Whether second wife can claim family pension after death of husband?

The reasoning given by the Division Bench is consistent with the
other   provisions   of   law   as   mentioned   above   wherein   the   second
marriage   is   held   void.     The   Indian   legal   system   has   adopted
monogamy   as   a   legal   structure   of     the   marriage   institution   and,
therefore, occasional fractures of second marriage in subsistence of
first marriage are held void in law.   The second woman cannot be
given a status of  a legally wedded wife and, as rightly observed by
the Division bench, she is not a widow in true and legal sense.   A
wrong may exist in the Society on a large scale, however it cannot be
justified as a righteous custom because of its magnitude.  In order to

buttress this point, it will not be out of place to give example of give
and take of dowry which throws light on the wide gap between the
legality and the reality.  To take lenient view towards the wrong doers
is contrary to law laid down by the legislature.  Thus, gap should not
be widened by the decision of the Court but it is to be bridged. It is
mandatory for the Court to interpret a law which gives true effect to
the legislative intent.   The Division Bench in the case of  Chanda
Hinglas   Bharati  has   referred   to   the   relevant   provisions   under
different acts regarding the consequences of second marriage and the
status of second woman.  
38. It was argued by the learned counsel for the respondent that a
second wife was deceived by deceased husband and she begotten a
daughter from the deceased and therefore, it is necessary for the
Court to take a gender protectionist view and grant her pension. This
argument of the learned counsel for the respondent is one sided and
may appear convincing superficially, but it does not stand to reason
after close scrutiny.   The Courts have empathy for a woman who is
deceived by a man, however, she may take recourse under the other
enactments for redressal.  So far as husband is a Government servant

and matter is covered under the rules, then the Court cannot take
other view than permissible in law. The Division Bench in the case of
Chanda Hinglas Bharati has made a reference to similar argument
and has rightly observed that “showing sympathy to a woman like the
petitioner would result in depriving a legitimate wife of her right to
receive full family pension.  This is the gender positive view towards
the legally wedded wife.  The case of second wife may be unfortunate
but I am of the view that Court cannot pass verdict in her favour.
While doing justice, injustice should not be caused to a person having
a rightful claim. 
39. Thus, I fully rely on the ratio laid down in the case of Chanda
Hinglas Bharati and hold that marriage contracted with second lady
in subsistence of first marriage or spouse is living, then second lady
from   the   Hindu/Christians   cannot   claim   as   a   widow   entitled   to
pension   subject   to   personal   law   or   as   stated   in   Rule   26   of
Maharashtra Civil Services (Conduct) Rules.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.577 OF 2015
WITH
CIVIL APPLICATION NO.1770 OF 2015

Draupada @ Draupadi Jaydeo Pawar  vs.  Indubai d/o. Kashinath Shivram Chavan

CORAM : MRS.MRIDULA BHATKAR, J.

 Dated  : 10th FEBRUARY, 2016
Citation: 2017(1) ALLMR197

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Whether woman who is previously married can claim maintenance from her subsequent husband?

 On the other hand, Mr. Anand Sharma, counsel
representing the petitioner stated that it stands proved on
record that petitioner had been residing with the respondent
for more than 25 years and during this period, they had
developed physical relationship and she had given birth to
four kids and as such respondent is liable to maintain her as
his wife. But as has been observed above, petitioner has not
placed on record any evidence to suggest anything, which
could compel this Court to infer that she is the legally
wedded wife of the respondent strictly in terms of Section 125
Cr.PC, which would have made her entitled to have
maintenance allowance. In support of this contention, Mr.

Sharma placed reliance on Badri Prasad v. Dy. Director of
Consolidation and Ors, AIR 1978 SC 1557, D.Velusamy v.
D.Patchaiammal, AIR 2011 SC 479 and in Indra Sarma v. V.K.V.
Sarma, AIR 2014 SC 309. Perusal of the aforesaid judgments, as
has been relied upon by Mr. Anand Sharma, in support of his
contention clearly suggests that if a man and woman living
as husband wife for about 15 years or more, there is strong
presumption that there is wedlock. There cannot be any
dispute with regard to the aforesaid observations returned by
the judgments to the effect that since petitioner has been
cohabiting with the respondent for a long time, a
presumption can be drawn that there is a wedlock. But in
the present case, when a maintenance is being claimed
under Section 125 Cr.PC, aforesaid proposition may not be of
any help to the petitioner, especially, in the law laid down by
the Hon’ble Apex Court in Yamuna Yamunabai Anantrao
Adhav v. Anantrao Shivram Adhav and Anr. (1988) 1 SCC 530
whereby, it has been specifically held that expression ‘wife’
used in Section 125 Cr.PC, should be interpreted to mean
only a legally wedded wife. Though, it stands proved in the

