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2006 Supreme(Bom) 50
IN THE HIGH COURT OF BOMBAY
DNYANESHWAR s/o MAROTI BHUSARI
Versus
PUSHPABAI w/o DNYANESHWAR BHUSARI
Decided on, JANUARY 17, 2006
Headnote:Criminal Procedure Code, 1973 - Section 125 Hindu Marriage Act, 1955, Section 12 The term "wife" Means a legally wedded wife It does not cover a woman whose marriage is void ab initio When there is a decree in favour of the opponent, passed under Section 12 of the Hindu Marriage Act, annulling the marriage between him and applicant No. 1, the applicants have no right to claim maintenance from the opponent. The expression "wife" should be interpreted to mean only a legally wedded wife. It is true that the term "wife" includes a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried. It is equally true that the benefit of the provision does not extend to a woman whose marriage is null and void. Thus, the term "wife" means a legally wedded wife in accordance with the personal or civil law governing the parties and, therefore, it does not cover a woman whose marriage is void ab initio being in contravention of the personal or civil law governing their marriage. A decree of annulment has been passed under Section 12 of the Hindu Marriage Act, when the marriage between the parties i.e. applicant No. 1 and opponent has been annulled, in such circumstances, the applicant No. 1 cannot be termed as a "divorced wife". When the relation between the applicant no. 1 and opponent, as husband and wife, does not subsist, granting of maintenance in favour of applicant No. 1 by the Family Court is definitely not justified. In view of this position, the order of Family Court, Aurangabad, to the extent of granting maintenance in favour of the applicant No. 1, needs to be set aside and the application for maintenance filed by the applicants No. 1 and 2 needs to be rejected.
( 2 ) AS both these Revisions are arising out of the very same order, passed by the Principal Judge, Family Court, Aurangabad, I feel it desirable to dispose of these Revisions by this common order.
( 3 ) THE facts in nutshell, leading to the present Revisions, are tha t: original applicant No. 1 Pushpabai and applicant No. 2 Yogesh Bhusari have filed an application on 21-11-2000 for maintenance under section 125 of the criminal Procedure Code before the Family Court, Aurangabad. In the said application, it was contended that marriage of applicant No. 1 was performed with the opponent in the month of June, 1990 at village Dhangarwadi, Tq. Shrirampur, District Ahmednagar. It was further claimed that applicant No. 1, after the marriage, started cohabiting with the opponent and out of the said wedlock gave birth to applicant No. 2. It is further claimed that the opponent initially maintained the applicants properly and the relationship of applicant No. 1 and opponent, as husband and wife, is still subsisting. It was, however, alleged that the opponent, after a period of two years, started illtreating applicant No. 1 and he used to beat her under the influence of liquor. Even the sister of opponent, namely Sangeeta, tried to administer poison to the applicant No. 1. It was alleged that the opponent thereafter driven out the applicants from his house. The applicants thereafter made an attempt to convince the opponent to allow them to reside with him, however, the opponent refused to the same and thereby neglected and refused to maintain them. It was claimed that the applicants are not able to maintain themselves. They are presently residing at Aurangabad. The applicant No. 1 is doing household work and the applicant No. 2 is taking education. It was further claimed that the opponent is having 100 acres agricultural land and getting income of more than Rs. 15 to 20 lacs per year. It was contended that he is also doing the business of milk selling. It was further alleged that the opponent has performed second marriage somewhere in the year 1995 and, therefore, it is claimed that the applicants have every right to claim separate maintenance. A request was accordingly made to grant maintenance at the rate of Rs. 1500/- per month to each of the applicants.
( 4 ) THE opponent appeared in the matter and filed his say at Exhibit-4, So far as the claim of the applicant No. 1 that marriage between her and opponent was performed in June, 1990, the same has not been disputed by the opponent. However, the other allegation that the said marriage is still subsisting, has been denied by the opponent. He also challenged the maintainability of the said application filed under section 125 of the Criminal Procedure Code, filed before the Family Court. It was contended that after the marriage, applicant No. 1 started residing with the opponent and at that time, the opponent came to know that the applicant No. 1 was pregnant from some other person before her marriage with the opponent and the period of gestation was approximately six months. It was further alleged that the opponent then took the applicant No. 1 to the doctor at Newasa and thereafter to the hospital at Ahmednagar and confirmed that applicant No. 1 was pregnan
