The Allahabad High Court has held that a wife in a voidable marriage can't be denied maintenance until a decree of nullity is passed.

The Court was considering a Revision Petition against an order of the Family Court under Section 125 Cr.P.C., whereby the claim for maintenance by the Wife was refused.

The bench of Justice Rajiv Lochan Shukla observed, "....However, at the same time, it is necessary to comment upon the error committed by the learned Principal Judge in recording that merely because a marriage could be annulled, the wife loses her right to claim maintenance. Unless and until, a marriage, which is voidable, has been declared a nullity by a decree, the status of the revisionist as the legally wedded wife of the opposite party No.2 persists and all the rights that flow from the same continuous. Merely on a hypothetical consideration that the said marriage could be annulled as there was a concealment of the previous marriage or divorce from the side of the respondent No.2 which may or may not be considered to be in violation of Section 12(1)(c) of the Act, 1955, however, once there was no decree of nullity nor there being any evidence that such a decree has been sought by the revisionist against the respondent No.2, no finding on Section 125(4) Cr.P.C. could be recorded."

The Petitioner was represented by Advocate Bipin Kumar, while the Respondent was represented by the Government Advocate.

Facts of the Case

Counsel for the Petitioner argued that the sole ground, refusing grant of maintenance to the revisionist, as is reflected from the impugned order, is the provisions contained in Section 125(4) of the Code of Criminal Procedure, whereby, the Principal Judge while going through the statements of the Wife and the Husband has opined that the reason for the Wife not staying with the Husband on account of the fact that he had concealed the factum of his previous marriage and divorce. It was further argued that this finding recorded by the Principal Judge is absolutely perverse and no such finding could have been recorded from the statement of the revisionist from the pleadings that have been filed.

Reasoning By Court

The Court at the outset noted that the Principal Judge, Family Court arriving at the conclusion, on the basis of the evidence led by the parties, cannot draw an inference, which is alien to the contentions of the parties.

"A mere passing reference to the previous marriage and divorce being concealed from the revisionist could not lead to any conclusion that the revisionist was willfully avoiding her duties as a wife and was living separately from her husband without reasonable cause", the Court observed.

The Court held that a wife in a voidable marriage can't be denied maintenance until a decree of nullity is passed, while referring to the Supreme Court's decision in Sukhdev Singh Vs. Sukhbir Kaur, 2025.

"Once the provision which the learned Principal Judge refers to under the Act, 1955 itself does not dis-entitle the claim for maintenance then the relief under the general provision under Section 125 Cr.P.C. cannot be denied solely on the consideration that marriage would be voidable. Here, no proceedings have been been drawn to the notice of the Court where either of the parties had sought a decree for declaration of the marriage as a nullity as such, once marriage persists, the status of the revisionist as the legally wedded wife of the opposite party No.2 continues and not subject to challenge. The marriage itself has not been declared a nullity and in the absence of the same, denial of relief of maintenance on the incorrect assumption of the applicability of Section 12(1)(c) of the Act, 1955 was clearly illegal and perverse", the Court observed.

The Petition was accordingly allowed.

Cause Title: Sweta Jaiswal vs. State of U.P. and Another (2025:AHC:172508)

Appearances:

Petitioner- Advocate Bipin Kumar, Advocate Mohd. Naushad Siddiqui

Respondent- Government Advocate

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Allahabad High CourtJustice Rajiv Lochan Shukla

Sheetal Joon