Biwi No 2 has no right to alimony: High court

Holding that monogamy is the rule in Hindu marriages, the Bombay high court on Monday refused to grant maintenance to a second wife.

The couple, Hemant, 59, and Sonali Mhatre, 59, (names changed) were married in June 1983 and lived together for 17 years till they separated in 1999. Hemant then filed a petition in the family court at Bandra to get the marriage declared as “null and void” as he was already married and his wife was still alive.

He urged the court to restrain Sonali from using the title of his wife and come to his residence. Sonali, on the other hand, had sought maintenance from Hemant stating that she was his legally wedded wife and their marriage was registered. She said that at the time of the marriage she was not aware that his first marriage was not dissolved. Hemant, she said, had told her that he was a divorcee.

The family court, in its order of 2002, had held that “the legal position is almost settled that since the second marriage during subsistence of first one is void, the second wife does not get any rights as regards the maintenance.”

The court had also said that Sonali had the means to support herself from service pension and acting in television serials. Although the family court held that Hemant had wanted to nullify his marriage with Sonali at a belated stage to “take advantage of his own wrong”, it said that Sonali was not entitled for alimony.

Sonali’s contention before the high court was that if her marriage was not invalidated, she still had the status of his wife and was, therefore, eligible to seek maintenance from him. The court, however, said that section 5 of the Hindu Marriage Act clearly states that it is a pre-condition in Hindu marriages that neither of the parties should have a living spouse at the time of marriage.
Among Hindus, the high court said, marriages are governed by the Hindu marriage Act, and if the marriage does not abide the provisions of the Act, the parties cannot be called husband and wife.

Justice AP Deshpande and justice RP Sondurbaldota also took into account the finding of the family court that Sonali was well aware of Hemant's first marriage, and she cannot seek the court's sympathy on that count.

The court held that to seek maintenance under the Hindu marriage Act or the Hindu Adoption and Maintenance Act, the woman has to be “legally-wedded Hindu wife and no less.”