Madhya Pradesh High Court laments exploitation of women who remarry without divorce

Chambers of Ishaan Garg

Ch. No. 217, Western Wing, District & Sessions Court, Tis Hazari, New Delhi, Delhi 110054

+91 8851742417, +91 8800386163

The Court said that as per the settled law, a woman, who has already been married to another person, cannot be treated as a legally-wedded wife of the second husband without divorce from her first husband.

The Madhya Pradesh High Court recently expressed concern over the "legal loopholes" that prevent a woman, who has married for the second time without divorcing her earlier husband, from claiming maintenance under Section 125 of the Code of Criminal Procedure (CrPC).

Justice Prem Narayan Singh observed that in spite of the "social justice factor" of the provision, its objective gets frustrated in such cases as it fails to prevent the exploitation which it otherwise seeks to prevent.

"This Court finds it unfortunate that many women, specially those belonging to the poorer strata of society, are routinely exploited in this manner, and that legal loopholes allow the offending parties to slip away unscathed and unquestioned," the Court said.

It made the comments while allowing an appeal filed by a man (petitioner) against the revisional court's order directing him to pay ₹10,000 as monthly maintenance to a woman he had allegedly married about 6-7 years ago.

However, the petitioner told the Court that the woman was already married to another person and had three children from that marriage.

It was argued that since she had not taken divorce from her earlier spouse, she was not entitled to maintenance from the petitioner.

Considering the submissions, the Court at the outset noted that as per the settled law, a woman who has already been married to another person, cannot be treated as a legally-wedded wife of the second husband without divorce from her first husband.

"As such, being not legally wedded wife, she cannot claim maintenance from her second husband," said the Court.

On the argument that the Supreme Court has held that the definition of 'wife' under Section 125 CrPC should be interpreted broadly, the Court said in those cases, the woman had not earlier married another person.

While reiterating that a woman is entitled to get maintenance from second husband only when the first marriage has been declared either null and void or she has obtained a divorce decree, the Court said,

"In conspectus of the aforesaid settled proposition, in this petition filed under Section 125 Cr.P.C., the term "wife'' under Section 125 Cr.P.C. envisages a situation wherein she, having a living spouse, cannot seek maintenance from her second husband without getting divorce from her earlier husband. "

Thus, the Court in the present case set aside the order awarding maintenance to the woman.

"While the Court sympathizes with the position of the Respondent (woman), it is constrained to deny her maintenance as per the law of the land which stands as of today," it said.

However, it also clarified that she would be at a liberty to avail other remedies like seeking of compensation under Section 22 of the Domestic Violence (DV) Act.

S v. S (2024 MPHC)