Opinion Twice shy

Though Justice Oka’s judgement is highly valuable,it is not a precedent for the Bombay High Court. It follows the tradition set by Justice Kania,way back in 1976 in Govindrao vs. Anandibai (AIR 1976 Bom 433),which had ruled that since the Hindu Marriage Act is a beneficial legislation,it would not be right to adopt a narrow approach and deprive a large number of women their rights of maintenance. This could not have been the intention of the legislature. Had the lower courts followed this ruling,Suman would not have been spared this ordeal. Justice Oka relied upon another judgement of the Supreme Court which had also upheld a similar position,Dwarika Prasad Satpathy v Bidyut Praya Dixit (AIR 1999 SC 3348) and had laid down that strict proof of a valid marriage is not necessary while deciding the issue of maintenance in summary proceedings under Section 125 of the Cr.PC.

Another important ruling on this issue was delivered by the Supreme Court in 2004 in Rameshchandra Daga vs. Rameshwari Daga,where the right of another woman in a similar situation was upheld. Here the apex court had accepted that Hindu marriages have continued to be bigamous despite the enactment of the Hindu Marriage Act in 1955. The court had commented that though such marriages are illegal as per the provisions of the Act,they are not ‘immoral’ and hence a financially dependent woman cannot be denied maintenance on this ground. But a contrary and regressive view was expressed by another bench of the Supreme Court in 2005,in Savitaben Somabhai Bhatiya vs. State of Gujarat (AIR 2005 SC 1809) which denied the woman maintenance on the ground that it is inconsequential that the man was treating the woman as his wife. The court commented,“However desirable it may be to take note of the plight of the unfortunate woman,the legislative intent being clearly reflected in Section125 of the Cr.PC,there is no scope for enlarging it by introducing any artificial definition to include a woman not lawfully married in the expression ‘wife’.” Fortunately for women,Justice Oka did not endorse this view though this case was cited in support of the husband’s claim.

Perhaps I need to clearly state my position here,lest I be quoted out of context. I am not endorsing bigamy,but rather,making out a case in defence of women who are caught in this web of deceit by husbands who take advantage of the vulnerability of women and then try to escape from the financial liability by using provisions of an Act which was meant to be beneficial to Hindu women. Only under the Hindu law is it possible to blatantly plead an illegal act and gain financial advantage without any criminal culpability. This occurs so routinely that the apex court in Vimala vs. Veeraswamy,had laid down that when a man pleads an earlier marriage,he would have to strictly prove the same. In the present case,the husband could not prove that he was married earlier in 1978,prior to his marriage with Suman in 1980. But the bigamy was an admitted fact,since the wife herself pleaded that in 1982 he had married again. But he continued to cohabit with her and produced children at regular intervals. The two earlier ones had expired and only the daughter born in 1987 has survived.

These facts highlights another reality of Hindu women’s lives. Though women do have a right of divorce,most women in rural areas accept their husbands’ bigamous marriages and continue to reside with them despite domestic violence,so long as the husbands continue to cohabit with them and maintain them. Only when they are thrown out,they approach the courts for their basic right of survival. It is here that the trial courts have to be aware that they have a constitutional duty to uphold women’s right to dignity and survival.

The writer is a women’s rights lawyer and feminist legal scholar. She is also the director of ‘Majlis’ which provides legal advocacy and litigation support to women