Andhra HC (Pre-Telangana)
Nagireddi Sai Kumari W/O Veera ... vs Nagireddi Vara Nageswara Rao S/O Appa ... on 31 March, 2008
JUDGMENT G.V. Seethapathy, J.
1. This criminal revision case is directed against the order dated 03-03-2006 in M.C. No. 51 of 2003, on the file of the Family Court-cum-IV Additional District and Sessions Judge, Vijayawada, wherein the petition filed by the petitioner herein under 125 Cr.P.C., seeking maintenance of Rs. 2,500/- per month, was dismissed.
2. Heard the learned Counsel for the petitioner. None appeared for the respondent. Records are perused.
3. The petitioner filed M.C. No. 51 of 2003 alleging that her marriage with the respondent was performed on 16-02-1997, as per Hindu customs and rites and she is the second wife of the respondent, the first wife having died seven years prior to the marriage of the petitioner and at the time of marriage eight sovereigns of gold and one acre of land was given to her towards pasupukumkuma, that six months after marriage, the respondent started harassing the petitioner demanding her to sell away the one acre of land and also demanding Rs. 10,000/- as dowry. It is further alleged that on 22-03-2002 the respondent came home in a drunken state and beat her severely and the petitioner fearing repeated assaults on her, went to the house of her sister and that the respondent came there and again beat her causing bleeding injuries and obtained her signatures forcibly to the effect that she was voluntarily leaving the matrimonial home. The petitioner gave a complaint to the police and the same was registered as Cr.No. 341 of 2002 and during pendency of the said case, she joined the respondent and again she was forced to leave the company of the respondent on 10-02-2003, as there was no change in the attitude of the respondent. She alleged that the respondent never cared to provide maintenance to her though he was working as Welder in S.C. Railways and drawing Rs. 10,000/-J. I She, therefore, sought maintenance of Rs. 2,500/- per month on the ground that she has no means of livelihood. The respondent filed a counter in the M.C alleging that the petitioner was not the legally wedded wife and she was already married to another person, which marriage was subsisting. He would further contend that as the petitioner is not the legally wedded wife, she is not entitled for any maintenance.
4. During the course of enquiry, the petitioner was examined as P.W. 1 and the respondent was examined as R.W. 1. Ex. P-1 legal notice was marked on petitioner's side. Ex. B-1 certified copy of calender and judgment in C.C. No. 286 of 2002 on the file of the IV Munsiff Magistrate's Court, Vijayawada and Ex. B-2 certified copy of deposition of P.W. 1 in C.C. No. 286 of 2002 were marked on behalf of the respondent. After hearing both sides, the learned Judge, Family Court held that the petitioner is not entitled to claim any maintenance from the respondent as she was the legally wedded wife of some other person and the said marriage was subsisting.
5. It is not disputed that the petitioner gave a complaint to the police in Cr. No. 341 of 2002 alleging offence under Section 498-A IPC and after investigation police filed charge sheet. After full-fledged trial, the respondent herein was found not guilty and was acquitted by judgment Ex. B-1. In the said case also, the respondent herein contended that the petitioner was married to some other person. As seen from Ex. B-2 certified copy of deposition of P.W. 1 in C.C. No. 286 of 2002, she categorically admitted that she did not obtain divorce from her first husband. P.W. 1 admitted in the cross-examination in the present case i.e., M.C. No. 51 of 2003 also that previously she deposed before the IV Metropolitan Magistrate, Vijayawada in C.C. No. 286 of 2002 that she did not obtain divorce from her first husband, as per Ex. B-2. In re-examination, she reiterated that she did not file a case for dissolution of marriage by a decree of divorce against her first husband. The categorical admission made by petitioner as P.W. 1 in C.C. No. 286 of 2002 and M.C. No. 51 of 2003 supports the contention of the respondent that the petitioner was already married to some other person and the said marriage was subsisting, as it was not dissolved by divorce. She cannot, therefore, be treated as the legally wedded wife of the respondent. In view of subsistence of the first marriage of the petitioner, she is not entitled to claim any maintenance from the respondent, as the alleged marriage with him, even if true, is void.
6. In B. Malpathi v. Suseela 1978 (1) APLJ NRC 36, this Court held as follows:
A woman whose marriage is void ipso jure does not acquire the status of a wife and the statutory right to maintenance resting on such status under Section 125 of the Code. Such a woman therefore cannot successfully maintain an application for maintenance under Section 128 of the Act. No specific provision has been made in the Section itself for the provision of maintenance to a woman whose marriage is ipso jure void.
In the present case, the petitioner husband had a wife living at the time of his marriage with the respondent and that his marriage with the respondent was null and void under Section 11 read with Section 5(1) of the Hindu Marriage Act. Therefore, the respondent was not wife of the petitioner and she is not entitled to claim maintenance under Section 125 of the Code of Criminal Procedure.
7. In Yamuna Bai Ananta Rao Adhav v. Anant Rao Snivran Adhav 1988 (1) ALT NRC 81, while making reference in 1988 Crl. L.J. 793, the Supreme Court held as under:
Section 5(1) of the Hindu Marriage Act lays down for lawful marriage the necessary condition is that neither should have a spouse living at the time of the marriage. A marriage in contravention of this condition is, therefore, null and void. While the legislature has considered it advisable to uphold the legitimacy of the paternity of a child born out of a void marriage, it has not extended a similar protection in respect of the mother of the child.
The Court further observed (at page 797 (of Crl. L.J):
For the purpose of extending the benefit of the section to a divorced woman and an illegitimate child the Parliament considered it necessary to include in "the section specific provisions to the effect, but has not done so with respect to women not lawfully married.
8. Following the above decision, this Court in Sayanna v. Laxmi Bai and Ors. 1992 Crl. L.J. 1070, held that only first marriage of the husband is subsisting and first wife is living, the marriage of second wife is void ab initio and the second wife is not entitled to claim maintenance.
9. In the present case, the petitioner claims maintenance against the first respondent while admittedly she has not obtained any divorce from her first husband. Even according to the petitioner, her marriage with the first respondent took place during the subsistence of her first marriage with some other person. Section 5(1) of the Hindu Marriage Act imposes a condition that neither party should have a spouse living at the time of marriage, for such a marriage to be. lawful. As the marriage of the petitioner with the first respondent is said to have taken place during the subsistence of the first marriage of petitioner with some other person, the said marriage cannot be termed lawful nor can the petitioner be considered as the legally wedded wife of the first respondent.
10. In view of the principles laid down in the above decisions, the petitioner, not being the legally wedded wife of the first respondent, is not entitled to claim any maintenance from the first respondent.
11. The impugned order dated 03-03-2006 in M.C. No. 51 of 2003 passed by the learned Judge, Family Court, Vijayawada, dismissing the petition filed for maintenance by the petitioner does not call for any interference as the same does not suffer from any illegality or material irregularity. In the result, the criminal revision case is dismissed.