Void and voidable marriage.

The revision petition filed by the husband is directed against an order awarding maintenance of Rs.150 per month to the wife, whereas the criminal petition challenges the order confirming the finding of the Courts below that the marriage between the parties is a valid one.

2. The wife filed a petition alleging that the marriage between herself and the revision petitioner took place on 7-2-1987 at Rajahmundry in a temple as per Hindu rites and that due to estrangement of relations, she was forced to be away from the husband and live with her parents. It is in her evidence, as P.W.1, during the course of cross-examination, that she was a Christian by birth, whereas the husband was a Hindu. The trial Court found the marriage between the parties to be valid, but refused to grant maintenance on the ground that the husband has no source of income. When the matter was taken in revision, the court below awarded a maintenance of Rs.150 per month to the wife upholding the finding regarding the validity of the marriage. Hence, the revision petition and the criminal petition by the husband.

3. In view of the admission that the wife was a Christian by birth, whereas the husband was a Hindu and the marriage between them took place as per Hindu rites, the question that arises for consideration is whether the marriage is a valid one for purposes of granting maintenance under Sec.125, Cr.P.C.

4. To decide the issue, it is first necessary to have a reference to the provisions of the Hindu Marriage Act and the other Marriage Laws.

5. Sec.2 of the Hindu Marriage Act reads thus:

“2. Application of Act:

(1) This Act applies-

(a) to any person who is Hindu by religion…..;

(b) xx xx xx xx

(c) to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion ….

Explanation: The following persons are Hindus …..

(a) xx xx xx xx

(b) xx xx xx xx

(c) any person who is a convert or re-convert to the Hindu,… religion.

(2) xx xx xx xx

(3) The expression 'Hindu' in any portion of this Act shall be construed as if it included a person who, though not a Hindu by religion, is nevertheless a person to whom this Act applies by virtue of the provisions contained in this section.”

6. Sec.5 of the Hindu Marriage Act basically contemplates solemnisation of the marriage between two Hindus and prescribes certain conditions thereof for its validity. The said section reads as follows:

“5. Conditions for a Hindu Marriage: A marriage may be solemnised between any two Hindus, if the following conditions are fulfilled, namely:

(i) neither party has a spouse living at the time of the marriage;

(ii) at the time of the marriage, neither party-

(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

(c) has been subject to recurrent attacks of insanity or epilepsy.

(iii) the bride-groom has completed the age of 21 years and the bride the age of 18 years at the time of marriage;

(iv) the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two;

(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;

(vi) Omitted by Act 2 of 1978.”

7. Sec.8 of the Hindu Marriage Act provides for the registration of Hindu marriages for purposes of proof of the same.

8. Sec.11 of the Hindu Marriage Act reads thus:

“11. Void Marriages: Any marriage solemnised after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, against the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in Clauses (i), (iv) and (v) of Sec.5”.

The section as seen, provides for grant of a d