1. This revision under section 397 of the Criminal Procedure Code, is directed against the order dated 27.7.2005 passed by Additional Principal Judge, Family Court, Indore in Misc. Judicial Case No. 22/2005, whereby application filed by the applicant under section 125 of the Code of Criminal Procedure has been rejected on the ground that her alleged marriage with the non-applicant was nullity.

2. The applicant submitted an application under section 125 (1) of the Criminal Procedure Code, 1973 before the learned Family Court with a prayer to award Rs. 3,000/- per month as maintenance, from the non-applicant, on the ground that her marriage with the non-applicant was solemnized in Khajrana Ganesh Mandir, Indore on 13.12.1998 as per Hindu rites and customs and thereafter she started living with the non-applicant at his residence. It has also been contended that thereafter she became pregnant but on the advice of the non-applicant aborted the child. She has further contended that on 19.2.1999 non-applicant ousted her from his home and stopped even talking to her. She has no means for her maintenance whereas non-applicant is working as clerk in account section in Municipal Council, Indore and is getting Rs. 9,000/- per month as salary. Therefore, she prayed for granting a maintenance @ Rs. 3,000/- per month.

3. The non-applicant in his reply contended that he was never married with the applicant and applicant is not his legally wedded wife. The non-applicant was already married and his wife Rajshri Sharma was very well alive on 13.12.1998, which is alleged as date of marriage of the applicant in his application. He had contended that his wife Rajshri died on 17.12.1999, therefore, it was prayed that the application filed by the applicant be rejected.

4. Learned Judge of the Family Court after considering the evidence adduced by both the parties came to the conclusion that the applicant is not legally wedded wife of non-applicant and, therefore, is not entitled for any maintenance under the provisions of section 125 of the Code of Criminal Procedure. In para 9 of the impugned order it has been held that non-applicant was having a living spouse and, therefore, on the date of alleged marriage wife of non-applicant was already alive, therefore, no marriage could be solemnized between applicant and non-applicant as per the provisions of Hindu Marriage Act, 1955. The law laid down by the Hon'ble Supreme Court in the case of Smt. Yamuna Bai Anantrao Adhav v. Anantrao Shivram Adhav and another reported in [1988 (I) MPWN 239 = AIR 1988 SC 644] was followed and the application filed by the applicant was rejected.

5. Learned counsel for the applicant Shri A.K. Nalwaya submitted that learned Family Judge was wrong in applying the ratio of case of Yamunabai Anantrao (supra) in the facts of the present case as there was sufficient proof of marriage between the applicant and non-applicant and they were living as husband and wife for quite sometime. Even the applicant became pregnant because of relationship with the non-applicant. Sufficient proof regarding her pregnancy and abortion was also adduced before the learned Family Court but the learned Judge of the Family Court ignored of the evidence adduced by the applicant and came to a wrong conclusion. Learned counsel for the applicant placed reliance upon the reported case of Supreme Court and this High Court in Harinarayan v. State of M.P, [2005 (1) MPLJ 196].

6. The facts of these two cases were quite different from the facts of the present case in the case of Harinarayan v. State of M.P (supra) the earlier marriage of both the spouses was already dissolved as per the customs prevailing in the community by Chhorchhuti and second marriage in Natra form was performed, as per prevailing custom of the community. In the case of Dwarka Prasad v. Vidyut Parva Dixit, [2000 (II) Manisa 6], It has been held that:

"Validity of the marriage for the purpose of summary proceeding unde