JUDGMENT
N.L. Tibrewal, J.
1. An important question of general importance has been raised in the present petition which has been filed Under Section 482 Cr. P.C. by the husband in a proceeding Under Section 125 Cr. P.C. The question which calls for consideration is whether a wife is entitled to get maintenance Under Section 125 Cr. P.C. even her marriage was voidable and annulled by a decree of nullity Under Section 12 of the Hindu Marriage Act ?
2. In order to appreciate the controversy involved in the present case the necessary facts may be given. Non-petitioner Smt. Uganti was married to the petitioner when both of them were minors. Thereafter, she moved an application Under Section 125 Cr. P.C. for grant of maintenance which was allowed by the learned Munsif and Judicial Magistrate, Hindauncity on February 8, l990, and the husband was directed to pay her maintenance allowance at the rate of Rs. 400/- per month from the date of filing the application. For the arrears of the maintenance, three instalments were fixed by the Magistrate, but, it appears that the petitioner (husband) did not pay any amount towards the maintenance inspite of the order of the Magistrate.
3. During the pendency of the maintenance, proceedings, the husband-petitioner filed a petition Under Section 12 of the Hindu Marriage Act to annul (be marriage by a decree of nullity, and this petition was allowed, though by an ex-parte order, by the Court of Add). District Judge, Karauli dated 16-2-90.
4. In the background of the above facts, the wife moved an application under Sub-section (3) of Section 125 Cr. P.C. to issue a warrant for realisation of (be maintenance allowance and sentence the petitioner to imprisonment if the maintenance amount is not paid. The petitioner-husband also moved an application under Sub-section (3) of Section 127 Cr. P.C. to cancel the order granting maintenance.
5. To resolve the controversy raised in the petition, it is necessary to consider the relevant provisions of the Code of Criminal Procedure and Hindu Marriage Act, 1955. Chapter IX of (he Code provides for maintenance of wives, children and parents and the procedure of the same. Under Section 125, if the wife is neglected or refused to be maintained by her husband, and she is unable to maintain herself, the Magistrate may order her husband to make a monthly allowance for the maintenance of his wife, at such monthly rate not exceeding 500/- rupees in the whole. Then, Subsection (3) provides for the recovery of maintenance allowance due and also to sentence the husband to imprisonment if the maintenance allowance is not paid after the execution of the warrant. The explanation given Under Section 125 defines the wife as ‘wife’ includes a woman who has been divorced by or has obtained a divorce from her husband and has not remarried”. Section 126 provides the procedure of the proceedings under this Chapter. Then, Section 127 empowers the Magistrate to alter or cancel the order passed by him Under Section 125 Cr. P.C. under some circumstances Sub-section (2) and Sub-section (3) of Section 127 are relevant for the present petition and they are reproduced as under:-
“127. Alteration in allowance.
(2) Where it appears to the Magistrate (hat, in consequence of any decision of a competent Civil Court, any order made Under Section 125 should be cancelled or varied, be shall cancel the order, or as the case may be, vary the same accordingly.
(3) Where any order has been made Under Section 125 in favour of a woman who has been divorced by, or has obtained a divorce from her husband, (he Magistrate shall, if he is satisfied that-
(a) the woman has, after the date of such divorce, remarried, cancel such order as from the date of her marriage;
(b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customery or personal law applicable to the parties, was payable on such divorce, cancel such order,-
(i) in the case where such sum was paid before such order, from the date on which order was made,
(ii) in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman;
(c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance after her divorce, cancel the order from the date thereof.”
6. Some provisions of the Hindu Marriage Act, 1955 (hereinafter to be referred to as ‘the Act’) may also be referred which are relevant for the decision. Section 5 of the Act provides conditions for Hindu Marriage. One of the conditions is that the bridegroom had completed the age of 21 years and the bride the age of 18 years at the time of the marriage. Then, Section 11 enumerates the void marriages. Section 12 deals with voidable marriages and Section 13 deals with the divorce. For the sake of convenience, Section 11 and the relevant portion of Section 12 may be reproduced as under:-
“11. Void marriages-Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto (against the other party), be so declared by a decree of nullity if it contravenes any one of the conditions specified in Clauses (i), (vi) and (v) of Section 5.”
“12. Voidable marriages-(1) Any marriage solemnised, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely :-l(a) that the marriage has not been consummated owing to the impotence of the respondent; or.”
7. The marriage may be void, voidable or valid. In case of void marriage, it is void ab initio, but, in a case of voidable marriage, it stands annulled from the date of the decree of nullity which can be passed Under Section 12 of the Act on any of the grounds enumerated therein. If the’ marriage is valid, then, the marriage can be dissolved on the petition by the husband or the wife on any of the grounds mentioned Under Section 13 of the Act. Under Section 125 Cr. P.C., a divorced wife is also entitled to get the maintenance if she has not remarried or she has not received the whole of the sum which, under any customery or personal law applicable to the parties, was payable on such divorce. The definition of ‘wife as given Under Section 125, includes a woman who has been divorced by her husband and has not remarried, In other words, till the remarriage, a divorced woman remains a wife to be entitled to get maintenance Under Section 125 Cr. P.C., but, in case of voidable marriage, if the marriage is annulled by a decree of nullity Under Section 12 of the Hindu Marriage Act, the effect of such decree is that the wife no more remains a wife even for the purpose of maintenance Under Section 125 Cr. P.C. The definition of ‘wife’ given Under Section 125 includes a divorced woman. It does not provide that even after the marriage is annulled by a decree of nullity Under Section 12 of the Act, the wonrin remains a wife for the purposes of maintenance Under Section 125. The intention, of the legislature is clear from the explanation given Under Section 125 of the Code of Criminal Procedure.
