JAIPAL RAM v. THE STATE OF BIHAR & Ors.

that first wife was alive. By the alleged marriage two children, namely, opp parties 3 and 4 were born. The petitioner later on treated opp party no.2 badly and as such she was compelled to leave her matrimonial house with two children. Thereafter, she filed an application under section 125 Cr.P.C. seeking maintenance for herself as well as for her two children. The trial court after considering the materials on record allowed a sum of Rs 2000 in totality towards maintenance of opp party no no.2, Lal Pari Devi and her two children. The petitioner contends that the impugned order dated 16.1.2008, - 2 - passed by the Principal judge, Family Court, Bettiah is bad in law as opp party would not be entitled to maintenance in view of section 5, 11 and other provisions of the Hindu Marriage Act. He submits that the expression ‘Wife’ both under the Hindu Marriage Act as well as section 125 Cr.P.C. refers to a legally wedded wife. The marriage of a woman with a Hindu man already having a living spouse is a nullity in view of section 5(1) read with section 11 of the Hindu Marriage Act. In support of his contention, he relies upon a decision of the Apex court rendered in case of Smt Yamonabai Anantarao Adhav versus A.S.Adhav and another, reported in AIR 1988 Supreme Court, 644. The Apex court in the aforesaid case observed that word ‘Wife’ is not defined in the Code, except indicating in the Explanation to Section 125 Cr.P.C. that it would include a divorced wife also. A woman thus 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 to be applicable to the parties. Section 5(1) of the Hindu Marriage Act, 1955 states that marriage may be solemnized between any two Hindus, if neither party has a spouse living at the time. As per section 11 of the Hindu Marriage Act, 1955, any marriage solemnized in violation of aforesaid provision is void. The marriage of a woman as per Hindu rites, with a man having a living spouse is a nullity and the woman, therefore, would not be entitled to the benefit of section 125 of the Code. It is admitted fact that opp party no.2 married the petitioner during the life time of the first wife, namely Sonamati Devi who cannot be treated as legally wedded wife under section 125 Cr.P.C. As such, she - 3 - would not be entitled to maintenance under the aforesaid provision. However, the children begotten from such marriage would be still entitled for maintenance under section 125 1(b) Cr.P.C., which is quoted for easy reference:-

#125. Order for maintenance of wives, children and parents.- (1) if any person having sufficient means neglects or refuses to maintain- (a) xx xx xx xx (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (c ) xx xx xx xx (d) xx xx xx xx Thus, the opp party no.2, who married the petitioner during life time of his 1st wife, though with her consent, would not be entitled to maintenance under section 125 Cr.P.C. However her children, opp parties 3 and 4 born from the aforesaid wedlock would be entitled to the maintenance under section 125(1)(b) Cr.P.C. Thus the maintenance allowed to wife and two children opp parties is reduced to 2/3rd of total amount of Rs 2000/-. In other words the petitioner would be still liable to pay a sum of Rs 1400/- towards maintenance of opp parties 3 and 4 through opp party no.2, their mother and natural guardian. The petitioner must deposit the arrears in the court below at the earliest, which would be withdrawn by the opp party no.2 namely Lal Pari Devi. With the aforesaid observations, the revision application is