A second marriage is void if the first is not dissolved; thus, a second wife cannot claim maintenance unless legally recognized under Section 125, Cr.P.C.

ORDER

1. This criminal revision has been filed by the petitioner under section 19(4) Family Court Act, 1984 read with section 397/401 of the Code of Criminal Procedure, 1973 being crestfallen by the order dated 5.8.2022 passed by the learned Principal Judge, Family Court, Neemuch in M.J.C. No. 52/2018, whereby the learned Family Court has rejected the application filed under section 125 of Cr.P.C on the ground that applicant/wife has failed to prove that she being the legal wife of the respondent/husband is liable to receive the maintenance and awarded the maintenance of Rs.5000/- per month to daughter Nisha till the attaining the age of majority or till her marriage.

2. The fact in brief are that the petitioner filed an application under Section 125 of Cr.P.C. for grant of maintenance and pleaded that in the year 2005, marriage of the petitioner was solemnized with respondent according to Hindu rites and rituals. Out of their wedlock, they were blessed with one daughter Nisha. Thereafter the respondent and his family members started harassing her for not fulfilling their demand of dowry also tortured by giving taunts for giving birth a daughter as they were expecting a son. The respondent has agricultural land, business of opium and business of property sell-purchase from which he earns Rs.50,000/- per month. The applicant is only a homemaker and is an unemployed person, therefore, she has filed application under Section 125 of Cr.P.C for maintenance which has been dismissed by the Family Court, therefore, this revision has been filed by the applicant.

3. Learned counsel for the petitioners has submitted that the trial Court has not considered all aspects of the case and not appreciated the evidence available on record. The petitioner No. 1 is an uneducated lady. From the year 2019, she was residing at her mother's house. He also submits that the petitioner No. 1 is liable to get maintenance from respondent, being a wife and as she is compelled by respondent to live separately because of mental and physical cruelty. The respondent has agricultural land, business of opium and business of property sell-purchase from which he earns Rs.50,000/- per month. It is further expostulated that since petitioner No. 1 has not known someone named Mohansingh, she cannot be treated as illegitimate wife of respondent. As such, the second marriage of Manjubai with respondent/Padamsingh Singh cannot be treated as illegitimate marriage. In this way, she cannot be precluded to get maintenance from respondent. Hence, learned counsel has prayed to set aside the impugned order and revision may kindly be allowed and order of family Court be set aside by awarding maintenance to the petitioner/wife.

4. Learned counsel for the respondent has opposed the prayer made by the applicant and submitted that the trial Court has rightly dismissed the application filed under section 125 of Cr.P.C. It is further submitted that since the petitioner is already married to another person, she cannot claim maintenance from person with whom she lived for some time. Hence prayed for rejection of this revision petition.

5. Heard learned counsel for the parties and perused the record.

6. From the record it is evident that learned Additional Session Judge has passed this order on the ground that since the petitioner is not a legally wedded wife of the respondent, she is not entitled for the claim of maintenance. Learned counsel for the applicant has relied upon the leave granted by Hon'ble Supreme Court in the case of Santosh (Smt) v. Naresh Pal reported as 1999(8) 8 SCC 447, however