JUDGMENT
K.S. Kumaran, J.
1. The petitioner claiming to be the wife of the respondent herein filed a petition before the Judicial Magistrate 1st Class, Palwal under Section 125 of the Code of Criminal Procedure for maintenance from the respondent alleging that the marriage between her and the respondent took place about 14/15 years prior to the filing of that petition and that the relationship between them had become strained in view of the transfer of the property owned by the respondent to one Smt. Sudesh wife of Dharam Pal on 30.10.1987. The petitioner had filed a civil suit also questioning the transfer. According to the petitioner, thereafter the respondent had turned her out from his residence.
2. The respondent opposed this application on the ground that he was not at all married with the petitioner and that even otherwise he was already married to Smt. Attri, who had died a year prior to the filing of the counter.
3. Before the learned Magistrate, witnesses were examined on the side of the petitioner, and the respondent himself had appeared as a witness on his behalf. After consideration of the materials placed before him, the learned Magistrate came to the conclusion that the petitioner and the respondent were married, that the respondent had failed to maintain her and therefore directed the respondent to pay maintenance to the petitioner at the rate of Rs. 300/- per month from the date of the application. Aggrieved by this order, the respondent herein filed Criminal Revision No. 3 of 1992 before the Additional Sessions Judge, Faridabad. The learned Additional Sessions Judge, of course, confirmed the finding of the learned Magistrate that the petitioner herein was married to the respondent, but he found that at the time of the marriage between the petitioner and the respondent, the respondent had a living wife by the name Attri and, therefore, the marriage between the petitioner and the respondent during the subsistence of the respondent’s marriage with Attri was not valid. He also held that only a legally married wife is entitled to maintenance under Section 125 Code of Criminal Procedure. In support of this view, he also relied upon the decision of the Hon’ble Supreme Court in Smt. Yamunabai v. Amantrao, AIR 1988 Supreme Court 644= I (1988) DMC 205 (SC). Having come to such a conclusion that the marriage of the petitioner with the respondent was not valid, he allowed the revision setting aside the order of the learned Magistrate. It is against this order that the petitioner has approached this Court under Section 482, Cr.P.C.
4. I have heard the Counsel for both the sides.
5. Both the Courts below have found that there was a marriage between the petitioner and the respondent. The said finding cannot be said to be perverse. So, I find that there is no reason for interfering with the said concurrent finding of fact by the Courts below and the same is, therefore, confirmed. But so far as the legality of the marriage is concerned, learned Counsel for the petitioner contends the though the petitioner had stated that one Attri was the wife of the respondent and that her own marriage with the respondent had taken place about 14/15 years age, the respondent was still bound to prove that the marriage between him and the said Attri was legally a valid marriage, and he having failed to establish that, the learned Sessions Judge was not right in holding that the marriage between the petitioner and the respondent-herein was void. In this connection, he relied upon the decision of Hon’ble Supreme Court in Surjit Kaur v. Garja Singh and Ors., AIR 1994 Supreme Court 135=II(1993) DMC 443 (SC), wherein it was held that mere living together as husband and wife by itself would not confer a status of husband and wife and that there should be proof of the nature of the ceremonies performed. The learned Counsel for the petitioner also relied upon the decision of the Calcutta High Court in Mahdusudan Hazra v. State, 1990 Cr.L.J. NOC 138 (Cal), in support of his contention that there should be evidence to show that the first marriage was legal. But I find that these two decisions relied upon by the learned Counsel for the petitioner will be of no avail. The learned Counsel for the respondent contended that not only the petitioner has deposed before the learned Magistrate that Attri was the wife of the respondent but also she had not questioned the legality of the marriage between the said Attri and the respondent, which is. not disputed by the petitioner’s Counsel. Therefore, the learned Counsel for the respondent contends that there was no duty cast upon respondent herein to prove that there was a legal and valid marriage between him and the said Attri. I agree with the .learned Counsel for the respondent in this respect. I find that not only the petitioner has not questioned the legality of he marriage but she has also admitted that Attri was the married wife of the respondent. So, the respondent was not bound to prove the marriage by bringing in evidence regarding the ceremonies that were performed and that the marriage between him and the said Attri was a legal marriage. In these circumstances, when the respondent had already a wife living at the time of the marriage between the petitioner and the respondent, the marriage of the petitioner with the respondent is certainly not valid, and in view of the decision of the Hon’ble Supreme Court relied upon by the respondent, the petitioner will not be entitled to maintenance under Section 125 of the Code of Criminal Procedure.
