the females.