The Madras High Court recently held that even if a marriage was not legal due to the existence of a first marriage, the second wife and the children born out of the second marriage will be entitled to maintenance under Section 125 IPC.

Justice K Murali Shankar of the Madurai bench was hearing a revision petition seeking review of an order passed by Family Court, Tirunelveli directing a man to pay a monthly maintenance of ten thousand rupees to his “wife” and their son and to pay the entire arrears of maintenance amount within a month.

The woman had earlier filed the maintenance petition contending that he had failed to maintain her and their son even though he was legally bound to maintain them. It was also submitted that he had demanded a sum of 25 lakh as dowry and when she could not meet the demand, he started avoiding her. She had also contended that he was getting a monthly salary of Rs. 50,000 and also getting more than Rs.90,000 as monthly rent from the 11 houses that he owned.

On the other hand, the man disputed the very marriage and paternity of the child. He submitted that he had married a different woman in 2011 and had a child from that marriage. He further contended that though a divorce petition was filed, the same was dismissed after trial and an appeal against the same is pending. Kumar also disputed his salary as claimed by the woman and submitted that he was getting only Rs.11,500 in hand and that he had been paying Rs.7000 as maintenance to his first wife and child. Thus, he contended that since there was no marriage between him and the woman and there was no relationship, he was not liable to pay maintenance.

From the documents produced, the court noted that the man’s first marriage was still subsisting. Though the second ‘wife’ had produced the marriage invitation, marriage photo, Birth Certificate of the child etc to prove the alleged marriage, the court noted that since the first marriage was still subsisting, the second marriage cannot be said to be valid even if proved.

The court also noted that when cell phone records and copies of WhatsApp messages were produced by the woman, he initially admitted that the messages were sent from his cell phone and subsequently said that he had lost his phone. However, the trial court noted that the messages were sent in 2019 and thus, his submission loses significance.

The court noted that when the man was asked whether he was ready to take a DNA test to prove paternity, he specifically said he was not willing.Thus, the court was satisfied that the couple were living together as husband and wife and from this relationship, their child was born.

The court also noted that though the man had argued that his salary was only Rs. 11,500, he had not produced any salary certificate or pay slip or any document from the employer to prove his income. Considering the same, the court noted that the trial court’s order of monthly maintenance of Rs 10,000 each for the woman and their child was not excessive.

Thus, the court dismissed the petition.

Case Title: Loyola Selva Kumar v Sharon Nisha