Woman Not Entitled To Maintenance Under Section 125 CrPC If First Marriage Subsists; Illegitimate Child Entitled: Allahabad High Court

"It is the moral duty of father to maintain his children who are unable to maintain themselves, whether the children are legitimate or illegitimate, whether married or not, as provided u/s 125(1)(b) Cr.P.C." Allahabad High Court, in a significant ruling, held that a woman who enters into a second marriage while her first marriage is still subsisting does not qualify as a "legally wedded wife" and is therefore ineligible for maintenance under Section 125 of the Code of Criminal Procedure (CrPC).

A single-judge bench of Justice Achal Sachdev observed that while such a woman may be denied maintenance, the biological father remains legally and morally obligated to maintain his minor children, regardless of their legitimacy.

The matter arose from a criminal revision filed by one Santosh Kumar against an order passed by the Family Court, Chitrakoot, which had awarded maintenance of Rs. 2,000 per month to his alleged second wife (Applicant No. 1) and Rs. 1,000 to their minor daughter (Applicant No. 2). The revisionist contended that the woman was already married to another individual and had not obtained a legal divorce at the time she began residing with him, thereby making their union legally invalid.

The primary questions before the court were whether a woman who enters into a relationship without dissolving her prior marriage qualifies as a "wife" under the ambit of Section 125 CrPC. Furthermore, the court was called upon to determine if a father can be absolved of his responsibility to maintain a child born out of such a relationship if the marriage itself is found to be non-existent in the eyes of the law.

Subsistence Of Previous Marriage Negates Status As 'Legally Wedded Wife'

The court meticulously examined the evidence and noted that the applicant woman had admitted during cross-examination that she was previously married to one Sharda Prasad and had two children from that marriage. Crucially, she admitted that she had not obtained a divorce from her first husband before she started residing with the revisionist. The court found that her first husband was alive at the time she claimed to have married the revisionist through a notarized compromise and Hindu rituals.

"From the perusal of evidence on record, it is clear that the applicant no. 1 does not qualify the term 'legally wedded wife' of opposite party, and the trial court has erred in passing the maintenance order in favor of applicant no. 1."

Proof Of Marriage Rituals Essential For Maintenance Claims

The bench highlighted that the trial court had already given a finding that the woman was unable to prove her marriage to the revisionist according to Hindu rites and rituals. Since the essential ceremonies were not established and the prior marriage subsisted, the court held that the legal requirements for a valid marriage under the Hindu Marriage Act were not met, thereby stripping her of the right to claim maintenance as a spouse.

Adultery And Mutual Consent Bars Under Section 125(4) CrPC

The Court reproduced Section 125(4) CrPC to emphasize the conditions under which a wife is barred from receiving maintenance. The provision stipulates that no wife shall be entitled to an allowance if she is living in adultery, or if she refuses to live with her husband without sufficient reason, or if they are living separately by mutual consent. The court applied the logic that a "wife" in the context of this section must necessarily mean a legally wedded wife.

"The trial court has also given finding to the effect that the applicant no. 1 was unable to prove that she was married to opposite party as per Hindu rites and rituals, and it also observed that her husband Sharda was alive when she started residing with Santosh."

DNA Report Establishes Paternity And Liability For Child Maintenance

Moving to the issue of the minor daughter’s maintenance, the court noted that the trial court had relied on a DNA report (Paper 54 Kha) which confirmed that the revisionist and the applicant woman were the biological parents of the child. The court emphasized that the biological father cannot escape his financial responsibility toward his children based on the legality of the parental relationship.

Father's Moral And Legal Duty To Maintain Illegitimate Children

The Court held that Section 125(1)(b) CrPC explicitly provides for the maintenance of children, whether they are legitimate or illegitimate. The bench remarked that it is the moral duty of a father to maintain his children who are unable to maintain themselves. Consequently, the finding of the trial court regarding the maintenance of the minor daughter was deemed "very well reasoned and justified," requiring no interference.

"The trial court has placed reliance on the DNA report... from which it is clear that opposite party is father of applicant no. 2 and is responsible for providing maintenance to her."

The High Court concluded that while the maintenance awarded to the woman must be set aside due to the lack of a valid marriage, the maintenance for the minor daughter must be sustained. The court observed that the trial court had rightly concluded that the revisionist is the father and is legally bound to support the child until she attains majority.

The criminal revision was accordingly partly allowed. The order of the Family Court was set aside only insofar as it pertained to the maintenance of the woman, while the order in favor of the minor daughter was upheld.

Date of Decision: July 10, 2026