ANSWER TO QUESTION NUMBER 6

According to laws in India the second marriage is void if husband already has first wife
living. What are the maintenance rights of second wife if husband does not disclose the facts
of first marriage? Do the child of second wife has maintenance rights?

Firstly, the second marriage is null and void in the eyes of law therefore the second wife does
not have any rights but in certain cases courts have ruled that second wife can claim
maintenance under section 125 of CrPC if she is able to prove that she was not aware about
the first marriage. Knowledge about first marriage is a major factor while deciding the case of
maintenance in this scenario.

Child born out of the second marriage has the same rights as the child born out of first
marriage (Section 16 of Hindu Marriage Act).

In the case of Rajesh Bai v. Shantabai it was held that the second wife whose marriage is
void because of first marriage of her husband can claim for maintenance under section 18 of
Hindu Adoption and Maintenance Act. Also, the Madras high court in the case of Mani Bai
v. Jayantilal Dahyabhai held that second wife can claim for separate maintenance.

Under Section 20(2) Hindu Adoption and Maintenance Act the child born out of void
marriage has rights for maintenance as long as the child is minor. So, in this case the baby
boy which was born to Ms. Rani and Mr. Satya has maintenance rights.

Badshah v Urmila Badshah (2013)

In this case of Badshah v. Urmila Badshah the husband married the second wife and does not
disclose the fasts about his first marriage and a child was born out of the husband and the
second wife, second wife filed a suit in the court for maintenance.

The court held that “the second wife is entitled to maintenance under Section 125 and the
petitioner duped the respondent by hiding the information about his first marriage. He cannot
deny his second wife’s right to maintenance. The court’s decision was based on the following
reasons:

 If a man and woman have been living together for a long time even without a valid
marriage, the term of valid marriage entitling such woman to maintenance should be
 drawn and a woman in such a case should be entitled to maintenance under Section
125.
 A false representation was given to respondent 1 that he was single and was
competent to enter into a marital tie with respondent 1. The petitioner cannot be
allowed to take advantage of his own wrong and deny maintenance to his second
wife. For the purpose of Section 125 CrPC, respondent 1 would be treated as the wife
of the petitioner.
 The wife was unaware of the first marriage of the husband.
 The purpose of Section 125 is to achieve ‘social justice’ which is enshrined in the
Preamble of the Constitution of India.
 A woman who is the second wife is also entitled to the right of maintenance under
Section 125 when there is sufficient evidence to prove that she was unaware of her
husband’s previous wedding and the second wedding was performed in accordance
with the personal laws”.

The supreme court in this case observed that the second wife generally is not entitled for
maintenance but when she is able to prove that she was unaware about the fact of 1 st marriage
thus in that case she can file for maintenance under 125 of CrPC.

Chanmuniya Vs. Chanmuniya Virendra Kumar Singh Kushwaha and Anr

In this case the Supreme court broaden the definition of “Wife” which saved the rights of
secondly married wife and that the husband should not escape his obligation and liability just
because the marriage was void.

The Supreme court held that:

“The term 'wife' in Section 125 of the Code of Criminal Procedure includes a woman who
has been divorced by a husband or who has obtained a divorce from her husband and has not
remarried. The woman not having the legal status of a wife is thus brought within the
inclusive definition of the term 'wife' consistent with the objective. Thus, in those cases
where a man, who lived with a woman for a long time and even though they may not have
undergone legal necessities of a valid marriage, should be made liable to pay the woman
maintenance if he deserts her. The man should not be allowed to benefit from the legal
loopholes by enjoying the advantages of a de facto marriage without undertaking the duties
and obligations”.

In this case Ms, Rani and her child is entitled to claim for maintenance and the husband Mr.
Satya cannot escape his liability to maintain child and wife just because his second marriage
was void. Courts in various cases held that secondly married wife where the wife was not
having knowledge about first marriage has the rights for maintenance and in some cases, she
can also claim for separate residence.

ANSWER TO QUESTION NUMBER 3

In this case Mr. Shakib was converted to Christianity from Islam. The status of marriage
between Mr. Shakib and Ms. Zeenat is in question. Also, Ms. Zeenat has not followed the
iddat period before getting married to Mr. Hasan therefore the status of this marriage is also
in question.

Firstly, when Mr. Shakib got converted into Christianity at that time the marriage is
automatically dissolved. Mr. Shakib is no more Muslim and Ms. Zeenat and Mr. Shakib are
no more a married couple the marriage stands dissolved immediately after conversion.

In the case of Abdul Ghani v/s Azizul Huq

In this case the Muslim man and got married and after some days Muslim man converts to
Christianity. His wife also got married to someone and did not follow the duration of iddat.

