A woman who undergoes a marriage ceremony with another man while her first husband is alive is not considered a wife under Section 125 Cr.P.C. and cannot claim maintenance.

V.S.Aggarwal, J.

1. Petitioner Suman Kumari had filed an application under Section 125 Cr.P.C. against Harbans Lal @ Pappu. She was seeking maintenance asserting that she was married to the respondent on 13.4.1990. She was being harassed for not bringing sufficient dowry and was being maltreated. On 13.5.1991 she was turned out by the respondent from his house. Attempts were made to rehabilitate the petitioner but without success. Her case was that respondent has refused to maintain her and thus came the prayer for the maintenance to be fixed.

2. In the reply filed the respondent had contested the petition. It was alleged that petitioner has played fraud upon him. She was married earlier to another person who is still alive. Her marriage has not been dissolved. It was admitted that respondent had married the petitioner but he came to know that petitioner has earlier been married and her husband is alive. Respondents case was that petitioner has been harassing him and members of his family. It was denied that petitioner was turned out of the house or was maltreated.

3. The learned trial court had recorded the evidence and concluded that petitioner was already married with one Mohan Lal. The marriage with Mohan Lal has not been dissolved. Her marriage with respondent, therefore, was a nullity and she was not entitled to claim the maintenance. The petition as such was dismissed. Aggrieved by the same the petitioner preferred a revision petition in the Court of Sessions. The learned Additional Sessions Judge agreeing with the reasoning of the learned Judicial Magistrate dismissed the revision petition. By virtue of the present petition Suman Kumari petitioner seeks quashing of the orders.

4. On behalf of the petitioner two main contentions had been raised namely (a) the defence of the respondent had been struck off and, therefore, he had no right to cross-examine the petitioner, and (b) since the petitioner had been married to the respondent irrespective of her husband Mohan Lal being alive, she is entitled to claim the maintenance.

5. On both these counts the argument of the petitioners learned counsel indeed will not cut much ice.

6. Indeed it is not being disputed that during the course of trial the defence of the respondent had been struck off. Once the defence had been struck of, the trial court had proceeded to record the evidence. But when the defence is struck off, it does not debar the opposite party from addressing the court or asking certain questions which are not concerned purely with the defence. When the defence is struck off, it does not imply that petition has to be allowed outright. The said question had been considered by the Supreme Court in the case of M/s Paradise Industrial Corpn. v. M/s. Kiln Plastics Products, AIR 1976 SC 309. The Supreme Court held that despite the defence having been struck off, the concerned party has the right to cross-examine certain witnesses and even to address the argument. The Supreme Court held :-

"Indeed, one may even say that the phrase "the defence to be struck off" or "struck out" is more advantageous from the point of view of the defendants. Even when a defence is struck off the defendant is entitled to appear, cross- examine the plaintiffs witnesses and submit that even on the basis of the evidence on behalf of the plaintiff a decree cannot be passed against him, whereas if it is ordered in accordance with Section 11(4) that he shall not be entitled to appear in or defend the suit except with the leave of the Court he is placed at a greater disadvantage. The use of the words `defence struck off does not in any way affect the substance of the order and the learned Judge of the High Court was wholly in error in holding that because of the form of the order passed on June 2, 1969 the order was illegal and without jurisdiction. The order squarely falls within Section 11(4). What the law contemplates is not adoption or use of a formula; it looks at the substance. The ord