JUDGMENT
L. Mohapatra, J.
1. Petitioner in this application under section 482 of the Code of Criminal Procedure has challenged the order passed by the Judicial Magistrate First Class, Balasore rejecting her prayer for grant of maintenance under section 125 of the Cr, P. C. as well as the order passed in revision by the learned Sessions Judge, Balasore dismissing the same.
2. Case of the petitioner is that her marriage with the opposite party was performed as per Hindu rites and customes in the year 1991 in her father’s house and after the said marriage the petitioner lived with the opposite party as husband and wife. At the time of marriage, father of the petitioner had given Rs. 6000/- in cash, one cycle, gold ring etc. to the opposite party apart from other gold ornaments. After marriage opposite patty and his family members illtreated the petitioner, assaulted her and at times did not give her food as the petitioner could not fulfil the demand. Apart from other allegations with regard to ill-treatment it is stated that she was driven out from the house in 1992. There was a village punch and the matter was compromised and the petitioner was taken to the house of the opposite party. Even there after the opposite party continued to ill-treat the petitioner and on 5-10-1992 the petitioner was finally driven out from the house of the opposite party whereafter the opposite party not only deserted her but also neglected in maintaining her. Accordingly, an application under section 125, Cr. P. C. was filed for maintenance @ Rs 500/- per month.
3. Opposite party in his objection stated that he never married the petitioner according to the Hindu rites and customs and at the time of marriage both the parties were minors and the
marriage was forcibly solemnised against consent of the opposite party as well as his parents. Since the marriage is void, the opposite party filed a suit bearing O. S. No. 375 of 1992 in the Court of Subordinate Judge, Balasore seeking a declaration to the effect that the said marriage is void. It is further stated in the objection that the allegations of demand of dowry, ill-treatment to the petitiober is not correct. Several witnesses were examined on behalf of both parties and the learned Magistrate on examining the evidence on record came to a conclusion that since the parties were minors at the time of marriage and the validity of the said marriage is under challenge in a civil suit, the application under section 125, Cr. P. C. is not maintainable. Learned Magistrate further observed that it is open for the petitioner to file a petition in the above suit for interim maintenance instead of approaching the criminal court under section 125, Cr, P. C. .
In the revision filed before the learned Sessions Judge, Balasore same view was taken and the revision was dismissed.
4. Mr. J. R. Dash, learned counsel for the petitioner submitted that even though the petitioner and the opposite party were minors at the time of marriage, under section 11 of the Hindu Marriage Act, 1955 the marriage does not come null and void. He has relied upon a decision of this Court reported in A. I. R. 1977 Orissa 36 (Duryodhan Pradhan v. Bhagabati Dei) and submits that an application under section 125. Cr. P. C. is an independent proceeding and merely because a suit is pending challenging validity of the marriage, the petitioner under section 125, Cr.P.C. cannot be rejected on the ground of maintainability. Shri Dhal, learned counsel for the opposite party submitted that since the marriage was void, as admittedly both parties were minors at the time of marriage, question of payment of maintenance does not arise and under section 125, Cr. P. C. maintenance can be granted only when there is a valid marriage and the husband neglects or refuses to maintain his wife.
5. Coming to the question as to whether marriage is void one or not, reference may be made to sections 5 and 11 of the Hindu Marriage Act, 1955. Under section 5 of the Act
marriage may be solemnized between the two Hindus if certain conditions are fulfilled. One of such conditions is that the Bride-groom has completed age of 21 years and the Bride the age of 18 years at the time of marriage. Both the courts below have found that the petitioner and the opposite party were minors at the time of marriage. The next question is whether the said marriage is void or not. Section 11 of the Act prescribes that any marriage solemnized after commencement of the Act shall be null and void if it contravenes any one of the conditions specified in clause (i)(iv)(v) of section 5 of the Act. Therefore, even if the parties are minors at the time of marriage same cannot be a void marriage under section 11 ofthe Act.
