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Judgment
N.N. Sharma, J.—This revision is directed against order dated 5-10-81 recorded by Sri J.V.N. Jaiswal, learned IInd Additional Sessions Judge, Etawah in Criminal Revision No. 119 of 1980 by which he allowed the revision of opposite party No. 2 Anil Kumar Gupta and reversed the order dated 22-8-1980 recorded by Sri Jitendra Srivastava, Additional Munsif Magistrate Ist Class, Etawah allowing the maintenance application u/s 125 of Code of Criminal Procedure of the revisionist and awarding Rs. 150/- per month as maintenance to her from 22-8-1980.
Briefly stated the facts are that the revisionist filed an application u/s 125 of Code of Criminal Procedure in the Court of Judicial Magistrate concerned on 12-8-1978 alleging that she was married with Anil Kumar in accordance with Hindu rites on 25-(?)-1974; her earlier husband Munna Lal, step brother of Anil Kumar, was married to her in 1965 but he expired in 1971 leaving a daughter of that wedlock.
After her remarriage, they lived as husband and wife for about five years. A son was born to them. Subsequently, Anil Kumar developed bad habits and started drinking and she was given a beating also at the instigation of Smt. Chandra Sheela Gupta, mother of Anil Kumar who was already dissatisfied with the applicant-revisionist on account of insufficient dowry.
She was turned out of the house after fleeing her ornaments etc. on 6-8-1978. The husband was neglecting to maintain her. She had no means to maintain herself and claimed a sum of Rs. 400/- per month as maintenance from her husband who was in affluent circumstances.
Anil Kumar Gupta denied his marriage with Smt. Ramwati Gupta. He maintained that she was married with Munna Lai, his step brother in 1965 and gave brith to a daughter also who is at present aged about nine years. Character of Smt. Ramwati got loose after the death of Munna Lal and, therefore, she was turned out of the house by Sri Deo Dutta who had organised this marriage. He further alleged that he was aged about 22 years while Smt. Ramwati was about 30 years old. Other allegations were also denied.
After considering the oral and documentary evidence of the parties, learned Magistrate allowed the application and granted Rs. 150/- per month as maintenance to the wife. Opposite party No. 2 (revisionist) preferred Revision No. 119 of 1980 culminating in the impunged order.
Learned Revising Court found that Smt. Ramwati was within the prohibited degrees of Anil Kumar as defined by Section 3(g)(iii) of the Hindu Marriage Act 1955 as amended upto-date which reads as below:-
If one was the wife of the brother or of the father''s or mother''s brother or of the grand father''s or grand-mother''s brother of the other;
or.........
He further relied upon Section 5 of the said Act which lays down the conditions for a Hindu marriage. Sub-section (iv) of Section 5 of the aforesaid Act reads as below:-
the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;
Section 11 of the said Act defines void marriages and is worded as below;--
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
He found that the marriage was void as Anil Kumar was within the prohibited relationship of the revisionist and so she could not be treated as wife entitled to maintenance u/s 125 of Code of Criminal Procedure (Act No. II of 1974). In the result the revision was allowed. Aggrieved by that decision, this revision has been preferred.
I have heard learned Advocates for parties at length.
Learned Advocate for revisionist strenuously argued Before me that Section 125(1) Code of Criminal Procedure provides maintenance to wife unable to maintain herself. The word "wife" is not qualified by words "illegally married". His further contention was that Section 125 Code of Criminal Procedure was a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15 as reinforced by Article 39 of Constitution. Under such circumstances, there was no justification on the part of learned revising court to have narrowly construed the term "wife". In this connection, he relied upon Captain Ramesh Chander Kaushal Vs. Mrs. Veena Kaushal and Others, . A perusal of the facts of that case would go to show that in a divorce proceeding civil court passed an interim order for maintenance u/s 24 of Hindu Marriage Act and under these circumstances, the aforesaid observations relied upon by learned Advocate for revisionist were made. That is hardly in point.
Learned Advocate for revisionist further argued that even if a decree of nullity could have been passed on a petition u/s 12 of the aforesaid Hindu Marriage Act, it could not render the marriage void from the date of marriage vide Smt. Pushpa Devi v. Stale 1968 AWR 74. That case related to the trial of a criminal case u/s 494 IPC which had been stayed on account of the pendency of a petition u/s 12 of Hindu Marriage Act. It was held that normally the civil proceeding should have been stayed in cases of civil and criminal proceeding pending simultaneously. So this authority is clearly distinguishable.
The next authority relied upon by learned Advocate for revisionist has been reported in Smt. Durgawati v. State 1981 A CR 294. This case also related to a proceeding u/s 482 Code of Criminal Procedure arising out of the prosecution u/s 494 IPC. It was an application u/s 482 Code of Criminal Procedure directed against order dated 7-11-1977 discharging the opposite parties in a complaint case brought by the applicant wife against her husband etc. u/s 494 IPC. The observation relied upon by learned Advocate for revisionist head note (b) of the said authority is extracted below:-
(B)-Hindu Marriage Act, 1956, Sections 5(i)(iv)(v), 11--Marriage though null and void for contravening any of conditions of Section 5(i)(iv)(v) has yet to be regarded as subsisting fact cannot be said to be non est in law or a nullity so long as it is not declared to be null and void by a decree of nullity on a petition presented by either party against the other party to the marriage.
Thus, this authority is clearly distinguishable as it was not a case u/s 125 Code of Criminal Procedure correcting word "wife" as used therein.
