The main legal point established in the judgment is that a marriage contravening the conditions specified in S.5(i) of the Hindu Marriage Act is null and void, and the party to such a marriage cannot lawfully claim maintenance under S.125 Cr. PC.

1. Revision petitioner is the respondent in MC 18 of 1983 of the Additional Judicial Magistrate of the First Class Court, Trivandrum. Respondents 2 and 3 filed MC 18 of 1983 claiming maintenance from the revision petitioner. Learned Magistrate awarded maintenance to the 3rd respondent at the rate of Rs. 90/-per mensem. Maintenance was refused to the 2nd respondent. Respondents 2 and 3 filed Criminal R P. 65 of 1984 before the Sessions Court, Trivandrum. The learned Sessions Judge held that there was valid marriage between the second respondent and the revision petitioner and that at the time of that marriage no previous marriage was subsisting between revision petitioner and Vijaya Selvi as contended by him.

2. For the sake of convenience the position of the parties as it stood before the trial court is followed in the discussions hereunder. The case of the petitioners is that the first petitioner was married by the respondent on 14-9-1973, that a child (second petitioner) was born to them in the wedlock, that the respondent has failed to maintain them, that they do not have sufficient means to maintain themselves and that therefore they are entitled to maintenance. Respondent filed counter statement refuting the allegation that he had married the first petitioner. He contended that he had married a woman by name Vijaya Selvi in 1972 and in that wedlock he has three children. It is admitted by the respondent that he had intimate relationship with the 1st petitioner and that he had sexual intercourse with her. But he disclaimed any association with her from 1973 onwards. Paternity of the child is admitted by the respondent. He admitted that he used to send Rs. 40/ per month to the 1st petitioner regularly as maintenance for the child.

3. Counsel for the respondent mainly contended that the Sessions Judge went wrong in reversing the order of the Magistrate and remanding the case to the trial court. The Magistrate accepted the case of the respondent that he had married Vijaya Selvi on 12-7-1972 and as the marriage between him and the 1st petitioner had taken place on 14-9-1973 the later marriage is not valid at all. Counsel for the respondent contended that in view of the affirmative evidence regarding the marriage between the respondent and Vijaya Selvi on 12-7-1972 the alleged marriage between the respondent and the first petitioner even if assumed to be true cannot improve the position so far as the first petitioner is concerned as that marriage is not legally valid in view of the subsisting marriage between the respondent and Vijaya Selvi. Counsel for the petitioners submitted that so long as there no acceptable material to hold that at the time when the respondent had married the first petitioner a previous marriage was subsisting as between the respondent and Vijaya Selvi the marriage between the respondent and the first petitioner cannot be held to be invalid.

4. Respondent examined as C. P. W.1 stated that be married Vijaya Selvi on 12-7-1972, and that he has three children in that marriage. He denied that he married P. W.1 but admitted intimate relationship with her. He also admitted that the second petitioner is his own daughter. He stated that he married Vijaya Selvi on 12-7-1972 in accordance with the customary rites from Sangumugham temple. Ext. D-4 is the certificate he had obtained from the temple authorities to prove that marriage. C. P. Ws. 2 and 3 stated that they attended the marriage of C.P.W.1 with Vijaya Selvi. The trial court did not place any reliance on the testimony of C. P. Ws. 2 and 3. Counsel for the respondent submitted that cross-examination of C. P. Ws. 2 and 3 has not brought out any circumstance to disbelieve their testimony and therefore the trial Court ought to have believed it. Counsel submitted that apart from the evidence of C. P. Ws. 2 and 3 the evidence given by C. P. W 4 and Exts. D-4 and D-5 will go to a great extent to prove the marriage between the respondent and Vijaya Selvi.