Report No. 178
15. Section 125 of the Code of Criminal Procedure, 1973-
Section 125 of the Criminal Procedure Code provides for maintenance of wife, children and parents, who cannot maintain themselves. The maintenance is allowed under section 125 which reads as under:
"125. Order for maintenance of wives, children and parents.- (1) If any person having sufficient means neglects or refuses to maintai.-
(a) his wife unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or from the date of the application for maintenance."
This, maintenance can only be claimed by a female who is a wife or who has been divorced or has obtained divorce from her husband or is legally separated and is not remarried. The pith and substance of the section is that a woman is entitled to maintenance only if she is or has been legally married to the respondent.
There have been many cases where the man misrepresents to the girl that he is unmarried or is divorced or is widowed and goes through the formalities required by Hindu Marriage Act or the custom governing him. Subsequently, when the woman finds out that she was misled into marriage by false representation, she cannot even claim maintenance. Because she 107 has to be legally married before she is entitled to maintenance under section 125, her claim for maintenance fails.
It is relevant to note section 5 of the Hindu Marriage Act of 1955 which lays down the conditions for a lawful marriage. Clause (i) in the section requires that "neither party has a spouse living at the time of marriage" and under section 11, a marriage solemnized contrary to the said requirement, after the Act came into force, is null and void.
In view of this legal position, the Supreme court has held that even if a woman is cheated into a marriage, she is not his lawful wife as the earlier marriage subsists and, therefore, she is not entitled to maintenance (see Yamunabai v. Anantrao, 1988 (1) SCC p.530). The Supreme Court, while dismissing the appeal of Yamunabai, held that the marriage was void and, therefore, she was not entitled to any maintenance observed as follows:
"It is also to be seen that while the legislature has considered it advisable to uphold the legitimacy of the paternity of a child born out of a void marriage, it has not extended a similar protection in respect of the mother of the child. The marriage of the appellant must, therefore, be treated as null and void from its very inception."
The Supreme Court further observed that:
"The legislature decided to bestow the benefit of the section even on an illegitimate child by express words but none are found to apply to a de facto wife where the marriage is void ab initio."
The court held further that even if the second wife was unaware, at the time of her marriage that husband was already married and has a wife living, even then she cannot claim maintenance under section. 125
The Hindu Marriage Act while not giving protection to a female who enters into a wedlock on the basis of a misrepresentation does give legitimacy to the children born out of void or/and voidable marriages. By an amendment effected in 1976, section 16 was amended to read as under:
"16. Legitimacy of children of void and voidable marriages.- (1) Notwithstanding that a marriage is null and void under section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage is held to be void otherwise than on a petition under this Act."
(sub-sections (2) and (3) omitted as unnecessary)
Similarly, clause (b) of section 125 of CrPC entitles illegitimate children a right of maintenance as mentioned above. 109
Since the illegitimate children are entitled to maintenance, it is reasonable to say that their mother who though not legally married but has been a de facto wife should also be allowed to claim maintenance. Such amendment apart from protecting the victim of false representations would also deter a man from making false representations about his marital status.
It is, therefore, in section 125, sub-section (I), in the Explanation, in sub-clause (i) of clause (b), after the words "and has not remarried" the following shall be inserted, namely:-
"or whose marriage is void under section 11 read with sub-section(1) of section 5 of the Hindu Marriage Act, 1955 or under clause (a) of section 4 read with section 24 of the Special Marriage Act, 1954 or under section 4 of the Parsi Marriage Act, 1936, or under any other provision contained in any enactment corresponding to the aforesaid provisions as may be notified by the Central Government in this behalf, and has not remarried."