The next authority relied upon by learned Advocate for revisionist has been reported in Kamani Devi @ Sakuntala Devi Vs. Sir Kameshwar Singh of Darbhanga, where it was held that even a woman married in Gandharva form, is entitled to maintenance. It was not a case relating to the marriage of persons within prohibited degrees. Although it was also observed therein that even if the jural relationship created contrary to shastric injunctions-person may well be entitled to maintenance.
The next authority relied upon by learned Advocate for revisionist has been reported in Boli Narayan Pawye Vs. Smt. Shiddheswari Morang, . It was a case of a woman who came in the life of a man and was treated by him as his wife and they lived together as such and were recognised as husband and wife by society and so it was held that such acceptance of a woman as a wife was entitled to declaration of her status as wife so as to bring her within the purview of Section 125 Code of Criminal Procedure. It was also not a case of marriage between two persons within prohibited degrees and is not in point.
The next authority relied upon by him has been reported in Dayal Singh v. Bhajan Kaur, AIR 1973 Punjab and Haryana 44. It was a case u/s 25 of Hindu Marriage Act and not a case u/s 125 Code of Criminal Procedure for maintenance and as such is wide off the mark.
The next authority relied upon by learned Advocate for revisionist has been reported in Govindrao Ranoji Musale v. Sou Anandibai, AIR 1976 Bombay 433 where it was observed that the words "wife" and "husband" could include second wife also during the subsistence of first marriage though such marriage may be nullity.
On the other hand, learned Advocates for opposite party No. 2 relied upon Divvanathan v. Javarani 1984 CriLJ 10 (Mad.) where it was observed that in order to attract Section 125 Code of Criminal Procedure a valid marriage was a condition precedent to the wife claimed for maintenance. If the marriage was invalid wife could not claim maintenance. It appears that the matter came before the Full Bench in Smt. Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav 1983 CriLJ 259 of the Bombay High Court where after a detailed discussion of various authorities, it was observed;--
Code of Criminal Procedure (2 of 1974), Section 125(1) -Term "wife" in Section 125(1)-Means only a legally wedded wife--Hindu woman whose marriage is null and void u/s 11, Hindu Marriage Act, 1955 by reason of contravention of Section 5(i) of that Act is not entitled to maintenance. (Hindu Marriage Act (25 of 1955), Sections 5(i)(11) Boli Narayan Pawye Vs. Smt. Shiddheswari Morang, . Dissented from.
It was further observed at page 262:-
.. Their object is to compel a man to perform the moral obligation which he owes to the society in respect of his wife and children by providing a simple, speedy, but limited relief. They seek to ensure that neglected wife and children are not left beggered and destituted on scrap heap of society and thereby driven to a life of vagrancy, immorality and crime for their subsistence. Thus Section 488 is not intended to provide for a full and final determination of status and personal rights of the parties. The jurisdiction conferred by the Section on the Magistrate is more in the nature of a preventive rather than a remedial jurisdiction. It is certainly not punitive.
It was a case u/s 488 of Old Code of Criminal Procedure corresponding to Section 125 of present Code and throws much light about the connotation of the word "wife" as used in the aforesaid Section
u/s 125 of Code of Criminal Procedure, even a second wife whose marriage is void in view of Sections 5 and 11 of Hindu Marriage Act was not entitled to claim maintenance. No assistance could be derived from the interpretation of Section 25 of Hindu Marriage Act in this regard.
According to the Concise Oxford Dictionary, "wife" means "married woman" especially in relation to her husband. It is not possible to hold that even if the marriage is null and void and prohibited by law, she should still be considered as the wife. The matter also was decided in Division Bench case of Bombay High Court reported in Bajirao Raghoba Tambre Vs. Tolanbai (Miss) and Another, . In that case other authorities were cited on this point which I need not reproduce here: So I respectfully agree with the observations made in the said authority and find that a wife whose marriage is in contravention of Sections 5 and 11 of Hindu Marriage Act cannot be treated as legally wedded wife who could successfully claim maintenance from the alleged husband.
The next contention was that no opportunity was afforded by the revising court to prove a custom or usage which could legalise such marriage between the two. This contention is also liable to rejection. A Karao form of marriage may be recognised amongst the Jats but not amongst the Vaisaya community to which the parties belong. In this connection, I may simply refer to the statement of Om Prakash (PW 3) a witness examined on behalf of revisionist who conceded in his cross examination that there was no custom or usage of remarriage with a widow amongst Brahmins or Thakurs or Vaisyas Castes. This was an exceptional case in which such remarriage was performed.
Moreover, in the petition for maintenance, there was specific averment in para 1 that the marriage was performed between the parties in accordance with Hindu rites. No custom or usage as argued by learned Advocate for revisionist was set up any where by wife or husband in this case. It was held in K. Kamakshi v. K. Mani, 1970(II) Madras Law Journal 477;-
Hindu Marriage Act (XXV of 1955) Section 5(iv) scope--Solemnisation of marriage under--Parties within the prohibited degrees of relationship--Few instances of such marriage, if could relax the condition in Section 5(iv).
The only instance prior to 1955 and two instances after 1955 showing marriage between parties within the prohibited degrees of relationship in the Dravide Brahmin community, are insufficient to make out a custom which would relax the condition imposed by Section 5(iv) of the Hindu Marriage Act of 1955.
In Balusami Reddiar v. Balakrishna Reddiar, AIR 1957 Mad 87, a custom was set up to marry one''s own daughter''s daugher amongst Reddiars of South India. It was held that such custom was opposed to decency or morality could not be recognised by law. A few instances in a community microscopic in nature, could not constitute a valid custom which a Court of law will recognise and enforce.
In the result, the revision fails and is dismissed.