R.C.Deo Sharma - (1.) THROUGH this application under Section 482 CrPC the applicant has prayed that the proceedings in Criminal Case No. 46 of 1980. Smt. Saraswati Devi v. Purshottam Day Shukla, under section 125 CrPC pending in the court of the Judicial Magistrate, Gonda, be quashed. It will appear that the opposite party Smt. Saraswati Devi has made an application under section 125 CrPC against the applicant Purshottam Das Shukla alleging that the said applicant was first married to Smt. Kishore Devi about thirty years back but when no child was born to them he married the opposite party about fifteen years back in accordance with Hindu rites. About a couple of years after this second marriage, the applicant got a son from his first wife whereafter he started neglecting the opposite party and ultimately abandoned her by taking her elsewhere. She tried to persuade the applicant to take her back and maintain her but he did not agree and finally refused to maintain her. She started living with her father who was a petty agriculturist and who could not maintain her for long and consequently she prayed for Rs. 350/- per month to be awarded as maintenance. The applicant was said to be Accounts Clerk in the North Eastern Railway at Gorakhpur and possessed sufficient agriculture land. His monthly income was assessed at Rs. 3000/- per month as he had a house as well which was let out on rent.
(2.) THE claim was resisted by the applicant. He denied the second marriage with the opposite party and said that he had already an issue from his first wife and had never married the opposite parity. It was denied that he had so much income as alleged and said that his monthly salary was Rs. 700/- and he had no house at Gorakhpur which was said to have been let out on rent. The applicant's contention in this application is that the opposite party's application for maintenance was not at ail maintainable on her own allegations because assuming for a moment that she was married to the applicant some fifteen years back as alleged the marriage was void ab initio in view of the fact that admittedly the applicant had an earlier wife living.' Other pleas were also raised but since the matter can be disposed of on the preliminary point itself it is not necessary to mention in detail the other pleas raised. It was, however, contended that the proceedings if allowed to continue would amount to abuse of the process of court and unnecessary harassment to the applicant and hence the proceedings be quashed. I have heard the learned counsel for the parties at some length. Reliance has been placed by the applicant's learned counsel on a Division Bench decision of this Caurt in Naurang Singh v. Smt. Sapla Devi, 1968 ALJ 637. That was a case under section 488 of the Code of Criminal Procedure. 1898 and it was held that the marriage with a woman while the first wife was living was void ab initio under section 5 read with section 11 of the Hindu Marriage Act and consequently the second wife had no right to claim maintenance from the husband. So far as section 125 of the Code of Criminal Procedure, 1973, is concerned, there is no material difference in the provisions as contained in the earlier Code, namely, section 488 of the Code of Criminal Procedure, 1898. What is required for a wife in order to claim maintenance is to prove that she was married to the person; concerned and that the marriage was lawful according to the personal law applicable to the parties or in accordance with any other law for the lime being in force. Section 125 provided for granting maintenance to the wife as also to childern whether legitimate or illegitimate. So far as the wife was concerned, it was not qualified by any words denoting legitimacy or illegitimacy as was the case with children. This clearly meant that the wife in order to be entitled to claim maintenance must be the lawfully married wife and in addition the marriage should be valid one according to the law applicable to the parties. As section 5 of the Hindu Marriage Act, 1955, which was admittedly in force when the opposite party claimed to have been married with the applicant, provides that there should be no spouse living at the time of the marriage it is obvious that the marriage of a person with a second wife while the first was still alive and had not been lawfully divorced would be void ab initio. It may be observed that such marriage is void and not merely voidable and consequently it is not necessary to take out any proceedings to have the marriage declared void although by way of abundant caution one may seek a decree of nullity. The case of Naurang Singh (supra) is fully applicable to the facts of the present case.
(3.) IT was argued by the learned counsel for the opposite party on the strength of Zohara Khatoon v. Mohd. Ibrahim, AIR 1981 SC 1243 that the marriage need not be a valid marriage under personal law applicable to the parties as it was sufficient for the parties claiming maintenance under section 125 CrPC that the parties should be married. I am unable to agree with the contention because no such principle of law was laid down by the Supreme Court in the case of Zohara Khatoon. The: matter under consideration in that case was whether even after divorce or a decree or dissolution of marriage, the woman was entitled to claim maintenance from her erstwhile husband. IT was held that in view of Explanation (b) appended to sub-section (1) of section 125 CrPC the term "wife" included not only a woman who has been divorced by or has obtained a divorce from her husband but also a woman who has obtained a decree for dissolution of marriage under the Dissolution of Muslim Marriage Act, 1939, the reason being that in the case of such dissolution also the resultant factor was a divorce between the husband and the wife. IT was held that the provisions contained in section 488 of the old Code or section 125 of the new Code provided a summary remedy for seeking mainte- nance even though the application of any other law on the subject was also not totally excluded. The following observations made by the Supreme Court are relevant; "...At the same time, it cannot be said that the personal law of the parties is completely excluded for all purposes. For instance, where the validity of a marriage or mode of divorce or cessation of marriage under the personal law of a party is concerned that would have to be determined according to the said personal law." IT will appear from the above that even for proceedings under section 125 CrPC it was necessary to look to the relevant provisions of the personal law applicable to the parties if the validity of a marriage or the mode of divorce or cessation of marriage was; in question and these matters were to be determined according to the personal law applicable to the parties. If therefore, the question of marriage between the parties was involved then in order to judge its validity the provisions of the Hindu law applicable to the parties had to be looked into and in that event section 5 read with section 11 of the Hindu Marriage Act, 1955 would clearly indicate that such a marriage between the parties where the husband had already his first wife living, would be void. A right to claim maintenance has been conferred on a wife which term clearly means a lawfully married wife. That being so, the opposite party admittedly being the second wife of the applicant and the said second marriage having taken place at a time when the applicant's first wife was still living, the marriage cannot be said to be valid in the eyes of law, and she could not therefore;, claim maintenance under section 125 of the Code of Criminal Procedure. 'The proceedings pending before the learned Magistrate therefore, deserve to be quashed as their continuance would only amount to unnecessary ligigation between the parties and abuse of the process of the Court. The application is accordingly allowed. The proceedings in Criminal Case No. 46 of 1980 Smt. Saraswati Devi v. Purshottam Das Shukla under section 125 of the Code of Criminal Procedure pending in the court of the Judicial Magistrate, Gonda, are hereby quashed. Application allowed.;