present case that petitioner has been residing with the
respondent for last more than 25 years and gave birth to four
kids, who are admittedly born out of the lions of the
respondent but in the facts and circumstances of the case,
petitioner has miserably failed to prove that she is a legally
wedded wife of the respondent. Hence, she cannot be held
entitled to maintenance in terms of Section 125 Cr.PC. In the
present case, respondent has been successful in proving that
the petitioner is not a legally wedded wife of the respondent
as earlier marriage was in subsistence in year 1987, when as
per her own version, she-petitioner had actually started living
with the respondent. It is also proved on record that Mast
Ram husband of the petitioner was alive till 1995 which
undisputed fact persuaded this Court to take a view that the
present petitioner cannot be termed as legally wedded wife
of the respondent, which is a strict requirement of Section 125
Cr.PC as has been held by the Hon’ble Apex Court in the
case Supra. 
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No.129 of 2007.
 Date of Decision: 7.5.2016.

Kamla Devi 
V
Uttam Chand 
Coram
Hon’ble Mr. Justice Sandeep Sharma, Judge.
Citation:2016 ALLMR(CRI)JOURNAL542

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Whether husband can refuse to pay maintenance to wife on ground that she is not his legally wedded wife?

It is an admitted case that Parminder Kaur alias Sukhpreet
Kaur was earlier married to one Mander Singh and which marriage the
wife claims was dissolved by customary decree through Panchayat and
thereafter Parminder Kaur alias Sukhpreet Kaur entered into a wedlock
with Harpal Singh alias Gurpal Singh respondent out of which applicant
No.2 Navdeep Singh who was minor at the time of filing of the
application was born. Subsequently, differences cropped up between the
two and thereafter the applicant wife claims that she was thrown out of
the house and thus, sought maintenance for herself as well as her minor
child alleging that the husband is an able bodied person and runs a dairy
farm and earns handsomely as well as from his avocation as a bus
conductor and has about `15,000 earnings from these.
The respondent husband’s stand though admits the
relationship but claims that she is not his legally wedded wife and thus,
her marriage with Mander Singh son of Gurcarhan Singh is subsisting as
on date of filing of the application, since they had not been legally
divorced and therefore was not entitled to any maintenance. It was as an
admission of this situation between the couple, the trial Court and so the
first appellate Court has declined the wife the maintenance allowance.
Appreciating the submissions of the two sides, it is by no
means denied that initially the applicant Parminder Kaur alias Sukhpreet
Kaur was married to Mander Singh and subsequently this marriage was
put to an end and almost four years prior to the filing of the application

for maintenance i.e. around the year 2003 they have entered into this
relationship. It could not be refuted by learned counsel for the
respondent by any means that minor son Navdeep Singh is not an
offspring out of this relationship. Thus, the moot point that comes up is
if in such a situation the minor son and so the application No.1
Parminder Kaur alias Sukhpreet Kaur is entitled to maintenance or not.
The statement of Parminder Kaur alias Sukhpreet Kaur as
AW1 as has been highlighted is supported by the depositions of AW2
Nachhatar Singh and AW3 Mander Singh son of Gurcharan Singh and
all these witnesses univocally spell out that after the dissolution of the
marriage of Parminder Kaur alias Sukhpreet Kaur with Mander Singh
the couple had entered into a wedlock and stayed together for a long
period of time giving birth to an offspring Navdeep Singh. However,
evidence of the wife’s side has not been controverted by the respondent
who has failed to examine even a single witness to prove his stand or to
examine even himself to rebut these contentions and rather it is admitted
stand of the counsel of the husband that the husband Harpal Singh alias
Gurpal Singh had earlier on 20.03.2007 filed a petition under Section 9
of the Hindu Marriage Act seeking decree of restitution of conjugal
rights and which was subsequently dismissed as withdrawn which is
reflected from Ex.PX and Ex.PY. The petition itself reflects that the
husband claims that a marriage between them was solemnized on
12.03.2003 by way of sikh rites by way of Anand Karaj ceremony and