This Court in a decision reported in A. I. R. 1977 Orissa 36 relying upon an earlier decision reported in I. L. R. 1970 (Cutt.) 1215 held that contravention of provision of clause (iii) of section 5 which prescribes the minimum age for marriage of Hindu may only results in punishment of the marrying spouses as prescribed under section 18 of the Act, but the marriage between them below the age mentioned in section 5(iii) will continue to be valid in law and enforceable in law and will not become null and void. Therefore, even if the petitioner and the opposite party were minors at the time of marriage it cannot be said to be void under section 11 of the Act and the marriage between them continues to be a valid one.
6. The second question whether during pendency of the civil suit petitioner can approach criminal court under section 125, Cr. P. C for grant of maintenance or not is concerned, it appears from the records that the suit was filed in the year 1992 in the Court of the Subordinate Judge. Balasore. There was a dispute as to whether rhe suit is pending or not and it was stated by Sri Dash, learned counsel for the petitioner that the suit had been dismissed for default, but from the certified copies produced by Shri Dhal, learned counsel for the opposite party it appers that an application under Order 9, Rule 9 of the C. P. C. had been filed which is pending disposal. No doubt as observed by the courts below tbe petitioner could approach the competent civil
court for grant of interim maintenance as the suit is still pending, but section 125 of Cr. P. C. no where prescribes that if suit is pending between the parties, with regard to validity of marriage an application thereunder cannot be entertained.
7. Learned counsel for the opposite party relied upon a decision reported in 1989 Crl. L. J, 2037 (G. Ramanathan v. Mrs. Revathy). In the aforesaid case the Madras High Court was of the view that when a competent civil court is already seized of the matter and when it is possible without incurring any expenditure or any other inconvenience to approach by way of a simple petition, the civil court so as to obtain maintenance, it is not proper on the part of the wife to go before the Magistrate for an order. The proper course is to approach the civil court which is already seized. Further the fact of approaching the Magistrate when the competent civil court is already seized would cause only judicial waste of time since the order obtained is ultimately liable to be cancelled under section 127. The observations made by the Madras High Court in the aforesaid decision speaks what is desirable when the matter is already subjudice before the Civil court. Since there is no prohibition under law for filing of application under section 125. Cr. P. C. even when the matter in dispute is pending before the civil court, application under section 125, Cr. P. C. cannot be rejected on the ground that it is not maintainable. Of course it is desirable that when the matter is pending before the civil court for convenience of parties an application for interim maintenance could also be filed in the civil proceeding, an applicant cannot be denied her right for filing such application under section 125, Cr. P. C. only because a civil proceeding is pending
8. Apex Court in a decision reported in 1999(1) O. L R. (S. C.) 387 (Santosh (Smt.) v Naresh Pal) held that in a proceeding for maintenance under section 325, Cr. P. C. learned Magistrate is expected to pass appropriate order being satisfied about the marital status of the parties Any order passed under section 125, Cr. P. C. will certainly be subject to the result of the civil proceeding and could be modified under section 127, Cr. P. C.
No final decision having been rendered in the civil proceeding, in my view, courts below should have entertained the application under section 125, Cr. P. C. and passed appropriate orders. If the courts below had jurisdiction to grant maintenance under section 125. Cr. P. C. refusal of the same only on the ground that the petitioner could approach the civil court for interim maintenance in the pending suit cannot be sustained.
I, therefore, allow the application, set aside the impugned order and remit back the matter to the trial court for consideration of the claim of the petitioner for grant of maintenance taking into consideration the evidence with regard to income of the opposite party. If during the pendency of the present proceeding before the learned Magistrate, the civil suit is concluded, it is open for the opposite party to bring the said fact to the notice of the learned Court which can be taken into consideration for grant or refusal of maintenance.
The Criminal Misc. Case is accordingly disposed of.
9. Crl. misc. case disposed of.