For award of strict proof of marriage is not required.

(Prayer: Petition filed under Section 482 Cr.P.C, seeking to set aside the order passed in M.C.No.13 of 1996 dated 03.05.2001 on the file of Judicial Magistrate, Arcot and confirming the order passed in Criminal Revision Petition No.32 of 2001 dated 27.01.2003 on the file of the Principal District Sessions Judge, Vellore.)

On conclusion of the proceedings in M.C.No.13 of 1996, on the file of the learned Judicial Magistrate, Arcot, the respondent/wife and minor son of the petitioner were awarded maintenance of Rs.300/- and Rs.200/- respectively. In a revision preferred in Crl.R.P.No.32 of 2001 before the Principal District and Sessions Judge, Vellore, the order of the trial Court has been confirmed. Aggrieved against that the present original petition, invoking the inherent powers of this Hon'ble Court has been filed.

2. The contention of the first respondent is that the petitioner married the first respondent on 23.01.1994 in a temple in the presence of P.W.2 and P.W.3. They were living as husband and wife. Thereafter, the petitioner demanded a sum of Rs.25,000/- as dowry and started ill-treating. In the meantime on 01.09.1995 the first respondent has given birth to the second respondent. The petitioner refused to visit the first respondent and on enquiry the first respondent found that the petitioner has performed a second marriage on 22.08.1994. It is further submitted that the petitioner is working as a driver in State Transport Corporation and earning a sufficient salary. As the first respondent could not maintain the family, filed a maintenance petition before the learned Magistrate. Exparte order awarding maintenance has been passed. But in the revision filed by the petitioner it was set aside and the proceedings was taken up again. Five years lapsed in the meantime. On a full-fledged trial, the learned Magistrate has awarded the maintenance above mentioned.

3. Learned counsel appearing for the petitioner submits that the petitioner is a Muslim and the first respondent is a Hindu. In such circumstances, without conversion, the marriage alleged to have taken place and such marriage is not a valid marriage. In such circumstances, the first respondent cannot claim herself as a wife and maintenance under Section 125 Cr.P.C cannot be awarded. The paternity of the second respondent is also disputed and further it is stated that the petitioner has married one Mumtaz and to substantiate that photographs and negatives have been furnished before the Court.

4. Learned counsel for the petitioner relied on a judgment reported in 1997 MLJ Crl. 740 (K. Kasthur V. C. Alavutheen Ravuthar) and particularly relied on the following passage:

"9........ The following four ingredients have to be established by the wife, in order to enable the Court to invoke this Section, for passing the award of maintenance;

(1) The wife must be a legally wedded woe

(2) The wife must be unable to maintain herself

(3) The husband must have sufficient means

(4) The wife must have been neglected or refused to be maintained by the husband.

Only if all these ingredients are established, the Court could pass an order of maintenance. If anyone of the ingredients is absent, then it would not be possible for the Court to invoke this Section.

10. In the instant case, in my view, the first ingredient is explicitly absent. Even according to the petitioner, in the petition filed in M.C.No.96 of 1994 on 16.09.1994, she averred, as stated earlier, that she lived with the respondent as his third wife for two years, while the marriage between herself and the said Sethu was subsisting and the order of the Magistrate, awarding maintenance to her against the said Sethu was in force.

11. Further more, admittedly she is a Hindu and the respondent is a Muslim. Though in her evidence, she stated that the respondent married the petitioner by tying the black-bead (____) around her neck. She herself would admit that the respondent knew about her past life and the subsistence of he