JUDGMENT
A.K. Laxmeshwar, J.
1. The above revision petition is directed against the order dated 15-4-1988 passed by the First Additional J.M.F.C. Gulbarga in Miscellaneous Case No. 122 of 1987 on his file awarding a monthly maintenance of Rs. 300/- per month to the respondent.
2. The facts of the case in brief are that the petitioner-wife filed a petition under Section 125 of the Cr. P.C. seeking a monthly maintenance allowance of Rs. 500/- per month to be paid by the respondent-husband. She has averred in the petition that she was married to respondent according to the customs of Rajput community on 11-5-1985 at Ram Mandir Brahampur area of Gulbarga. After marriage, she was taken to the house of respondent and both of them lived together as husband and wife for 1-1/2 years. During that period, it is alleged by the petitioner, that she was ill-treated and lastly she was deserted and sent out of his house. Therefore, she returned to the house of her mother and her mother tried her best to settle the differences between the petitioner and respondent. Therefore, the petitioner in her petition mentioned that respondent was getting a salary of Rs 1,500/-per month in .M.S.K. Mill, Gulbarga, and he is capable of paying a monthly allowance of Rs. 500/- per month to the petitioner. As the petitioner is unable to maintain herself, she filed the above petition for her maintenance.
3. The respondent has filed his objections, to the averments made
in the petition. The respondent denied the marriage and submitted that
he had already married one Rumali Devi in the year 1978, itself and got three children from her. His first wife was pregnant and she has gone to
deliver the third child in the month of April 1988. The respondent says
that he has got a disabled brother who is lame and blind and be is
depending on him and he has to maintain him also. He has got another
brother who is quite young and attends the school. Therefore, he submitted
that he has got a large family and the members of which are all depending
upon him for their livelihood. He denied the salary alleged by the
petitioner. He said that he gets an aggregate amount of Rs. 950/- per
month only. The petitioner knows stitching and she earns Rs. 20/- per
day. Therefore, he prays for dismissal of the petition.
4. The learned Magistrate after considering the material placed by both the parties allowed the petition and granted a maintenance of Rs. 300/- per month. The petitioner-husband filed the above Criminal Revision Petition against the order passed by the Magistrate.
5. Here in the case, the learned Counsel Sri C.M. Basavarya, appearing for the petitioner, vehemently submitted that this case is covered by the decision of the Supreme Court. In the instant case, the respondent-wife says that she is entitled for maintenance as she is the legally wedded wife. The learned Counsel Sri C.M. Basavarya submitted that he has already got first wife from whom he got three children. If at all if it is presumed that the marriage has taken place between the petitioner and respondent, it will be a second marriage. Though the marriage was conducted inconsistent with the system of Rajputs, it is a void marriage because second marriage cannot be contracted with the husband who has already got one wife living. Therefore, he relies upon a decision of the Supreme Court (in Smt. Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and Anr.). Head Head Note ‘B’ reads as under :-
(B) Criminal P.C. (2 of 1974), Section 125-Maintenance-Expression “wife”-Means legally wedded wife-Marriage of woman with man already having living spouse as per Hindu rites-Is complete nullity-She is not entitled to maintenance. (Hindu Marriage Act, Sections 11, 5(i)). (Evidence Act (1 of 1872) Section 115). Their Lordships have observed that:-
“The expression “wife” used in Section 125 of the Code should be interpreted to mean only a legally wedded wife. The word wife” is not defined in the Code except indicating in the Explanation to Section 125 its inclusive character so as to cover a divorce. A woman cannot be a divorcee unless there was a marriage In the eye of law preceding that status. The expression must, therefore, be given the meaning in which it is understood in law applicable to the parties. The marriage of a woman in accordance with the Hindu rites with a man having a living spouse is a complete nullity in the eye of law and she is, therefore, not entitled to the benefit of Section 125 of the Code.”
6. Relying upon this decision, the learned Counsel Mr. C.M. Basavarya submitted that even if it is presumed that the respondent-wife has married the petitioner-husband, it is a second marriage and Their Lordships have clearly laid down that a woman cannot contract a second marriage with a man who is already a living spouse, therefore, the marriage was celebrated between the petitioner and respondent. It is the petitioner’s husband’s second marriage. He has contracted the second marriage since the first wife was living having 2-3 children. Therefore, she is not entitled to maintenance according to this decision.
7. The learned Counsel Mr. C.M. Basavarya also pointed out Head Note ‘A’ in the same decision. Sections 5(1), 11, 12, 14, 16-Marriage with person having living spouse-Is null and void-Cannot be treated as voidable under Section 12, it is a marriage between the petitioner and respondent when the petitioner husband’s first wife is living. Therefore, it is covered by this decision and it is a void marriage and therefore she is not entitled for any maintenance. There is some force in the contention advanced by Mr. C.M. Basavarya, learned Counsel for the petitioner.
8. The petitioner has examined his first wife who has supported the petitioner saying that she is his wife having three children. Therefore, I hold that there is some force in the contention advanced by Mr. C.M. Basavarya.
9. In the result, Criminal Revision Petition is allowed, the order of the learned J.M.F.C. is set aside.