The term wife in section 125(1) of the Code of Criminal Procedure, 1973 means only a legally wedded wife.

Headnote:
MAINTENANCE - HINDU MARRIAGE ACT, 1955 - SECTION 5(I), 11, 25 - CRIMINAL PROCEDURE CODE, 1973 - SECTION 125 - WIFE - INTERPRETATION - A Hindu woman whose marriage was null and void under section 11 of the Hindu Marriage Act, 1955, by reason of contravention of section 5(i) of the said Act, viz. the person with whom she had undergone a marriage had a wife living at the time of the said marriage was not entitled to claim maintenance under section 125 of Code of Criminal Procedure from such a person on the basis that she was his wife.
Fact of the Case:

The petitioner, a Hindu woman, married the respondent No. 1 in 1974 after undergoing necessary rites under the Hindu law. The said marriage was also registered as required under the Hindu Marriage Act, 1955. However, at the time when the said marriage was performed, respondents first wife Lilabai was alive and the said marriage between them was subsisting. The petitioner stayed with the respondent No. 1 for a week and thereafter stayed at 1st respondents house at his village with his first wife Lilabai and her mother. She alleged ill treatment and left the respondents house. She then made an application to the Magistrate under section 125 of the Code of Criminal Procedure (hereinafter for the sake of brevity referred to as the Code) for maintenance being Application No. 157 of 1976. The Magistrate dismissed the said application on the ground that she was not wife of the respondent as her marriage with the respondent was null and void under section 11 read with section 5(1) of the Hindu Marriage Act. A revision application to the Sessions Court against the said order of the Metropolitan Magistrate was also dismissed by the learned Additional Sessions Judge relying on the aforementioned decision of this Court in Bajiraos case.
Finding of the Court:

The Court held that the term wife appearing in section 125(1) of the Code means only a legally wedded wife. In the instant case, the petitioner's marriage with the respondent No. 1 was null and void under section 11 of the Hindu Marriage Act, 1955, by reason of contravention of section 5(i) of the said Act. Therefore, the petitioner could not be considered to be the wife of the respondent No. 1 to entitle her to an order of maintenance under said section 125.
Issues: Whether a Hindu woman, whose marriage was null and void under section 11 of the Hindu Marriage Act, 1955, by reason of contravention of section 5(i) of the said Act, viz. the person with whom she had undergone a marriage had a wife living at the time of the said marriage was entitled to claim maintenance under section 125 of Code of Criminal Procedure from such a person on the basis that she was his wife.
Ratio Decidendi: 1. The term wife in section 125(1) of the Code means only a legally wedded wife. 2. A Hindu woman whose marriage was null and void under section 11 of the Hindu Marriage Act, 1955, by reason of contravention of section 5(i) of the said Act, viz. the person with whom she had undergone a marriage had a wife living at the time of the said marriage was not entitled to claim maintenance under section 125 of Code of Criminal Procedure from such a person on the basis that she was his wife.
Final Decision: Appeal dismissed. The orders of the lower courts are confirmed.

JUDGMENT - D.M. REGE, J.:---This criminal revision application has come up before this Full Bench on a reference by the Division Bench (Dharmadhikari and Puranik, JJ.) since on the question involved in this application, it disagreed with the view taken by this Court in its decision by earlier Division Bench (Shah and Kanade, JJ.) in the case of (Balirao v. Tolanbai)l, 1979 Bom.C.R. 545 : 1979 Mh.LJ. 693 and thought the same required reconsideration.

2. The question involved, shortly, was :---

Whether a Hindu woman, whose marriage was null and void under section 11 of the Hindu Marriage Act, 1955, by reason of contravention of section 5(i) of the said Act, viz. the person with whom she had undergone a marriage had a wife living at the time of the said marriage was entitled to claim maintenance under section 125 of Code of Criminal Procedure from such a person on the basis that she was his wife.

3. Few basic facts, not in dispute, are :---

The marriage of the petitioner-Yamunabai with the respondent No. 1 was performed on 16-6-1974 after undergoing necessary rites under the Hindu law, which was the personal law of the parties. The said marriage was also registered as required under the Hindu Marriage Act, 1955. However at the time when the said marriage was performed, respondents first wife Lilabai was alive and the said marriage between them was subsisting. The petitioner stayed with the respondent No. 1 for a week and thereafter stayed at 1st respondents house at his village with his first wife Lilabai and her mother. She alleged ill treatment and left the respondents house. She then made an application to the Magistrate under section 125 of the Code of Criminal Procedure (hereinafter for the sake of brevity referred to as the Code) for maintenance being Application No. 157 of 1976. The Magistrate dismissed the said application on the ground that she was not wife of the respondent as her marriage with the respondent was null and void under section 11 read with section 5(1) of the Hindu Marriage Act. A revision application to the Sessions Court against the said order of the Metropolitan Magistrate was also dismissed by the learned Additional Sessions Judge relying on the aforementioned decision of this Court in Bajiraos case. Against the said order of the Additional" Sessions Judge the present revision application has been filed.

4. Initially this application came before Padhye, J., who in view of the said decision in Bajiraos case referred it to the Division Bench. The Division Bench (Dharmadhikari and Puranik, JJ.), by its referring order has referred the matter to this Full Bench as it disagreed with the view taken by this Court earlier in Bajiraos case.

5. As mentioned above, a Division Bench of this Court in the case of Bajirao v. Tolanbai, 1979 Bom.C.R. 545 : 1979 Mh.L.J. 693 on almost similar facts had taken the view that in such circumstances a Hindu woman was not a legally wedded wife as her marriage with the respondent was null and void and, therefore, cannot claim maintenance under section 125 of the Criminal Procedure Code, on the basis that she was a wife.

6. The reference order shows that the said Division Bench disgorged with the above view earlier taken by the Court in Bajiraos case because of the object of the section 125 of the Code, as mentioned by the Supreme Court in its decision in the case of (Bhagwan Dutt v. Kamala Devi)2, A.I.R. 1975 S.C. 83 and in the case of (Bai Tahira v. Ali Husain F. Chothia and another) 3, A.I.R. 1979 S.C. 363 and certain observation of the Supreme Court in the case of (Zohra Khatoon v. Md. Ibrahim), A.I.R. 1981 S.C. 1243 to the effect that :---

"While enacting section 125 of Code there was distinct departure from the old Code and the present Code had widened the definition of the term wife and to some extent over ruled the present law of the parties so far as proceedings for maintenance under section 125 of the Code were concerned."

The said Division Bench, therefore, appears to

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