Report No. 178

Position under section 18 of the Hindu Adoptions and Maintenance Act

The position of a Hindu wife whose marriage is void under section 11 of the Hindu Marriage Act does not appear to be better either. Sub-section (2) of section 18 of the Hindu Adoptions and Maintenance Act sets out the grounds upon which a Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance. Section 18 reads as follows:

"18. Maintenance of wife.- (1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime.

(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance,-

(a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or willfully neglecting her;

(b) if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband;

(c) if he is suffering from a virulent form of leprosy;

(d) if he has any other wife living;

(e) if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere;

(f) if he has ceased to be a Hindu by conversion to another religion;

(g) if there is any other cause justifying her living separately.

(3) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she in unchaste or ceases to be a Hindu by conversion to another religion."

It is evident that ground (d) enables a wife to live apart and yet claim maintenance if the husband has any other wife living. It is possible to argue on the basis of the decision of the Supreme Court in Yamunabai referred to hereinbefore that the second marriage being void, clause (d) of section 18(2) is not satisfied even where, as a fact, the second 'wife' is living with the husband. The argument can be that the second 'wife' has not really acquired the status of a 'wife' within the meaning of section 18(2)(d).

This aspect needs to be put beyond doubt even though, it is true, some High Courts have upheld the first wife's claim for maintenance on the ground of second marriage performed after the commencement of the Hindu Marriage Act. Questions may also arise as to the right of the second wife to claim maintenance in certain circumstances where too the husband can seek to non-suit her on the ground that her marriage being void under section 11 read with section 5(i) of the Hindu Marriage Act, she is not a "wife" within the meaning of section 18(2)(d) of the Hindu Adoptions and Maintenance Act. It is necessary to clarify both these aspects consistent with the presentday societal values.

Two questions arise in this behalf, namely, (i) whether a wife (first wife) can claim maintenance on the ground that the husband has contracted a second marriage after the commencement of the Hindu Marriage Act? In such a case, should she be deprived of the right given by section 18(2)(d) on the ground that since such a second marriage is void under section 11 of the Hindu Marriage Act, she cannot invoke clause (d) of sub-section (2) of section 18 of the Maintenance Act, and (ii) whether the second wife whose marriage has taken place after the commencement of Hindu Marriage Act, at a time when the first wife was alive, is entitled to claim maintenance under section 18 of the Maintenance Act?

The argument on behalf of the husband can be the same viz., her marriage being void under section 11 of the Marriage Act, she is not a "wife" within the meaning of section 18(2) of the Maintenance Act.

These two questions may be dealt with separately.

(1) So far as the right of the first/validly married wife to claim maintenance on the ground that the husband has married again after the commencement of the Hindu Marriage Act is concerned, we see no justification to refuse her claim for maintenance on the ground that the second marriage is void in law when, as a matter of fact, she is suffering all the disabilities, humiliations and harassment resulting from such second marriage. We cannot shut our eyes to the reality and continue the suffering 113 of the first wives. The first wife should be held in such a case to be entitled to live apart and yet claim maintenance.

Such a provision would also deter the husbands from marrying again during the lifetime of the first wife. More important, it is not consistent with public policy or interests of society to make the first wife not only suffer the harassment and indignity flowing from the second marriage of her husband but also to disable her from claiming maintenance on the said ground. We are therefore of the opinion that section 18 should be amended and it should be clarified that first wife is entitled to claim maintenance on the ground that the husband has married again after the coming into force of the Hindu Marriage Act.

(2) So far as the right to claim maintenance of a woman who has married a person knowing that he is already married, is concerned, it stands on a different footing. But here again there may be cases where the second wife may have been innocent and has married that person without knowing that he is already married and that his wife is alive. In such cases, the equities are in her favour as pointed out hereinabove while dealing with section 125 of the CrPC.

We are therefore of the opinion, for the reasons mentioned while discussing the position under section 125 CrPC that it is just and equitable to provide that a woman who has married a person, who has already a wife living, without knowing that he is already married and that his wife is living, should be held entitled to maintenance. This would be an instance of advancing gender justice consistent with the principles of fair play and equity. Now so far as the other category is concerned, namely, a woman who marries a person knowing that he is already married and that his 114 wife is living, there can be two opinions: one is that since she has knowingly entered into a void marriage, there is no reason to entitle her to claim maintenance, that too on the ground that the other wife is living. T

he second view may be that in the conditions prevailing today in Indian society, it would not be just to deprive such second wife of maintenance even where she has been deserted or driven out by the husband. May be she is not entitled to claim maintenance on the ground that the other wife is living, yet there may be some equities in her favour if her case falls under clauses (a), (b), (c), (e) and (f) of sub-section (2) of section 18.

On a consideration of the contending points of view we are inclined to accept the second line of thinking and to provide that though a woman, who has married a person knowing that the husband is already married and has a wife living, shall not be entitled to claim maintenance on the ground mentioned in clause (d) of sub-section 2 of section 18, yet she would be entitled to do so on the grounds mentioned in clauses (a), (b), (c), (e) and (f) of the said sub-section. Such a provision would act as a deterrent against the husbands ill-treating or deserting second wives with impunity under the impression that since their marriage is void in law, they can be treated like dirt. This would again be a case of advancing the cause of gender justice consistent with fair play and justice.

Accordingly, the following amendments are suggested to section 18 of the Hindu Adoptions and Maintenance Act, 1956: 115

In the Hindu Adoptions and Maintenance Act 1956, in section 18, in subsection (2),

(i) for clause (d) the following clause shall be substituted , namely:-

"(d) if he has any other wife living, whether the marriage of the other wife had been solemnized before or after the commencement of the Hindu Marriage Act, 1955."

(ii) after clause (g) the following Explanations shall be inserted, namely:

"Explanation.-1 A woman who marries a person without knowing that he is already married and that his wife is living shall, without prejudice to claim maintenance on the ground mentioned in clause (d) , be entitled to live separately from her husband.

Explanation.-2 A woman who marries a person knowing that he is already married and that his wife is living, shall be entitled to live separately from her husband without forfeiting her claim to maintenance on any of the grounds mentioned in clauses (a), (b), (c), (e), (f) and (g)."

So far as other personal laws dealing with maintenance are concerned, the Commission will make a separate report.