JUDGMENT
Chandramauli Kr. Prasad, J
1. This application has been filed for quashing the order dated 22.8.2002 passed by the Sub-Divisional Judicial Magistrate, Jehanabad in Misc. Case No. 17 of 2000 (Trial No. 186 of 2002), whereby the prayer made by the petitioner for grant of maintenance under Section 125 of the Code of Criminal Procedure has been rejected. Further prayer made by the petitioner is to quash the order dated 13.1.2004; passed by the Sessions Judge, Jehanabad in Criminal Revision No. 73 of 2003, whereby the revision preferred against the aforesaid order has been dismissed.
2. Short facts giving rise to the present application are that the petitioner filed application for maintenance under Section 125 of the Code of Criminal Procedure, inter alia, alleging that he married Opposite party No. 2 according to Hindu rites in the year 1980 and excepting for the brief period lived as husband and wife till December 1999. Petitioner has herself averred in her application that her husband opposite party No. 2 was married from before but had married her again, concealing the aforesaid fact as he had no child from the first marriage. The learned Magistrate on the plea of the petitioner itself found that her marriage cannot be said to be a valid marriage and therefore, not entitled for maintenance under Section 125 of the Code of Criminal Procedure. Revisional Court agreeing with the same, by the impugned order, has dismissed the revision application.
3. Mr. S.R.C. Pandey, appearing on behalf of the petitioner submits that the heading of Section 125 of the Code of Criminal Procedure, hereinafter referred to as the ‘Code’, provides for order for maintenance of wives and, as such, petitioner cannot be denied maintenance only on the ground that she happens to be the second wife. In support of his submission he has placed reliance on a judgment of the Supreme Court in the case of Narinder Pal Kaur Chawla v. Manjeet Singh Chawla, , and my attention has been drawn to paragraph 9 of the judgment which reads as follows :
As the legal right of the second wife to claim maintenance under the Act and its quantum are hotly contested issues in the main case, we refrain from expressing any opinion on merit of the claims and contentions of the parties. For the purpose of fixing appropriate amount of interim maintenance, we may assume that the financial position of the husband is such that he can easily pay a sum of Rs. 1500/- per month as interim maintenance without disturbing the right of separate residence provided to the wife on the second floor of the husband’s premises.
4. I do not find any substance in the submission of the learned Counsel and the authority relied on is clearly distinguishable. The expression wife used in Section 125 of the Code means only a legally wedded wife. The word wife has not been defined in the Code except indicating in explanation (b) to include a women who has been divorced or has obtained a divorce and not remarried. The term wife, therefore, has to be given the meaning in which it is understood in law applicable to the party. Undisputedly, the party are Hindus and the marriage according to the petitioner herself having taken place in the year 1980 shall be governed by the provisions of Hindu Marriage Act. Section 5 of the Hindu Marriage Act provides for conditions for a Hindu Marriage and Section 5(i) thereof provides that neither party should have a spouse living at the time of marriage as one of the conditions for a Hindu marriage. Section 5(i) of the Act which is relevant from the purpose reads as follows :
5. Conditions for a Hindu Marriage.–A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely : (i) neither party has a spouse living at the time of the marriage;
xxx xxx xxx
5. Section 11 of the Hindu Marriage Act, provides that marriage solemnized after the commencement of the Act shall be null and void if it contravenes the conditions specified in Clause (i) of Section 5 of the Act. Same reads as follows ;
11. Void maniages.–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), (iv) and (v) of Section 5.
6. According to the petitioner’s own showing her marriage had taken place during the life time of the first wife of her husband and therefore petitioner’s marriage in accordance with the Hindu rites with a man having a living spouse is complete nullity. In my opinion, marriage of a Hindu Woman with the Hindu man with a living spouse performed after coming into force of the Hindu Marriage Act, 1955 is null and void and once it is found so the woman is not entitled to maintenance under Section 125 of the Code. Reference in this connection can be made to a decision of the Supreme Court in the case of Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and Anr. , in which it has been held as follows :
8.–We, therefore, hold that 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 he is not entitled to the benefit of Section 125 of the Code. The appeal is accordingly dismissed. There will be no order as to costs. During the pendency of the appeal in this Court some money was paid to the appellant in pursuance of an interim order. The Respondent shall not be permitted to claim for its refund.
