A significant share of contested maintenance litigation in Delhi involves marriages with a legal defect: a ceremony performed while an earlier spouse was alive, a marriage later declared void, a long cohabitation never solemnised at all. The respondent's defence is always the same — no valid marriage, no maintenance. The law's answer is more textured. Each maintenance statute defines its beneficiary differently, and a claim that fails under one may succeed under another.
Three statutes, three definitions of the claimant
The person entitled to maintenance is defined separately in each statute, and the definitions do not overlap neatly. That mismatch is what gives a well-advised claimant options — and a well-advised respondent defences.
| Statute | Who can claim | Effect of a void / second marriage |
|---|---|---|
| Section 144 BNSS (old Section 125 CrPC) | "Wife" (including a divorced wife not remarried), children, parents | The strictest forum. A marriage void for bigamy is the classic defence; but the marriage is tested only prima facie, and equities weigh against a man who suppressed his subsisting marriage. |
| Sections 24 and 25, Hindu Marriage Act | Either spouse, in proceedings under the Act | The most forgiving forum. Interim maintenance and permanent alimony are available even in annulment proceedings, since relief flows from the matrimonial proceeding itself. |
| Section 20, DV Act | Aggrieved woman in a domestic relationship, including one "in the nature of marriage" | Validity of marriage is not the test; the quality of the cohabitation is. Shared household, duration, social presentation as spouses are what matter. |
The Section 144 battlefield
Because the summary remedy says "wife", respondents litigate the word. Three practical rules govern how Delhi Magistrates approach it. First, the proceeding is summary: the Magistrate takes a prima facie view of the marriage and does not conduct a matrimonial trial — strict proof of every ceremony is not demanded where the couple lived and were accepted as spouses. Second, concealment matters: where the man married the claimant while hiding a subsisting marriage, courts are reluctant to let him plead his own bigamy to defeat her claim. Third, the children's claim is severable and unaffected — it should always be pleaded independently, so that even a successful attack on the marriage leaves the children's maintenance intact.
The Hindu Marriage Act route
Where annulment proceedings are on foot — a petition under Section 11 to declare the marriage void, or under Section 12 to avoid it — the economics change. Section 24 gives maintenance pendente lite and litigation expenses to the spouse without independent income, and Section 25 permits permanent alimony at the time of passing "any decree", which includes a decree of nullity. The woman respondent to an annulment petition is therefore not remediless: the very proceeding brought to erase the marriage supports her interim and permanent maintenance claims within it.
The DV Act safety net
For relationships that were never solemnised, or where the Section 144 objection looks strong, the DV Act supplies the widest doorway. Section 2(f) recognises a relationship "in the nature of marriage"; Section 20 monetary relief includes maintenance. The forensic focus shifts from ceremony to cohabitation: duration of the relationship, shared household, pooling of resources, children, and how the couple presented themselves socially. A casual or concealed relationship will not qualify; a marriage-like union will, even without a valid marriage.
Claimant's strategy checklist:
- Plead the marriage and the cohabitation — ceremonies, photographs, joint documents, children's birth records.
- File the children's claim as an independent head under Section 144 BNSS.
- If annulment proceedings exist, move under Section 24 HMA immediately within them.
- Where the "wife" objection is serious, lead with the DV Act application under Sections 12 and 20.
- Disclose all parallel claims; courts adjust overlapping maintenance rather than permit double recovery.
A caution both ways: These principles operate on the civil, protective side of the law. Bigamy itself remains an offence, and a claimant's remedies do not depend on prosecuting it; equally, a respondent who defeats a maintenance claim on the "wife" point has not thereby escaped the DV Act, the HMA forums or the children's claims. The statutes were designed to close, from different directions, the same gap: dependency created by a relationship the law will not fully recognise.
Frequently Asked Questions
Can a second wife claim maintenance under Section 144 BNSS?
The summary remedy uses the word "wife", and a woman whose marriage was solemnised while the man's first marriage subsisted faces the objection that she is not legally a wife. Courts, however, decide the marriage question in these proceedings only on a prima facie standard, lean in favour of the claimant where the man himself concealed his earlier marriage, and protect children of such unions unconditionally.
Do children of a void marriage get maintenance?
Yes, without qualification. Legitimate or illegitimate, children are entitled to maintenance under Section 144 BNSS, and Section 16 of the Hindu Marriage Act confers legitimacy on children of void and voidable marriages. The defect in the parents' marriage never defeats the child's claim.
What does the Hindu Marriage Act offer where the marriage is void?
Sections 24 and 25 operate in proceedings under the Act itself — including petitions to declare a marriage void. Maintenance pendente lite under Section 24 and permanent alimony under Section 25 can be granted even where the marriage is ultimately annulled, because the jurisdiction flows from the proceeding, not from the validity of the marriage.
How does the DV Act treat relationships without valid marriage?
The Act protects women in a "relationship in the nature of marriage" — a domestic relationship where the couple lived together in a shared household. A woman who cannot clear the "wife" threshold of Section 144 BNSS may still obtain monetary relief and maintenance under Section 20 of the DV Act if the relationship bears the marks of marriage-like cohabitation.