JUDGMENT

L. MOHAPATRA, J. — Petitioner in this application under Sec. 482 of the Code of Criminal Procedure has challenged the order passed by the Judicial Magistrate First Class, Balasore rejecting her prayer for grant of maintenance under Sec. 125 of the Cr.P.C. as well as the order passed in revision by the learned Sessions Judge, Balasore dismissing the same.

2. Case of the petitioner is that her marriage with the opposite party was performed as per Hindu rites and customs in the year 1991 in her father’s house and after the said marriage the petitioner lived with the opposite party as husband and wife. At the time of marriage, father of the petitioner had given Rs. 6000/- in cash, one cycle, gold ring etc. to the opposite party apart from other gold ornaments. After marriage opposite party and his family members ill-treated the petitioner, assaulted her and at times did not give her food as the petitioner could not fulfil the demand. Apart from other allegations with regard to ill-treatment it is stated that she was driven out from the house in 1992. There was a village punch and the matter was compromised and the petitioner was taken to the house of the opposite party. Even thereafter the opposite party continued to ill-treat the petitioner and on 5.10.1992 the petitioner was finally driven out from the house of the opposite party whereafter the opposite party not only deserted her but also neglected in maintaining her. Accordingly, an application under Sec. 125, Cr.P.C. was filed for maintenance Rs. 500/- per month.

3. Opposite party in his objection stated that he never married the petitioner according to the Hindu rites and customs and at the time of marriage both the parties were minors and the marriage was forcibly solemnized against consent of the opposite party as well as his parents. Since the marriage is void, the opposite party filed a suit bearing O.S. No. 375 of 1992 in the Court of Subordinate Judge, Balasore seeking a declaration to the effect that the said marriage is void. It is further stated in the objection that the allegation of demand of dowry, ill-treatment to the petitioner is not correct. Several witnesses were examined on behalf of both parties and the learned Magis¬trate on examining the evidence on record came to a conclusion that since the parties were minors at the time of marriage and the validity of the said marriage is under challenge in a civil suit, the application under Sec. 125, Cr.P.C. is not maintainable. Learned Magistrate further observed that it is open for the petitioner to file a petition in the above suit for interim maintenance instead of approaching the Criminal Court under Sec. 125, Cr.P.C.

In the revision filed before the learned Sessions Judge, Balasore same view was taken and the revision was dismissed.

3. Mr. J.R. Dash, learned counsel for the petitioner submit¬ted that even though the petitioner and the opposite party were minors at the time of marriage, under Sec. 11 of the Hindu Mar¬riage Act, 1955 the marriage does not come null and void. He has relied upon a decision of this Court reported in AIR 1977 Orissa 36 (Duryodhan Pradhan v. Bengabati Dei) and submits that an appli¬cation under Sec. 125 of Cr.P.C. is an independent proceeding and merely because a suit is pending challenging validity of the marriage, the petition under Sec. 125, Cr.P.C. cannot be reject¬ed on the ground of maintainability. Shri Dhal, learned counsel for the opposite party submitted that since the marriage was void, as admittedly both parties were minors at the time of marriage, question of payment of maintenance does not arise and under Sec. 125, Cr.P.C. maintenance can be granted only when there is a valid marriage and the husband neglects or refuses to maintain his wife.

4. Coming to the question as to whether marriage is void one or not, reference may be made to Secs. 5 and 11 of the Hindu Marriage Act, 1955. Under Sec. 5 of the Act marriage may be solemnized between the two Hindus if cert