The supreme court in this case held that the as soon as the man converts from Islam to
Christianity the marriage stands dissolved and the marriage carried out by his wife not
following the duration of iddat period is still valid and she is not liable for bigamy under
section 494 of IPC.

“Whatever view be taken of the uncertain status of the parties during the period of iddat and
however illegal and void under Mohammedan law the second marriage of the woman during
the period of iddat may be, there is no foundation for any charge under. s 494 of IPC against
her. Her second marriage is not void by reason of its taking. place during life of prior
husband but by reason of special doctrine of the Mohammedan law of iddat with which the
Indian Penal Code has nothing to do”.

Therefore Ms. Zeenat in this case is not liable for Bigamy.

women are not allowed to marry another man during the iddat period and if the marry during
the iddat period then in that case the marriage is irregular but and not void.

Because they are Sunni therefore this marriage contracted by Ms. Zeenat is irregular. If they
were Shia then in that case the marriage contracted by Ms. Zeenat would have been Void.

Mahr is also known as dower which is an amount paid to the wife by the husband on or after
the solemnization of their marriage. If Mahr is not paid during or at the time of marriage but
it must be paid immediately after the marriage is dissolved.

As far as the question of Mahr/Dower is concerned in this case Mr. Shakib is liable to pay the
amount of 2,00,000 as it was decided at the time of marriage.

Mohammed Ahmed Khan v. Shah Bano Begum

The Supreme Court observed that “dower is paid by the husband as a mark of respect to his
wife. Also, mahr is an amount that is payable either at the time of marriage and if not paid
then at the time of dissolution of marriage. The court further said that such women are even
entitled to maintenance under section 125 of Cr.PC”.

ANSWER TO QUESTION NUMBER 5

In this case both the parties are in an adulterous relationship that means both the parties are at
fault. To give them remedy I would first ask them to try living separately, here I am not
talking about judicial separation because both the parties are at fault.

There are instances when an individual has the desire to give time and space to both
themselves and their partner. This can be helpful in both coming to terms with oneself and
conducting an examination of oneself, as well as understanding the value of a relationship.
The ability to deduce and evaluate one's own flaws is a significant step toward a brighter
future.

By living separately will creates a window of opportunity for reconciliation prior to the total
dissolution of the married couple's relationship. during that time, the parties will be expected
to reflect on their relationship and attempt to reconcile their differences rather than deciding
to end their marriage.
It's not uncommon for couples to argue over seemingly insignificant issues during their
marriage, and while divorce may seem like a drastic solution in these situations, it's really
not.

Mediation

Lack of communication is the root cause of all issues that arise in relationships. Through the
use of a mediator who is impartial, the goal of mediation is to facilitate communication,
understanding, and compromise in order to reach a settlement. Because the parties are likely
to have a relationship after the divorce is finalised, particularly in the case of minor children,
mediation is particularly suitable for matters involving divorce and other aspects of family
law. Many ladies going through divorce are able to escape the heavy stress of going to court
by using mediation. Because the settlement takes place more quickly, on average, costs are
lowered. Additionally, mediation helps couples avoid the uncertainty of going to trial,
maintains confidentiality, and reduces stress. Through the use of mediation, married couples
are able to avoid the risk of being sued, maintain their privacy, and significantly decrease the
intensity of their arguments.

The courts also regard "mediation" to be an adequate alternative means of settling

matrimonial issues. This is the reason why the courts want the parties to look into the
possibility of mediating the resolution of marriage difficulties.

S.Thankikodi v. Ramuthayee,

The Court, “when dealing with matrimonial cases, was required by section 23(2) of the Hindu
Marriage Act, 1955 to attempt to reconcile the parties in the matrimonial case in the first
instance. However, the Court states that it can only attempt to reconcile if it believes there is
a possibility of saving the marriage, and not otherwise”.

Salem Advocate Bar Association, Tamil Nadu v. Union of India

The supreme court in this historic judgement state that “mediation, conciliation, and
arbitration must be used in court cases”

Next best remedy which I can suggest is Mutual Consent Divorce under Section 13B of
Hindu Marriage Act
The courts will take into consideration a divorce with mutual consent if both the husband and
the wife agree that they want to end their marriage.

At the time of the disagreements, the parties just verbally stated that they had jointly decided
that their marriage should be dissolved by mutual consent. In such a circumstance, the
petition that was submitted in accordance with sections 13(1)(ia) and (ib) cannot be
considered to have been submitted in accordance with section 13B, and the decree for divorce
by mutual consent cannot be issued. In addition, in order to comply with the requirements of
clause 23(1) (bb) of the Act, parties are required to demonstrate to the court that consent was
not gained by the use of force, fraud, or undue influence.

