A second marriage is valid and the second wife is entitled to maintenance under Section 125 CrPC in the absence of a valid first marriage.

1. This appeal under S. 19 of the Family Court Act, is directed against the order dated 19th March, 1992 passed by the Judge, Family Court, Ajmer, whereby a sum of Rs. 300/- per month has been allowed as maintenance to the respondent Smt. Dhapa w.e.f. 21st December, 1991 i.e. the date of the application under S. 125 Cr.P.C. The appellant filed the present appeal along with the stay-application and while the first stay-application is still pending; second stay-application was rejected on 20th August, 1993 on the ground that the first stay-application was pending and as such the second stay-application was not maintainable. The third stay-application had now been filed with the same prayer. The matter comes up before us for orders on the third stay-application and the matter has been argued. We find that the arguments on the stay- application and the main appeal are almost the same and therefore, having heard the learned counsel for the parties and with the consent of both the side, we deem it proper to decide the main appeal itself.

2. Learned counsel for the appellant submits that the respondent Smt. Dhapa is the second wife of the appellant and she is already married to somebody also i.e. Nathu. He has also submitted that the appellant himself was already married. He has cited certain decisions before us on the question that the second wife is not entitled to maintenance during the life time of first wife. He has placed reliance on the decision Smt. Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav & Anr. Cr.L.R. (S.C.) 1988 (112) in which it has been held that the second marriage during the life time of first wife in case of valid wed-lock with her is nullity and as such second wife is not entitled to maintenance. Learned counsel for the appellant has also cited a decision of this Court in the case of Surjeet Kaur v. Hardan Singh Cr.L.R. (Rajasthan) 1991, 449 in which it has been held that if a husband has a first living wife, the second wife is not a wife within the meaning of Section 105. Learned counsel for the appellant has also cited before us the case of Ishwar Singh v. Smt. Hukum Kaur AIR 1965 (Allahabad) 464 and Bai Banbai Mavji v. Kanbi Karshan Devraj and another AIR 1970 (Giyrat) 137 .

3. We have gone through the order passed by the Family Court, Ajmer, and find that no factual foundation has been laid in the pleadings or in the evidence by the appellant that there was any valid marriage prior to his court marriage with Smt. Dhapa respondent. Similarly, there is no factual foundation in the pleadings or proof to the effect that Smt. Dhapa was married with some-body else. As a matter of fact that order shows that no issue what-so-ever was struck on this aspect of the matter before the Family Court and the parties never joined issues on these aspects. The only issues which were there for consideration before the Family Court were as under:-

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4. The Family Court has come to the conclusion that the respondent Smt. Dhapa was entitled to maintenance from the appellant and a meagre amount of Rs. 300/- per month has been granted to the respondent Smt. Dhapa which only means Rs. 10/- per day is not sufficient to meet the requirement of tea for the day.

5. Mr. Singh, learned counsel for the appellant submits that to establish the valid wed-lock prior to the court marriage with Smt. Dhapa, and on the question that Dhapa had married to Nathu, he may be allowed to lead additional evidence in this appeal or the matter may be remanded back to the Family Court. In the facts and circumstances of the case, in the absence of factual foundation of these aspects of the matter in the pleadings before the Family Court and looking to the facts mentioned in the order when it appears that the appellant has been exploiting this lady i.e. respondent Smt. Dhapa for a peri