8. Sub-section (2) of Section 127 of the Code of Criminal Procedure makes it clear that in consequence of a decision of a competent Civil Court, the order of maintenance made Under Section 125 Cr. P.C. has to be cancelled or varied by the concerned Magistrate. Once the Magistrate feels that the order should be cancelled or varied, then, it becomes obligatory and imperative for him to cancel or vary the order according to the decision of the Civil Court in view of the aforesaid express provision. The legislative intend is manifest in the language used in Sub-section (2) and the finding given by the Magistrate is not final. If there is a decision of a competent Civil Court, he should cancel the order accordingly. It is also reasonable that if there is a inconsistency between the decision of the Criminal Court and the decision of the Civil Court, in such a cafe, the decision of the latter should prevails in view of the fact that the proceedings Under Section 125 Cr. P.C. are somewhat of a summary nature. In order to meet she subsequent events created by a judgment of a Civil Court about the validity of the marriage, express provision has been made under Sub-section (2) of Section 127 Cr. P.C empowering the Magistrate and, rather, making obligatory for him to cancel or vary the order of maintenance according to the decision of a competent Civil Court. In the instant case, a competent Civil Court has annulled, the marriage by a decree of nullity Under Section 12 of the Hindu Marriage Act. The effect of the said decree is that the marriage stands declared to be null and void and the learned Magistrate should have given due effect to the said decree. The view of the learned Magistrate that even after the decree of nullity passed Under Section 12 of the Act, the wife was entitled to get the maintenance allowance is erroneous in law. The learned Magistrate has tried to distinguish between a void marriage and a voidable marriage and according to him, in case of only void marriage Under Section 11, the wife is not entitled to get maintenance while in case of voidable marriage, she is entitled to get the same even after the marriage is declared as nullity. This distinction drawn by the learned Magistrate is not sustainable in the eyes of law. The only difference between the void and the voidable marriage is that in the formal case, the marriage is void ab initio, void from the very inception and have to be ignored as not existing in law at all if, and when such a question arises, while in the latter case, the said marriage continues to be effective unless the aggrieved party exercises the right to void it. After the marriage is annulled by a decree of nullity, then, from that date, such marriage has the same effect as in the case of void marriage.
9. It has been contended by the learned counsel for the wife that a term ‘wife’ in Section 125 Cr. P.C. should be given a wider meaning so as to include therein not only a lawfully wedded wife but also a woman married in fact. It was also contended, that in any case, the marriage in the instant case was not void ab initio and the wife and the non-petitioner may be treated as a divorcee even after the marriage was declared void Under Section 12 of the Act by a decree of nullity. If a divorcee is held to be entitled to the benefits of the section, the wife in the instant case should also be brought under the purview to be entitled to maintenance Under Section 125 Cr. P.C. In my view, this argument cannot be accepted. The right of the wife to maintenance depends upon the continuance of her marriage status and once the status of husband and wife is declared to be null and void, the effect would be the same as in (he case of void marriage Under Section 11 of the Act. The legislature has given the benefit of the provisions of Section 125 Cr. P.C to a divorced woman so long as she did not remarry by including Clause (b) of the Explanation, but, no such provision has been brought in so as (o apply in the case where the marriage is declared null and void. The leiaislature decided to bestow the benefit of the section on a illegitimate child by express words, but, none are found to apply to a de facto wife where the marriage is void, ab initio or voidable and declared void by a decree of nullity. The benefit of maintenance under Sub-section (l)(a) is available only if the applicant is the wife of the person concerned. Therefore, the distinction drawn by the learned Magistrate that the marriage in the instant case being voidable, the wife was entitled to get the maintenance even after the decree of nullity is wholly erroneous in law. H^ should have given the effect to the decision of the Civil Court and on the basis of that, the proper course was to cancel the order of maintenance.
10. The next question that may arise is from what date the order of cancellation should be effective. The order of cancellation under Subsection (2) of Section 127 Cr. P.C. normally is effective prospectively. The language of Sub-section (2) of Section 127 empowers the Magistrate to cancel or vary the order according to the decision of the competent Civil Court and till then the order passed by him remains effective. So far the language used in the provision, it may be stated that (he order that may be pasted under Sub-section (2) of Section 127 shall be prospective in operation. The impugned order was passed in (he instant case on 3-1-91 and the Magistrate could have cancelled (be order of maintenance from that day.
11. Consequently, this petition is allowed in part. The impugned order of the Magistrate is modified to the extent that the non petitioner-wife shall be entitled to get the maintenance allowance Under Section 125 Cr. P.C. till January 3, 1991, and the said order is cancelled thereafter. The learned Magistrate shall proceed accordingly on the application filed by the wife under Sub-section (3) of Section 125 Cr. P.C.