further admits that out of this wedlock between them Navdeep Singh a
male child was born to them. This stand of the husband is not at all
disputed and rather as per Ex.PX the wife was granted ad-interim
maintenance under Section 25 of the Hindu Marriage Act and the
concerned Court had framed issues on their pleadings including the
entitlement of husband for a decree of restitution of conjugal rights and
which fact escaped the judicial notice of the Courts below. Since there is
an admission before a Court of law by the husband of this matrimonial
relationship of a husband and wife which he has tried to enforce through
a Court of law is the best piece of evidence and now at this stage when
faced with this music of paying maintenance cannot be allowed to
withdraw from it and thus, in terms of Sections 17, 18, 19 of the
Evidence Act is a reliable unrebuttable legitimate piece of evidence and
a party cannot wriggle out of such admission made before a Court of law
and thus, are relative piece of evidence in terms of Section 21 of the
Evidence Act. To the mind of this Court being an admission in a civil
case is certainly relevant in terms of Section 23 of the Evidence Act.
Thus in the totality of this written admission before a Court of law
washes away the benefit of the admission of the wife in her crossexamination
that her marriage was dissolved and the onus shifts upon
the husband in terms of Sections 101 and 102 of the Evidence Act to
establish the invalidity of this marriage.

Looking from another angle, with the advent of
modernization and introduction of new ethos, patterns and social norms
that have come about in this modern era, the term ‘wife’ needs to be
given a broad and expansive interpretation to include even those cases
where a man and woman have been living together as husband and wife
for a reasonably long period of time and thus, does not necessitates strict
proof of marriage for the purposes of grant of maintenance.
Hon’ble the Supreme Court of India in ‘Indra Sarma v.
V.K.V. Sarma’ 2013(15) SCC 755 had considered various elements in
such relationships consisting of duration of period of relationship,
shared household, pooling of resources and financial arrangements,
domestic arrangements, sexual relationship, children, socialization in
public, intention and conduct of the parties, as strict indicators of such a
relationship, impels this Court to hold this relationship in the nature of a
marriage which is within the meaning assigned to Section 2(f) of the
Domestic Violence Act. The husband knowingly has as is admitted by
him married her and thus accepted unconditionally her as his wife and
after a long cohabitation begotten a child from her womb.
From the overall interpretation of the evidence, it clearly and
strongly bears out that this woman and man knowing well that the lady
had already divorced her previous husband have chosen to undergo a
marriage as per his admission by way of Anand Karaj ceremony, lived
together under a roof, had relationship, catering to each others needs and

desires and begetting the child are in itself exhaustively defining the
domains of their relationship to be of a pure and simplicitor that of
husband and wife. Now the husband faced with this matrimonial
ignominy is trying to shed away his obligation of paying maintenance
and trying to hide under the garb of ‘not legally wedded wife’ which
coinage has been rampantly used by him in his pleadings and invariably
suggests that he admits their relationship to be of a husband and wife.
Though, in the light of reference made by the Hon’ble Supreme Court in
‘Chanmuniya v. Virendra Kumar Singh Kushwaha & another’
2011(1) SCC 141 to a Full Bench of that Court to answer the question
whether living together of a man and woman as husband and wife for a
considerable period of time would arise presumption of valid marriage
between them and whether such a presumption would entitle the woman
to maintenance under Section 125 Cr.P.C. But for the time being the
rights of the wife and the child cannot be stalled.
 Since husband in the present case has on his own forgiven
the past of the wife and has accepted her as such for a long period of
time till their relationship remained cordial, now cannot be allowed to
get out of the same by any means. 
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRR No.3625 of 2012 (O&M)
Date of decision: 26th July, 2016
Parminder Kaur @ Sukhpreet Kaur and another

V
Harpal Singh @ Gurpal Singh

CORAM:MR. JUSTICE FATEH DEEP SINGH

FATEH DEEP SINGH, J.
Citation:2016 CRLJ(NOC)344 P&H

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Whether second wife can be treated as legally wedded wife if second marriage was performed with consent of first wife?

In so far as submission of the learned counsel appearing for the petitioners that petitioner no.1 solemnized marriage with the said deceased after such writing was received from the first wife giving her no objection in favour of the said deceased in getting married again and petitioner no.1 would be one of the legal heirs of the said deceased is concerned, in my view, this issue is concluded by the judgment of the Supreme Court delivered on 15th March, 2013 in case ofNagendrappaNatikar (supra) when Supreme Court considered similar consent letter addressed by the first wife of the deceased. After considering such writing, Supreme Court held that under section 25 of the Contract Act, any agreement which is opposed to public policy is not enforceable in a court of law and such an agreement is void, since the object is unlawful. In my view, only a competent court can grant decree of divorce and no divorce can be granted to a party governed by Hindu Marriage Act or Special Marriage Act, based on such consent letter. In my view divorce can not be granted by parties by such writing unless decree is passed by competent court annulling such marriage. In my view, marriage of the first petitioner with the said deceased is thus void and petitioner no.1 therefore cannot be considered as a legal heir of the said deceased. Petitioner nos.2 and 3 being daughters born out of such wedlock would be entitled to share in the property of the said deceased. Mother of the said deceased is also one of the legal heir of the said deceased and would be one of the legal heir and would be entitled to share in the property of the said deceased.

