Only legally wedded wife has right to claim maintenance under section 125 CRPC


Question asked on: 01/02/2017

My husband does not interest to maintain me. He used to absent in the court proceeding and later on claimed that our marriage is void due to not solemnised as per the Hindu ritual. I am legally wedded wife, hence can he refused to pay maintenance under section 125 CrPC? 

Advised by: Shivendra Pratap Singh,

Section 125 of the code of criminal procedure is social legislation enacted to provide a swifter process for maintenance. A destitute wife is entitled to alimony under section125 if she is unable to maintain herself out of her sources.

Only legally wedded wife is entitled to claim maintenance under section 125 of the code of criminal procedure (crpc). A marriage is said to be legal or valid if solemnised according to the provisions of the Hindu Marriage Act 1955 (HMA).

However, section 7 of the HMA does not envisage mandatory ceremonies for a valid marriage. However, solemnisation of marriage according to customary rites and rituals is a necessary condition of a valid marriage. The rites may be such that prevailing in the community of either party. 

Hence, if your marriage is solemnised according to the required ceremonies prevalent in your community, then the marriage is valid. Your husband cannot take such plea in the proceeding under section 125 crpc only for the purpose to defeat your valuable right.  

Section 125 provides maintenance right to wife, parents, and children. However, as far as the wife is concerned, maintenance right is available for the legally wedded wife only.

A mistress or wife of bigamous marriage has no right to maintenance under section 125 crpc. As well as a wife cannot file more than one application under section 125 crpc for alimony. 

In D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469 the Supreme Court is held that only legally wedded wife has right to maintenance under section 125.

In Dwarika Prasad Satpathy v. Bidyut Prava Dixit (1999) 7 SCC 675 the supreme court is held that if the wife proves that she has been living together with the respondent (husband) as a wife, the court has to presume that she is legally wedded wife.

In Yamunabai case (1988) 1 SCC 530; supreme court opined that the expression “wife” used in Section 125 of the Code should be interpreted to mean only a legally wedded wife.

Hence, it is evident from judgments mentioned above that only legally wedded wife has right to claim maintenance under section 125.

He cannot refuse to maintain on the ground that you are not a legally wedded wife because he has not initiated any legal proceeding to nullify his marriage. More importantly, he did not deny that you have not been living with him as a wife. In the absence of such denial and proof of living, the court may presume that you are a legally wedded wife.

This section does not confer a separate right, but it provides a swifter procedure to execute maintenance right. The Supreme Court made a very liberal interpretation of Section 125 crpc and entitled a woman living in a domestic relationship to claim maintenance therein.

The provision under Section 125 cannot be used for defeating the right. If the husband has proof that marriage is void, he has to initiate proper proceeding instead of making a mere statement.

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Shivendra Pratap Singh

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