June 05, 2018
Under Section 125(1) of Code of Criminal Procedure a wife, who is unable to maintain herself can claim maintenance from her husband. The term “wife” includes a woman who has been divorced or has obtained divorce from her husband and has not remarried.
If the fact or legality of marriage between the applicant and husband is disputed then it is for the applicant i.e. wife to prove the existence of marriage between the parties. The judicial dictum in cases where the existence of marriage have been disputed indicates that the strict proof of marriage is not necessary for claiming of maintenance under Section 125(1) of CrPC.
A conspectus of judicial decisions have been enumerated below to give an understanding of the standard of proof of marriage required while claiming maintenance under Section 125(1) of CrPC.
No strict proof of performance of marriage is required if the Court is Satisfied that claimant and her husband lived as husband and wife
Dwarika Prasad Satpathy vs Bidyut Prava Dixit And Another– In this case, the Supreme Court held that no strict proof of performance of marriage is required if the claimant prima facie satisfied the Court that claimant and her husband lived as husband and wife. The Court also observed that the standard of proof of marriage in proceedings under Section 125(1) of CrPC is not as strict as required in trial of offences under Section 494 of the Indian Penal Code.
The Court opined that if the claimant in proceedings under Section 125(1) of CrPC succeeds in showing that she and the respondent have lived together as husband and wife, the court can presume that they are legally wedded spouse, and in such a situation, the party who denies the marital status can rebut the presumption.
That once it is admitted that the marriage procedure was followed then it is not necessary to further probe into whether the said procedure was complete as per the Hindu Rites in the proceedings under Section 125(1) of CrPC. From the evidence which is led if the Magistrate is prima facie satisfied with regard to the performance of marriage in proceedings under Section 125(1) of CrPC which are of summary nature strict proof of performance of essential rites is not required.
Sethurathinam Pillai v. Barbara– A similar observation was made by Supreme Court in this case, wherein it remarked that maintenance under Section 125(1) of CrPC cannot be denied where there was some evidence on which conclusion for grant of maintenance could be reached.
Term ‘wife’ under Section 125 of CrPC to be given a wide interpretation
“A broad and expansive interpretation should be given to the term “wife” to include even those cases where a man and woman have been living together as husband and wife for reasonably long period of time, and strict proof of marriage should not be a pre- condition for maintenance under Section 125(1) of CrPC so as to fulfill the true spirit and essence of the beneficial provision of maintenance under Section 125(1) of CrPC.”
Second Wife can also Claim Maintenance u/ Section 125(1) of CrPC
Badshah vs Sou. Urmila Badshah Godse & Anr.– In this case, the marriage between the petitioner and respondent was solemnized; respondent co-habited with the petitioner after the said marriage a child was begotten out of the said co-habitation, whose biological father was the petitioner. The crux of the matter lies in the fact that at the time when the petitioner married the respondent, he had a living wife and the said marriage was still subsisting. Thus, the issue that fell for consideration before the Supreme Court was whether in such circumstances, the respondent could filed application under Section 125(1) of CrPC?
The Supreme Court in the case while ruling in favour of the respondent opined that the provision of maintenance would definitely fall in this category which aims at empowering the destitute and achieving social justice or equality and dignity of the individual. While dealing with cases under this provision, drift in the approach from “adversarial” litigation to social context adjudication is the need of the hour.
The Court held that an expansive and purposive interpretation needs to be given to the provisions of Section 125(1) of CrPC.
The Apex Court remarked that while dealing with the application of destitute wife or hapless children or parents under this provision, the Court is dealing with the marginalized sections of the society. The purpose is to achieve “social justice” which is the Constitutional vision, enshrined in the Preamble of the Constitution of India. Preamble to the Constitution of India clearly signals that we have chosen the democratic path under rule of law to achieve the goal of securing for all its citizens, justice, liberty, equality and fraternity. It specifically highlights achieving their social justice. Therefore, it becomes the bounden duty of the Courts to advance the cause of the social justice. While giving interpretation to a particular provision, the Court is supposed to bridge the gap between the law and society. The Court as the interpreter of law is supposed to supply omissions, correct uncertainties, and harmonize results with justice through a method of free decision—“libre recherché sceintifique” i.e. “free Scientific research”. We are of the opinion that there is a non-rebuttable presumption that the Legislature while making a provision like Section 125(1) of CrPC to fulfill its Constitutional duty in good faith, had always intended to give relief to the woman becoming “wife” under such circumstances.
Marriage Procedure followed by Putting Vermillion on Wife’s Forehead
Sabita Deka v. Babul Deka– In this case, a proceeding, under Section 125(1) of CrPC, was initiated by the petitioner against the present respondent claiming monthly maintenance allowance from the respondent. According to the petitioner wife, the respondent married her by executing a registered agreement at Guwahati, and, after the agreement was executed, he had put vermilion on her forehead accepting her as his wife in presence of village people.
However, the respondent contested the proceeding by denying the marriage and claiming that the present petitioner is not his wife and was not entitled to any maintenance allowance.
The High Court of Gauhati held that the fact of marriage was substantiated by the fact that respondent had put vermilion on the forehead of the petitioner, meaning thereby, that he had married her.
The High Court also made reference to Apex Court’s verdict in the case of Savitaben Somabhai Bhatiya v. State of Gujarat & ors. wherein it was held that by putting vermilion on the forehead of the petitioner by the respondent, the marriage procedure was followed, and as such, it was not necessary for the petitioner to prove further as to whether the said procedure was completed as per Hindu rites, in a proceeding under Section 125(1) of CrPC.
 AIR 1999 SC 3348
 (1971) 3 SCC 923
 (2011) 1 SCC 141
 SPECIAL LEAVE PETITION (CRL.) No.8596/2013
 Criminal Revision Petition 366/2007, decided on September 04, 2017
 (2005) 3 Supreme Court Cases 636