BOMBAY HIGH COURT

Vandana Bhimrao Jadhav and Others Vs. Sagar Bhimrao Jadhav

Citation;2014(2) MHLJ 274 Bom

Court : Mumbai

Judge : R.D. DHANUKA

Decided On : Oct-22-2013

Case Number : Misc. Petition No. 110 of 2011 In Misc. Petition No. 91 of 2009

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Whether live in partner of husband will have more right over property than legally wedded wife after death of husband?

New Delhi: A woman doesn't have a claim to her partner's home over that of his wife, the Delhi high court has said in an important ruling on legal rights in a live-in relationship.
Justice Najmi Waziri on Tuesday came to the rescue of a 78-year-old widow, a US citizen, by restoring to her possession of a Greater Kailash property owned by her husband. The senior citizen, who now lives in the US, married an Indian businessman in 1963 and was forced to move court when she was ousted from her matrimonial home following her husband's death last year.
"A live-in or mistress or survivor in a bigamous relationship does not enjoy the status of marriage, hence she does not get the protection of law for maintenance," Justice Waziri said referring to Supreme Court rulings. The court made it clear that the US citizen, being the legally wedded wife of the businessman, had a better claim to his property over that of the live in partner.

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Whether succession certificate can be granted in contravention of Nomination?

IN THE HIGH COURT OF ALLAHABAD

Decided On: 07.05.2008

Smt. Naseem Begum alias Naseem AktharVs. Smt. Shaista and Ors.

Hon'ble Judges/Coram:
Amitava Lala and Shishir Kumar, JJ.

Citation: 2008 (72) ALR 701, 2008 4 AWC3467All, II(2008)DMC669

Indian Succession Act, 1925 - Succession certificate--Nominee in service record of deceased--Whether appellant is legally wedded wife of deceased or respondent No. 1--To be determined by civil court--Suit for declaration that appellant is legally married wife--Already instituted by her--Unless service record corrected, authority obliged to pay amount to nominee.

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Whether wife is entitled to get maintenance if her marriage is void?

It is fundamental principle of law that in order to claim a relief from the Court of law, there must be a legal right based on a legal status. When the status of a woman as "wife" is not recognized by provisions of the Act, which confers the right for permanent alimony, she cannot be entertained for grant of relief in the absence of recognition of her status by the Act.

22. If the construction of word "wife" is not accepted uniformly, for the purpose of same remedy provided in special legislation (section 125 of Criminal Procedure Code, 1973) and personal law, anomalous position may occur. A woman who has been denied maintenance in a petition under section 125 of Criminal Procedure Code, 1973, for the reason that she is not "legally wedded wife" would successfully pray and obtain permanent alimony in total disregard of earlier judicial pronouncement, as also, provisions regarding legitimacy of marriage as contained in personal law.

23. Even while considering section to be a "welfare legislation", it cannot be ignored that such a liberal construction, although may benefit the second wives, who are drawn into the form of marriage by keeping them ignorant about illegitimacy of the same, may encourage bigamous marriages with full knowledge and in spite of existence of a legislation in the field, preventing bigamous marriages.

24. For the reasons discussed above, with due respect, it is held that the decisions of the Bombay High Court, upholding right of maintenance to "illegitimate wife" (or "faithful mistress") by liberal construction of word "wife" as contained in section 25 of HM Act, cannot be said to be a good law and are required to be overruled to that extent.

Bombay High Court

Bhausaheb @ Sandu S/O Raghuji ... vs Leelabai W/O Bhausaheb Magar on 7 July, 2003

Equivalent citations: AIR 2004 Bom 283, II (2004) DMC 321, 2003 (4) MhLj 1019

Bench: N Dabholkar, A Naik, N Patil

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Whether Electoral roll can prove that lady was Lawfully wedded to man?

An extract in the Electoral Roll cannot be proof of the fact that the 1st opponent was the lawfully wedded husband of the 1st petitioner. The 1st petitioner has also relied upon a photograph Exhibit 36 which is the photograph of the 1st petitioner and the 1st opponent, taken some years ago. Now this photograph has been admitted in evidence through the 1st petitioner. However, before a photograph could be admitted in evidence it is necessary that the person who took the photograph should be examined and such a person should produce the negative and no positive print or enlargement could be admitted in evidence without the negative being produced in the first instance.
Bombay High Court

Sabera Begum And Ors. vs G.M. Ansari on 15 December, 1978

Bench: D Mehta

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