The legal point established is that a marriage during the subsistence of a spouse's previous marriage is null and void under the Hindu Marriage Act, and the party to such a marriage is not entitled to maintenance under Sec. 125 of the Code of Criminal Procedure.

1. This application has been filed for quashing the order dated 22.8.2002 passed by the Sub-Divisional Judicial Magistrate, Jehanabad in Misc. Case No. 17 of 2000 (Trial No. 186 of 2002), whereby the prayer made by the petitioner for grant of maintenance u/s. 125 of the Code of Criminal Procedure has been rejected. Further prayer made by the petitioner is to quash the order dated 13.1.2004; passed by the Sessions Judge, Jehanabad in Criminal Revision No. 73 of 2003, whereby the revision preferred against the aforesaid order has been dismissed.

2. Short facts giving rise to the present application are that the petitioner filed application for maintenance u/s. 125 of the Code of Criminal Procedure, inter alia, alleging that he married Opposite party No. 2 according to Hindu rites in the year 1980 and excepting for the brief period lived as husband and wife till December 1999. Petitioner has herself averred in her application that her husband opposite party No. 2 was married from before but had married her again, concealing the aforesaid fact as he had no child from the first marriage. The learned Magistrate on the plea of the petitioner itself found that her marriage cannot be said to be a valid marriage and therefore, not entitled for maintenance u/s. 125 of the Code of Criminal Procedure. Revisional Court agreeing with the same, by the impugned order, has dismissed the revision application.

3. Mr. S.R.C. Pandey, appearing on behalf of the petitioner submits that the heading of sec. 125 of the Code of Criminal Procedure, hereinafter referred to as the Code, provides for order for maintenance of wives and, as such, petitioner cannot be denied maintenance only on the ground that she happens to be the second wife. In support of his submission he has placed reliance on a judgment of the Supreme Court in the case of Narinder Pal Kaur Chawla V/s. Manjeet Singh Chawla, -, and my attention has been drawn to paragraph 9 of the judgment which reads as follows :

As the legal right of the second wife to claim maintenance under the Act and its quantum are hotly contested issues in the main case, we refrain from expressing any opinion on merit of the claims and contentions of the parties. For the purpose of fixing appropriate amount of interim maintenance, we may assume that the financial position of the husband is such that he can easily pay a sum of Rs. 1500.00 per month as interim maintenance without disturbing the right of separate residence provided to the wife on the second floor of the husbands premises.

4. I do not find any substance in the submission of the learned Counsel and the authority relied on is clearly distinguishable. The expression wife used in Sec. 125 of the Code means only a legally wedded wife. The word wife has not been defined in the Code except indicating in explanation (b) to include a women who has been divorced or has obtained a divorce and not remarried. The term wife, therefore, has to be given the meaning in which it is understood in law applicable to the party. Undisputedly, the party are Hindus and the marriage according to the petitioner herself having taken place in the year 1980 shall be governed by the provisions of Hindu Marriage Act. sec. 5 of the Hindu Marriage Act provides for conditions for a Hindu Marriage and sec. 5(i) thereof provides that neither party should have a spouse living at the time of marriage as one of the conditions for a Hindu marriage. sec. 5(i) of the Act which is relevant from the purpose reads as follows :

5. Conditions for a Hindu Marriage.--A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely : (i) neither party has a spouse living at the time of the marriage; xxx xxx xxx

5. sec. 11 of the Hindu Marriage Act, provides that marriage solemnized after the commencement of the Act shall be null and void if it contravenes the conditions specified in Clause (i) of sec. 5 of the Act. Same reads as follows ;

11. Void maniages.-