7. The Supreme Court considered this question in the case of Bakulabai and Anr. v. Gangaram and Anr. which reads as follows :
We have by our judgment in Criminal Appeal No. 475 of 1983 (Smt. Yamunabai v. Anantrao Shivram Adhav) delivered today held that the marriage of a Hindu woman with a Hindu male with a living spouse performed after the coming in force of the Hindu Marriage Act, 1955, is null and void and the woman is not entitled to maintenance under Section 125 of the Code.’
8. The Supreme Court had the occasion to consider this question in the case of Khemchand Om Prakash Sharma v. State of Gujarat and Anr. in which it has been held as follows :
The short question that arises for consideration in this appeal is whether the respondent Jasumatiben, who claimed maintenance, being the wife of the applicant, can be allowed any maintenance on the admitted position that the applicant’s first wife is alive and there has been no annulment of marriage by a decree of divorce or otherwise. During the subsistence of the first marriage, any second marriage is null and void, and therefore, the Courts below committed a mistake in granting maintenance in favour of Jasumatiben, who claimed maintenance as the second wife of the applicant. We, therefore, set aside the grant of maintenance in favour of Jasumatiben alone, needless to mention the children, namely, Trupti and Vaishali will continue to get maintenance, as directed.
9. As regards the authority of the Supreme Court in the case of Narendra Paul Chawla (supra) relied on by Shri Pandey, the Supreme Court has not ruled that the second wife can claim maintenance under Section 125 of the Code. In fact the Supreme Court was considering the grant of maintenance under Section 18 read with Section 20 of the Hindu Adoption and Maintenance Act and as the order which fell for consideration was for payment of interim maintenance and in those circumstances, the Supreme Court refrained “from expression any opinion on merit of the claims.” Thus this judgment in no way supports the case of the petitioner.
10. Mr. Pandey, then submits that the petitioner was not informed about her husband’s earlier marriage and in fact her marriage had taken place after concealing the first marriage and, as such, her marriage cannot be said to be null and void.
11. I do not find any substance in the submission of the learned Counsel. The Hindu Marriage Act provides for conditions of valid marriage and one of the conditions is that either party of the marriage must not have a living spouse. Undisputedly, petitioner’s husband had a living spouse at the time of marriage and her marriage cannot be saved only on the ground that said fact was not known to her or concealed from her. I am of the opinion that her lack of knowledge about her husband’s earlier marriage would be of no avail. Reference in this connection can be made to a decision of the Supreme Court in the case of Yamunabai Anantrao Adhav, (supra) in which it has been held as follows ;
7. Lastly it was urged that the appellant was not informed about the respondent’s marriage with Litabai when she married the respondent who treated her as his wife, and, therefore, her prayer for maintenance should be allowed. There is no merit in this point either. The appellant cannot rely on the principle of estoppel so as to defeat the provisions of the Act. So far as the respondent treating her as his wife is concerned, it is again of no avail as the issue has to be settled under the law. It is the intention of the legislature which is relevant and not the attitude of the party.
12. Mr. Pandey, then submits that the power to declare a marriage to be void vests with the Civil Court and so long such a declaration is not made petitioner is entitled to get maintenance under Section 125 of the Code.
I do not find any substance in the submission of the learned Counsel. In my opinion, the Court exercising the power under Section 125 of the Code of Criminal Procedure, gets the jurisdiction to pass order for maintenance of wife only when it is satisfied that the person claiming is legally wedded wife. If on the material on record this jurisdictional fact is not established, the Court exercising the power under Section 125 of the Code does not get jurisdiction to pass any order. On petitioner’s own showing her marriage with her husband was during the subsistence of the first marriage and therefore void and hence the contention of Mr. Pandey that so long it is not declared to be so, petitioner is entitled for maintenance is fit to be rejected.
13. In the result, I do not find any merit in the application and it is dismissed in limine.