6. After the dictation of this order in open Court, the learned Counsel for the petitioner stated that there has been a report in the Newspaper that the Hon’ble Supreme Court had ordered the grant of interim maintenance to a lady whose marriage was ultimately found to be not valid. He was, therefore, granted time to produce that judgment and to advance further arguments. It took some time for him to get the judgment and thereafter both the sides were also heard further.
7. The decision referred to by the learned Counsel for the petitioner has been reported in Bodhisattya Gautam v. Subhra Chakraborty (Ms), 1996(1) Supreme Court Cases 490. I have perused the above judgment rendered by the Hon’ble Supreme Court and I find that it has no application to the facts of the present case. What happened in the case before the Hon’ble Supreme Court was this. The respondent before the Hon’ble Supreme Court, a lady lodged a complaint against the appellant which was registered under Sections 312/420/493/496/498-A, IPC. The complaint showed that the parties were moving closely and the appellant had developed sexual relationship with the respondent as a result of which the respondent became pregnant. On her persuasion to marry her, the appellant took her before God and put Vermilion on her forehead accepting her as his lawful wife. But ultimately the appellant deserted her which led to the complaint. The appellant then filed a petition under Section 482, Cr.P.C. for quashing the complaint which was dismissed by the High Court. Thereupon the appellant approached the Supreme Court. The Hon’ble Supreme Court while dismissing the Special Leave Petition filed by him took SMO motu notice of the facts of the case and directed issue of notice to the appellant as to why he should not be asked to pay reasonable monthly maintenance to the lady during the pendency of the prosecution proceedings against him. After hearing the parties on that notice the Hon’ble Supreme Court observed that if the Court trying an offence of rape has jurisdiction to award compensation at the final stage, there is no reason to deny the Court the right to award interim compensation. So observing, the Hon’ble Supreme Court directed the appellant to pay the respondent Rs. l,000/- per month as interim compensation during the pendency of the criminal case before the Court of the Judicial Magistrate.
8. So, I find that the question whether a woman, whose marriage was not valid, can still claim maintenance under Section 125, Cr.P.C. did not at all arise for consideration and was also not decided by the Hon’ble Supreme Court. In fact as I have pointed out already though initially notice was issued to the appellant before the Hon’ble Supreme Court to show cause as to why interim maintenance shall not be granted to the respondent, ultimately the Hon’ble Supreme Court directed payment of interim compensation and not maintenance, and that too, for the period during which the proceedings were pending before the Magistrate on the complaint lodged by the respondent therein. Therefore, this decision does not help the petitioner.
9. The learned Counsel for the petitioner contended that the Hon’ble Supreme Court was pleased to grant the relief in exercise of their powers under Article 32 of the Constitution and this Court can give relief to the petitioner-herein under Section 482 of the Code of Criminal Procedure. Such a contention cannot be accepted. There is specific provision under Section 125 of the Code of Criminal Procedure for granting maintenance to a wife, and the petitioner had moved the Court of Judicial Magistrate 1st Class under that provision claiming maintenance on the ground that she is the wife of the respondent-herein. But after having failed in her attempt to get maintenance, since it was found that she is not the legally wedded wife of the respondent, the petitioner cannot say that this Court in exercise of the powers under Section 482, Cr.P.C. should grant maintenance. Therefore, this contention of the petitioner cannot be accepted. But I make it clear that it is open to the petitioner to move the appropriate Court for getting maintenance if she can otherwise do so in accordance with law. But, in view of my findings above, the petitioner is not entitled to any relief in the present proceedings.
10. Hence the petition is dismissed.
