Husband must prove existence of first marriage: SC

“When a plea of subsisting marriage is raised by the respondent-husband,it has to be satisfactorily proved by tendering evidence,” the apex court said.

A bench of justices H S Bedi and Gyan Sudha Mishra passed the ruling while setting aside an Andhra Pradesh High Court judgement which had ruled that husband Pyla Suri Demudu was not required to pay Rs 500 per month maintenance ordered by a magistrate as there was no proof of marriage as claimed by first wife.

The apex court rejected the argument of the husband that claim of maintenance by the second wife cannot be sustained unless the previous marriage of the husband performed in accordance with the Hindu rites having a living spouse is proved to be a nullity and the second wife,therefore,is not entitled to the benefit of Section of 125 Cr PC (maintenance) or the Hindu Marriage Act,1955.

“It is no doubt true that the learned judges in this cited case (Savitaben) had been pleased to hold that scope of Section 125 cannot be enlarged by introducing any artificial definition to include a second woman not legally married in the expression wife.”

“But it has also been held therein that evidence showing that the respondent-husband was having a living spouse at the time of alleged marriage with the second wife will have to be discharged by the husband”,the apex court said.