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maintenance

Maintenance to the second wife: A Gender Justice Perspective

Badshah v Urmila Badshah (2013): A case about maintenance to the second wife

Introduction:

The year 2013 marked a very interesting case of Badshah v Urmila Badshah[1] where the petitioner Mr. Badshah had concealed the fact of his first marriage and denied maintenance to his second wife. Both the marriages, in this case, were proved, but since Mr. Badshah had already been married. Based on the above-stated facts, it was derived that the petitioner could not be allowed to deny maintenance to his second wife (the respondent). Denying the right to seek maintenance to the second wife because of the husband’s wrong is taking advantage of it and hence wrong. A bench comprising Ranjana Prakash Desai and A K Sikri discussed the issue of whether the second wife (Respondent) was entitled to any sort of maintenance?

Facts:

Mr. Badshah got married to Ms. Urmila (Respondent), following all Hindu Rites and customs, on the 10th of February, 2005, at the Devgad Temple, Hivagrav-Pavsa. Post the marriage, both the respondent and petitioner stayed together at the house of the petitioner (Mr. Badshah). One day, his first wife named ‘Shobha’ knocked on the house, claiming to be his wife. Mr. Badshah asked the respondent to live quietly if she wanted to stay with him at his house or leave his house and go back to her house, on asking about his first wife, Shobha.

At the time, the respondent (Ms. Urmila) was pregnant and bearing Mr. Badshahs child and hence chose to stay with Ms. Shobha despite Mr. Badshah’s misbehavior. Soon, Mr. Badshah, under the influence of alcohol, started torturing Ms. Urmila both physically and mentally. When it was too much for her to handle while being pregnant, she decided to leave the petitioner’s house and go back to her parent’s house. Shivanjali, the daughter of Ms. Urmila and Mr. Bahadur, came into being on the 28th of November, 2005, and on the basis of the actualities, Ms. Urmila (Respondent) was seeking maintenance to provide for herself and her newborn child.

Mr. Badshah filed to leave the appeal of the order and judgment passed by the Bombay High Court on the 28th of February, 2013 under Section 125[2] of the CrPC, which directed Rs. 1000 maintenance towards Ms. Urmila and Rs 500 towards their daughter Shivanjali. This Section was upheld by the Learned Trial Court and was also affirmed by the Additional Sessions Judge.

The petitioner contended that his relationship with Ms. Urmila (Respondent 1) and Shivanjali (Respondent 2) as wife and daughter respectively was false. He also alleged that the so-called marriage did not even take place, and the respondent never stayed with him at his place. He even went on to the extent of saying that Respondent 1 had a habit of lying, falsely accusing, and was blackmailing the petitioner. He also claimed that he is not the father of Shivanjali (Respondent 2).

According to the petitioner, he was only married once on the 17th of February, 1979 to Ms. Shobha (first wife) and had only two children (a 20-year-old daughter and a 17-year-old son), and they have been staying together at his place. To conclude, he stated that the fact being that he was married to Shobha and was living with her was proof that he did not and could not be his wife and that she filed a false and wrong petition in which she was claiming to be his wife.

The respondent had stated that she was initially married to Popat Fapale to whom she was divorced in the year of 1997. After which she has been staying with her parents at her parent’s house till 2005. In 2005, the petitioner demanded their marriage via mediators, and she got married to him on the 10th of February 2005 at Devgad Temple, Hivargav-Pavsa.

This case is a combination of both the marriages being proved. The petitioner duping the respondent into being his second wife. The respondent being pregnant with their child and seeking maintenance for her and her child. According to my the petitioner has no grounds to not provide the respondent and her daughter with maintenance.

The esteemed court made reference to a lot of cases, including Chanmuniya vs. Virendra Kumar Singh Kushwaha & Anr. (2011) 1 SCC 141[3] where the partners had been staying together for a very long time. The question of presumption of marriage arose, giving rise to the issue of maintenance (Section 25 Criminal Procedure Code[4]) while largely interpreting the terminology of ‘wife’. The court held that if a man and a woman have lived together for a long time in the absence of a valid marriage, such a woman would be entitled to maintenance under Section 25 of the Code.

In the current case, Ms. Urmila has strong proof that she was married to Mr. Badshah. The court made reference to more judgments like Rameshchandra Daga v. Rameshwari Daga AIR 2005 SC 422[5], Capt.Ramesh Chander Kaushal vs. Veena Kaushal (1978) 4 SCC 70[6], Dwarika Prasad Satpathy vs. Bidyut Prava Dixit & Anr. (1999) 7 SCC 675[7], Savitaben Somabai Bhatiya vs. State of Gujarat & Ors. (2005) 3 SCC 636[8] and Yamunabai Anantrao Adhav vs. Anantrao Shivram Adhay & Anr. (1988) 1 SCC 530[9].

Conclusion:

The marriage of Mr. Badshah and Shobha was kept a secret from Ms. Urmila, and she was falsely mispresented about the scenario. By not entitling Ms. Urmila to maintenance under Section 25, Mr. Badshah would be allowed to take advantage of his heinous act. Supreme Court observed that “This approach is particularly needed while deciding the issues relating to gender justice. We already have examples of exemplary efforts in this regard. The journey from Shah Bano to Shabana Bano guaranteeing maintenance rights to Muslim women is a classic example.” The Supreme Court had declined to grant leave to the petitioner and, by giving aforesaid reason dismissed the special leave petition.

References

[1] Badshah v Urmila Badshah, (2014) 1 SCC 188.

[2] Section 125, The Code of Criminal Procedure, 1973.

[3] Chanmuniya vs. Virendra Kumar Singh Kushwaha & Anr., (2011) 1 SCC 141.

[4] Section 25, The Code of Criminal Procedure, 1973.

[5] Rameshchandra Daga v. Rameshwari Daga, AIR 2005 SC 422.

[6] Capt.Ramesh Chander Kaushal vs. Veena Kaushal, (1978) 4 SCC 70.

[7] Dwarika Prasad Satpathy vs. Bidyut Prava Dixit & Anr., (1999) 7 SCC 675.

[8] Savitaben Somabai Bhatiya vs. State of Gujarat & Ors., (2005) 3 SCC 636.

[9] Yamunabai Anantrao Adhav vs. Anantrao Shivram Adhay & Anr., (1988) 1 SCC 530.

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