A woman whose marriage is void by reason of the provisions of sections 5 and 11 of the Hindu Marriage Act, 1955 is not entitled to claim maintenance under section 125 of the Code of Criminal Procedure, 1973.

JUDGMENT - P.S. SHAH, J.:---This petition file d by the petitioner husband under Articles 226 and 227 of the Constitution of India and also under section 462 of the Code of Criminal Procedure, 1973, raises a question of some importance. The question that arises for consideration is "whether the second wife whose marriage is void in view of the provisions of sections 5 and 11 of the Hindu Marriage Act, 1955 (Act No. 25 of 1955) is entitled to apply for maintenance under section 125 of the Code of Criminal Procedure, 1973".

2. The facts which are no longer in dispute before us are in a narrow compass. The petitioner is married to one Dwarkabai on July 4, 1961. During the subsistence of this marriage, the petitioner married the respondent No. 1 Tolanbai on September 5, 1966. On September 1, 1975. Tolanbai filed an application under section 125 of the Code alleging inter alia that the petitioner beat her and drove her out of the house and, therefore, she has been staying with her parents who are poor, and she has no means of livelihood. She claimed an amount of Rs. 500/- per month by way of maintenance. Apart from denying the allegations of the respondent, the petitioner contended in the trial Court that his marriage with the respondent even if proved was null and void and did not confer a status of the wife on her because this marriage was admittedly solemnised when his first wife Dwarkabai was living.

3. The trial Court held that the petitioners marriage with Dwarkabai had taken place in the year 1961 while his marriage with the respondent had taken place in the year 1966. It also held that having regard to the fact that the necessary ceremonies for solemnisation of the marriage according to customary Hindu Law having been gone into, she must be deemed to be a legally wedded wife for the purposes of section 125 of the Code. On merits the trial Court accepted the case of the respondent and awarded maintenance at the rate of Rs. 60/- p.m. Aggrieved by this decision, both the petitioner and the respondent filed revision applications in the Sessions Court which came to be dismissed with the result that the order or maintenance passed by the trial Court was maintained. The petitioner has, therefore, preferred this present challenging the order of the courts below.

4. Mr. Sawant, the learned Counsel appearing for the petitioner husband raised only one contention. He submitted that the marriage of the respondent with the petitioner is null and void in view of the provisions of section 5 read with section 11 of the Hindu Marriage Act, and such a marriage, therefore, cannot confer the status of wife on the respondent which would entitle her to make an application for maintenance under section 125 of the Code of Criminal Procedure. He submitted that in order that a woman may be entitled to claim maintenance under the said provisions, she must satisfy the conditions laid down in that section, one of the conditions being that she is the wife of the person against whom maintenance is claimed. According to him, the word "wife" in section 125 must mean, and has all along been construed to mean under section 488 of the old Code of Criminal Procedure, "a legally wedded wife", and as such a woman whose marriage contravenes the provisions of section 5 read with section 11 of the Hindu Marriage Act being void cannot claim the status of a wife. The mere fact that the necessary ceremonies of a marriage under the customary Hindu Law have been gone into cannot confer on her the status of "a legally wedded wife which is a condition precedent for claiming maintenance under section 125 of the Code.

5. On the other hand, Mr. Gavneker, the learned Counsel appearing for the respondent sought to repeal these arguments of Mr. Sawant by contending that the provisions of section 125 should be liberally construed having regard to the social changes as well as the changes in the personal law of the party since independence. He submitted that although under the provis

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