Legal loophole in maintenance law letting offenders slip away: Delhi HC

The Delhi High Court has expressed its concern over "legal loopholes" in the maintenance law letting "offending parties to slip away" as it set aside an order directing payment by a man to his 'wife' after it was found that both the parties had other living spouses.

Justice Subramonium Prasad, who was dealing with the man's challenge to the trial court order directing payment of maintenance under Section 125 Code of Criminal Procedure (CrPC), said that while he sympathised with the position of the woman, he was constrained to deny her maintenance according to the applicable law as a second wife whose marriage is void on account of the survival of the first marriage would not be a legally wedded wife.

The judge stated that in spite of the parties cohabitating as husband and wife, it is "not legally tenable to raise a presumption of a valid marriage" because both of them were already married to their respective spouses and their marriages were subsisting.

Section 125 CrPC says that if any person having sufficient means neglects or refuses to maintain his wife, who is unable to maintain herself, the trial court may order such person to make a monthly allowance for her maintenance.

As this is a petition under Section 125 CrPC and the term "wife" under Section 125 CrPC does not envisage a situation wherein both the parties in the alleged marriage have living spouses, this Court is of the opinion that the respondent herein cannot seek maintenance from the Petitioner under this provision, the court said.

It added that in spite of the social justice factor embedded in the section, its objective is defeated as it fails to arrest the exploitation which it seeks to curb.

"This court finds it unfortunate that many women, especially 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," the judge said in the order.

The court clarified that the woman has the liberty to avail other remedies that may be better suited to the facts and circumstances of this case, such as seeking compensation under the Domestic Violence Act.

In the present case, the court noted, the parties were married according to Hindu rites in 1999.

In September 2011, the woman filed a plea seeking maintenance under Section 125 CrPC and subsequently an order was passed by the family court directing the man to pay her Rs 4,200 per month as maintenance.

He challenged the order before the high court contending that since both the parties were already married to other people, there was no valid marriage between them and no order could have been passed under Section 125 CrPC.