A woman whose marriage is void under Section 11 of the Hindu Marriage Act, 1955, due to contravention of Section 5(iv) of the Act, cannot be considered a legally wedded wife entitled to maintenance under Section 125 of the Code of Criminal Procedure, 1973.

Headnote:
MAINTENANCE - HINDU MARRIAGE ACT, 1955 - SECTION 3(G)(III), 5(IV), 11 - CODE OF CRIMINAL PROCEDURE, 1973 - SECTION 125 - VOID MARRIAGE - WIFE - INTERPRETATION - A woman whose marriage is void under Section 11 of the Hindu Marriage Act, 1955, due to contravention of Section 5(iv) of the Act, cannot be considered a legally wedded wife entitled to maintenance under Section 125 of the Code of Criminal Procedure, 1973.
Fact of the Case:

The revisionist, Smt. Ramwati Gupta, filed an application under Section 125 of the Code of Criminal Procedure, claiming maintenance from her alleged husband, Anil Kumar Gupta. She alleged that they were married in accordance with Hindu rites in 1974 and that he had neglected to maintain her after turning her out of the house in 1978. Anil Kumar denied the marriage, claiming that it was void as they were within the prohibited degrees of relationship under Section 3(g)(iii) of the Hindu Marriage Act, 1955.
Finding of the Court:

The trial court allowed the maintenance application and granted Rs. 150/- per month to the wife. However, the revision court reversed this order, holding that the marriage was void and that the wife was not entitled to maintenance under Section 125 of the Code of Criminal Procedure.
Issues: 1. Whether a woman whose marriage is void under Section 11 of the Hindu Marriage Act, 1955, due to contravention of Section 5(iv) of the Act, can be considered a legally wedded wife entitled to maintenance under Section 125 of the Code of Criminal Procedure, 1973? 2. Whether a custom or usage can legalize a marriage between two persons who are within the prohibited degrees of relationship under Section 3(g)(iii) of the Hindu Marriage Act, 1955?
Ratio Decidendi: 1. The court held that the term "wife" in Section 125 of the Code of Criminal Procedure, 1973, means only a legally wedded wife. A woman whose marriage is null and void under Section 11 of the Hindu Marriage Act, 1955, due to contravention of Section 5(iv) of the Act, cannot be considered a legally wedded wife and is not entitled to maintenance under Section 125 of the Code of Criminal Procedure. 2. The court also held that a custom or usage cannot legalize a marriage between two persons who are within the prohibited degrees of relationship under Section 3(g)(iii) of the Hindu Marriage Act, 1955. A few instances of such marriages in a community do not constitute a valid custom that a court of law will recognize and enforce.
Final Decision: The revision petition was dismissed, upholding the decision of the revision court that the marriage was void and that the wife was not entitled to maintenance under Section 125 of the Code of Criminal Procedure.

N. N. SHARMA, J.

( 1 ) THIS revision is directed against order dated 5. 10. 1981 recorded by Sri J. V. N. Jaiswal, learned Additional Sessions Judge, Etawah in criminal Rev. No. 119 at 19w by which he allowed the revision of opposite party no. 2 Anil Kumar Gupta and reversed the order dated 22. 8. 1980 recorded by Sri Jitendra Srivastava, Additional Munsif Magistrate 1st Class, Etawah allowing the maintenance application under Section 125 of Code of Criminal Procedure of the revisionist and awarding Rs. 150/- per month as maintenance to her from 228. 1980.

( 2 ) BRIEFLY stated the facts are that the revisionist filed an application under Section 125 of Code of Criminal Procedure in the court of Judicial Magistrate concerned on 12. 8 h78 alleging that she was married with Anil Kumar in accordance with Hindu rites on 25, 1974; her earlier husband Munda Lal step brother of Anil Kumar, was married to her in 1963 but he expired in 1971 leaving a daughter of that wedlock.

( 3 ) AFTER her remarriage they lived as husband and wife for about five years. A son was born to them Subsequently, Anil Kumar developed bad habits and started drinking and she was given a beating -also at the instigation of Smt. Chandra Sheela Gupta, mother of Anil Kumar who was already dis-staffed with the applicant-revisionist on account of insufficient dowry.

( 4 ) SHE was turned out of the house after fleecing her ornaments etc. on 6,8. 1978. The husband was neglecting to maintain her. She had no means to maintain herself and claimed a sum of Rs. 400/ per month as maintenance from her husband who was in affluent circumstances.

( 5 ) ANIL Kumar Gupta denied his marriage with Smt. Ramwati Gupta. He maintained that the was married with Munna lal, his step brother in 1965 and gave birth to a daughter also who is at present aged about nine years. Character of Smt Ramwati got loose after the death of Munna Lal and, therefore, she was turned out of the house by Sri Deo Dutra who had organised this marriage. He further alleged that he was aged abound 22 years while Smt. Ramwati was about 30 years old. Other allegations were also denied.

( 6 ) AFTER considering the oral. and documentary evidence of the parties, learned Magistrate allowed the application and granted Rs. 150/. per month as maintenance to the wife Opposite party no. 2 (revisionist) preferred Revision no. 119 of 1980 culminating in the impugned order.

( 7 ) LEARNED Revising Court found that Smt. Ramwati was within the prohibited degrees of Anil Kumar as defined by Section 3 (g) (Hi) of the Hindu Marriage Act 1955 as amended upto date which reads as below: If one was the wife of the brother or of the fathers or mothers brother or of the grandfathers or grand-mothers brother of the other; or. . . He further relied upon Section 5 of the said Act which lays down the conditions for a Hindu marriage; Sub-section (iv) of Section 5 of the aforesaid Act reads as below: 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 Section 11 of the said Act defines void marriages and is worded as below Any marriage solemnized after the commencement of this Act shall be Dull 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 anyone of the conditions specified in clauses (i), (iv) and (V) of Section 5.

( 8 ) HE found that the marriage was void as Anil Kumar was within the prohibited relationship of the revisionist and so she could not be treated as wife entitled to maintenance under Section 125 of Code of Criminal Procedure (Act No. II of 1974 ). In the result of the revision was allowed. Aggrieved by that decision, this revision has been preferred. I have heard learned Advocate for parties at length.

( 9 ) LEARNED Advocate for revisionist strenuously argued before me that Section 125 (1) Cr. P. C. provides maintenance to wife unab

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1984 Supreme(All) 179

IN THE HIGH COURT OF ALLAHABADN. N. SharmaRAMWATI GUPTA - AppellantVersusSTATE OF UTTAR PRADESH - RespondentsCriminal Revision 1959 Of 1981Decided On : 04/04/1984

A woman whose marriage is void under Section 11 of the Hindu Marriage Act, 1955, due to contravention of Section 5(iv) of the Act, cannot be considered a legally wedded wife entitled to maintenance under Section 125 of the Code of Criminal Procedure, 1973.

Cases Referred (2)

IN THE HIGH COURT OF ALLAHABAD
N. N. Sharma
RAMWATI GUPTA - Appellant
Versus
STATE OF UTTAR PRADESH - Respondents
Criminal Revision 1959 Of 1981
Decided On : 04/04/1984