Badshah v. Sou. Urmila Badshah Godse (2014)

A man with a living wife marries a second woman without telling her, lives with her, fathers a child, and then defends her maintenance claim by saying that his own bigamy makes her no wife at all. This is the decision that refuses him that defence. It is the single most useful authority in this paper on maintenance for the deceived second wife, and it is where the Court states the method of social context adjudication.

The first respondent was divorced from her first husband in 1997 and lived at her parents' house until 2005. On the petitioner's demand for marriage, made through mediators, she married him on 10 February 2005 at a temple according to Hindu rites, and thereafter lived and cohabited with him. He maintained her well for about three months.

Then another woman came to the house claiming to be his wife. When she asked him about it, he replied that if she wanted to cohabit with him she should keep quiet, and otherwise she was free to go back to her parents. She was already pregnant by him, so she tolerated the ill-treatment and stayed. He then began to give her mental and physical torture under the influence of liquor, and doubted that the child was his and said it should be aborted. When the ill-treatment became intolerable she returned to her parents' house. The daughter was born on 28 November 2005.

She applied for maintenance for herself and the child. He denied the marriage, denied cohabitation, denied paternity, and said she was in the habit of levelling false allegations and was trying to blackmail him. He said he had married the other woman in 1979, had two children by her, and that she had lived with him ever since — so that the respondent could not be his wife during the subsistence of the first marriage.

The trial court found against him on the facts, and those findings were upheld in revision and by the High Court. She had produced overwhelming evidence, including photographs of the marriage; it was also found that he knew she was a divorcee, which he admitted in cross-examination; and that at the time of the marriage he intentionally suppressed his first marriage from her. Maintenance was awarded at one thousand rupees a month for her and five hundred for the daughter.

His only argument in the Supreme Court was that, he being already married, she could not be treated as his wife and the petition was not maintainable. He relied on the decisions holding that a woman who marries a man with a living lawfully wedded wife is not a legally wedded wife and cannot claim maintenance, and on the statutory prohibition of a second marriage during the subsistence of the first.

The petition was dismissed and the maintenance upheld. Having duped her by concealing the first marriage, he could not take advantage of his own wrong; at least for the purposes of the maintenance provision she would be treated as his wife. As to the daughter, whose paternity was proved, in no case could he shun the liability, and his counsel did not seriously dispute it.

1. The standard of proof in these proceedings is not strict. The validity of the marriage for a summary maintenance proceeding is determined on the evidence brought on record, and the standard is not as strict as in a trial for bigamy. If the claimant shows that she and the respondent lived together as husband and wife, the court may presume they are legally wedded spouses, and the party denying the marital status may rebut the presumption. Once it is admitted that the marriage procedure was followed, it is not necessary to probe whether it was complete as per the rites; prima facie satisfaction suffices, and strict proof of the essential rites is not required.

1. The order is summary and not conclusive. The provision is enacted to give a summary remedy for maintenance to a wife, children and parents. It does not finally determine the rights and obligations of the parties, and the criminal court's decision that there was a valid marriage does not operate as decisive in any civil proceeding between them.

1. The word "wife" is to be read widely. A broad and expansive interpretation should be given so as to include cases where a man and a woman have been living together as husband and wife for a reasonably long period, and strict proof of marriage should not be a pre-condition, so as to fulfil the true spirit of the beneficial provision. (The Court noted that three questions on that theme had been referred to a larger bench, but declined to tag this case, because here the marriage itself was proved.)

1. Reconcile the earlier decisions by the woman's knowledge. The decisions denying maintenance to the second wife apply only where a woman married a man with full knowledge of the first subsisting marriage — in such a case she should know the second marriage is impermissible and must suffer the consequences. They do not apply where a man marries a second time keeping the woman in the dark about the first surviving marriage. That, the Court said, is the only way the two sets of judgments can be reconciled and harmonised.

1. No one may profit from his own wrong. He gave her a false representation that he was single and competent to marry. He cannot then turn around and say that she is not entitled because she is not his legally wedded wife.

1. Purposive interpretation and social context adjudication. In dealing with a destitute wife, hapless children or parents under this provision the Court is dealing with the marginalised sections of society, and the purpose is to achieve the social justice promised by the Preamble. It is the bounden duty of the courts to advance that cause, and in giving interpretation to a provision the Court is supposed to bridge the gap between the law and society. Mere adversarial approach may not be appropriate where unequal parties are pitted against each other; the adversarial process itself operates to the disadvantage of the weaker party, and the judge must be sensitive to the inequality and positively inclined to the weaker party if the imbalance is not to result in a miscarriage of justice. The law is a living organism resting on a changing social reality; when social reality changes, the law must change too, and gaps are to be filled and hardships mitigated.

It opens the maintenance question wherever the marriage is challenged as bigamous. The sequence is: the summary nature of the proceeding and the relaxed standard of proof; the wide reading of "wife"; then the decisive fact — did she know of the first marriage?

It disposes of the defence that a second marriage being void under the personal law, the woman can never claim maintenance.

It does not decide that a woman who knowingly marries an already-married man may claim maintenance; on that the earlier decisions stand. Nor does it hold the second marriage valid — it is void, and the holding is confined to the maintenance provision. The three referred questions on presumption of marriage from long cohabitation were expressly left to a larger bench. Read this immediately after the decision defining a relationship in the nature of marriage, whose requirement that the parties be otherwise qualified to marry would have excluded this very woman.