A second marriage is void if the first marriage is still valid, and only a legally wedded wife is entitled to maintenance under Section 125 of Cr.P.C.

ORDER :

(Prakash Chandra Gupta, J.)

This revision petition has been filed by the petitioner/ wife u/s 19 (4) Family Court Act 1984 (hereinafter referred as Act 1984) against the order dated 23/04/2022 passed by IInd Additional Principal Judge, Family Court, Indore M.P. in Miscellaneous Criminal case No. 1258/2021, whereby the application u/S 125 of Cr.P.C. filed by the petitioner/ wife has been dismissed.

2. Facts giving rise to this case are that petitioner/ wife was already married and one daughter namely Rakhi was born from the wedlock of the petitioner and her first husband. The respondent was also married and his first and second wives had died before. Therefore, around 25 years before the filing of maintenance application the respondent had married the petitioner, thus, the petitioner is legally wedded wife of the respondent. From the second wife of the respondent/ husband, two daughters and a son were born, who were looked after by the petitioner/ wife. The respondent/ husband had started to physically harass the petitioner/ wife after getting intoxicated and used to treat her as servant. On 18/08/2021, the respondent had got the petitioner out of his house after battering her, since then she has been living at Samarth Dream Gomat Giri, Indore and is living a dependant life. The petitioner is a 58 years old woman. She has no means to maintain herself. Respondent earns a sum of Rs.1,00,000/- per month from his businesses, hence, he is capable to maintain the petitioner. The petitioner sought a monthly maintenance of Rs. 25,000/- per month from the respondent in her maintenance application.

3. The respondent/ husband was ex parte before the trial court therefore, no reply was filed by him. The petitioner examined herself before the trial court. After completion of ex-parte evidence of the petitioner, the learned trial court passed the impugned order wherein it was found that the petitioner is not legally wedded wife of the respondent, therefore, she is not entitled for maintenance.

4. Learned counsel for the petitioner submits that, the petitioner had proved her marriage with the respondent. She lived with the respondent for a long time as a wife. The petitioner had also got his name written as father in records of Rakhi. The learned trial court has failed to appreciate the evidence adduced by the petitioner in the case. Therefore, it is prayed that the impugned order is liable to be set aside. He relied on Dwarika Prasad Sathpati Vs. Vidyut Prava Dikshit And Anr. [AIR 1999 SC 3348].

5. I have heard learned counsel for the petitioner and perused the records.

6. In the instant case moot question for determination is that whether the petitioner is legally wedded wife of the respondent and whether she is entitled for maintenance?

7. Before moving ahead, it is apposite to reproduce here Section 125(1) of Cr.P.C., the verbatim of which reads as under:-

125. Order for maintenance of wives, children and parents.— (1) If any person having sufficient means neglects or refuses to maintain—

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself,

a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate as such Magistrate thinks fit and to pay the same to such person as the Magistrate may from time to time direct:

Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child,