Mutual consent divorce can be granted on fulfilment of following points:

 Parties are living separately for period of one year minimum

 They are not able to live together
 Both the parties have the consent for divorce

P. Sunder Raj v. P. Sarika Raj

The Court held that “a decree for divorce by mutual consent can be passed and is liable to be
passed where the parties seek divorce by mutual consent as provisioned under Section 13-B
of the Act and it cannot be done in any other manner”.

Affordable

In the event that both parties agree to end their marriage, it is possible to have just one
attorney handle the divorce proceedings. This will result in lower legal fees for both the
parties involved.

Judges decision

In a divorce proceeding of this kind, it is the duty of the judge to make certain that the
regulatory agreement has no provisions that are detrimental to the minor children's welfare or
that could substantially tilt the scales in favour of one of the parties.

Everyone wins
divorce that is settled through mutual agreement is advantageous for all parties involved.
There is a contract in place that puts a stop to any further deterioration in the relationship
between the former partner, as well as their children and other members of their families.

ANSWER TO QUESTION NUMBER 2

In this case of Ms. Pooja and Mr. Sharav, Mr. Sharavan married with pooja but at the time of
marriage he did not disclose the fact that he was a rape convict and was in jail for 7 years.
Rape is a serious offence and hiding such material fact which should be disclosed at the time
of marriage is not acceptable in the eyes of law.

Section 12 (2) (b) (i) says “non-disclosure of age and factum of having major children by
husband at the time of marriage amounts to fraud and suppression of material facts having
bearing on marriage. Marriage founded on fraud from very inception is a nullity”.

Shravan has asked a family court to restore Pooja's conjugal rights under the Hindu Marriage
Act. S.9 of the HMA deals with restitution of conjugal rights. According to this, if a husband
or wife is fired from their partner's company without a good reason, the person who was
wronged can ask the district court to restore their conjugal rights. The point of restitution of
conjugal rights is to bring back a spouse who left the relationship for no clear reason.

S.9 also talks about the only time this doctrine doesn't apply. According to the section, the
doctrine of restitution of conjugal rights cannot be used if the spouse has a good reason to
leave society.

She can argue that her husband was making her feel depressed, and that living with him
would be bad for her mental and physical health if she stayed with him. She can also say that
her husband got her to marry him by lying to her and hiding important facts, so she no longer
trusts him.

Pooja was shocked, among other things, when she found out that her husband had been
convicted of rape and spent 7 years in prison for it. This led her to decide to end the marriage
and get a divorce.
Now, in order to get a divorce under the Hindu Marriage Act, the petitioner must have been
married for at least one year and show that one of the reasons listed in Section 13 of the
Hindu Marriage Act is true.

Pooja can't use any of these reasons, even though she's been married for at least a year. Her
claims based on these reasons won't be heard. But she can ask for a divorce on the grounds of
mental cruelty, which will be hard to prove and is not a good choice in this case.

Aside from these reasons, there are some reasons that only the wife can use. One reason that
applies to this situation is listed in S. 13(2)(ii), which says that the wife can file for divorce if
her husband is guilty of rape. But the main reason Pooja can't claim it is because the section
says that the crime should have happened after their marriage was made official. But this
can't be true, because the crime happened almost ten years before they got married.

So, Pooja's divorce petition is invalid because she can't use any of the reasons listed in
Section 13 of the act.

Pooja's only possible way out is to use S.12 of the HMA, which deals with voidable
marriages

In subclause (1)(c) of the section, it is clear that if the petitioner's consent was obtained by
force, fraud, or misrepresentation by hiding important facts about the marriage, then the
marriage is not valid. Shravan lied by hiding the fact that he had been convicted of rape and
spent 7 years in prison. This was a very important fact. If Pooja had known this, she never
would have agreed to the marriage. So, in most cases, she could use this law to get her
marriage cancelled by getting a decree from a court with the power to do so.

But the facts show that even after Pooja found out the truth about Shravan's lie, she still chose
to live with him because she was willing to give it another chance. But the exceptions to S.
12(1)(c) in S. 12(2)(a)(ii) make it clear that if the petitioner continued to live with the other
party with their full consent, the petitioner cannot ask for the marriage to be void

Since it's clear that Pooja kept living with Shravan for 6 months after finding out about the
fraud, she can't ask for an annulment under S. 12(1)(c) because her case falls under the
exception in S. 12(2)(a)(ii) of the HMA. So, Pooja can't use the Hindu Marriage Act to get
anything done about it unless she can talk Shravan into a mutual divorce.