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1. The facts giving to this revisional application are not many and not much in dispute. Respondent No. 1 herein preferred one application under Section 125 of the Cr. P.C. claiming maintenance from the petitioner on the ground that she is lawfully married wife and she was deserted by him and he has sufficient income to maintain her and she is unable to maintain herself. It is not necessary to set out in detail her pleading in her application for maintenance under Section 125 of the Cr. P.C. That application was made in the Court of the Metropolitan Magistrate (Court No. 10) at Ahmedabad. It came to be registered as Criminal Misc. Application No. 253 of 1988. She made therein one application for claiming interim maintenance till her application for maintenance under Section 125 of the Cr. P.C. was heard and finally decided. It appears to have been taken on record as Exh. 3. The petitioner appears to have filed his reply thereto and resisted it mainly on the ground that his marriage with respondent No. 1 herein was a nullity in view of the fact that his first marriage with one Shardaben was subsisting at that time. The learned Metropolitan Magistrate of Court No. 10 at Ahmedabad, by his order passed on 13th December, 1989 below the application for interim maintenance at Exh. 3 in Criminal Misc. Application No. 253 of 1988, ordered it to be heard along with the main application for maintenance. Aggrieved thereby, respondent No. 1 herein invoked the revisional jurisdiction of the Sessions Court of Ahmedabad under Section 397 of the Cr. P.C. for questioning the correctness of the aforesaid order passed by the learned trial Magistrate below her application for interim maintenance. It came to be registered as Criminal Revision Appl. No. 40 of 1990. If appears to have been assigned to the learned Additional Sessions Judge of Court No. 2 of the City Sessions Court of Ahmedabad. By his judgment and order passed on 27-3-1990 in Criminal Revision Application No. 40 of 1990, the learned Additional Sessions Judge accepted the wife's application and awarded the interim maintenance at the rate of Rs. 400/- per month from the date of her interim maintenance application. The aggrieved husband has thereupon invoked the further revisional jurisdiction of this Court under Section 397 of the Cr.P.C. and has questioned the aforesaid judgment and order passed by the learned Additional Sessions Judge in revision.

I am in respectful agreement with the aforesaid view taken by the Kerala High Court in its ruling in the case of Roman Pillai (supra).

6. It would thus mean that the spouse approaching the Court under Section 125 of the Cr. P.C. will have to establish at trial that there was a lawful marriage between the spouses and that there was no impediment existing at the relevant time which would invalidate their marriage. The question now is whether what is required to be established by the spouse making the application under Section 125 of the Cr. P.C. at trial is required to be pleaded by that spouse in the application under Section 125 of the Cr. P.C. on an application for interim maintenance during the pendency of the main application for maintenance. This question has arisen in view of the fact that the wife in the instant case has stated in her application for maintenance under Section 125 of the Cr.P.C. that at the time of her marriage she was informed by the petitioner herein that his previous wife was no longer alive and was survived by a female child but later on it was found that the former wife was alive and a fraud was practised upon respondent No. 1 herein. Relying on this averment made in para 5 of her application for maintenance under Section 125 of the Cr. P.C., Shri Pardiwala for the petitioner has urged that she ought to have pleaded that there was no impediment against her marriage with the petitioner as provided in Section 5 of the Act as the parties, being Hindus, were governed thereby.

8. In the present case, the grievance is that respondent No. 1 in her application for maintenance under Section 125 of the Cr.P.C. has not pleaded to the effect that the earlier marriage of the present petitioner was not a valid marriage. That omission at the most would make pleadings loose. Looseness in her pleading would not come in her way in claiming maintenance. If it does not come in her way in claiming maintenance itself, it cannot come in her way in claiming interim maintenance.

9. Besides, what the Supreme Court has ruled in the case of Smt. Yamunabai (supra) as explained by the Kerala High Court in its ruling in the case of Raman Pillai (supra) is that, in order to take benefit under Section 125 of the Cr. P.C., the wife has to establish the necessary condition, namely, that she is the wife of the person concerned in the light of the law applicable to the parties. This she has to do at the stage of trial or hearing of the maintenance proceedings. Even if she has not properly pleaded her case in her application, she should not be prohibited from establishing at trial or hearing that she is a legally wedded wife of the opposite party. In that view of the matter, the absence of plea that the earlier marriage of the present petitioner was a nullity will not come in her way in claiming interim maintenance during the pendency of her maintenance application.

13. However, for the, purpose of deciding the fact of an interim maintenance application, it is not necessary to decide on whom the burden of proof would tie. As aforesaid, the prima facie case for the purpose of deciding the interim maintenance application would be the pleadings of the parties and the material that the parties might have brought on record. As aforesaid, in absence of any serious challenge to the statute of the spouse making the application for maintenance, a presumption as to the validity of the marriage between the spouses would arise. Such presumption should prima facie arise with all the greater force on the strength of the order of maintenance passed by the competent Court under Section 125 of the Cr. P.C, if brought on record. In the instant case, as aforesaid, the petitioner herein has brought on record the order of maintenance passed by the Chief Metropolitan Magistrate of Ahmedabad on the 31st July, 1977 in Criminal Misc. Application No. 90 of 1976 in favour of his former wife by the name of Shardaben. That should raise a prima facie presumption as to the valid marriage between the two. The learned Additional Sessions Judge was not justified in not raising a prima facie presumption of a valid marriage between the present petitioner and Shardaben on the strength of the order of maintenance passed by the competent Court in her favour.