Paliwal, J. -- 1. Appellant-husband has preferred this appeal under section 28 of the Hindu Marriage Act, 1955 (for brevity “the Act”) being aggrieved by the judgment and decree dated 22nd February, 2001 passed by Fourth Additional District Judge, Vidisha, in Case No.25-A/98 HMA, whereby the petition of the respondent-wife for judicial separation has been allowed.

2. Respondent-wife preferred a petition under section 9 of the Act and in the alternative under section 10 of the Act pleading that first wife of the appellant died in the year 1987 leaving behind four daughters. After the death of first wife, the appellant solemnized marriage in accordance with Hindu customs and rites with the respondent. After marriage appellant kept the respondent well for 1-2 years thereafter started ignoring her.The appellant used to harass her and deprived her of food and medicines. Ultimately the appellant-husband ousted the respondent-wife from his residence. It is further pleaded that as soon as she came to know that appellant has got published an advertisement for his third marriage in a magazine, she filed a civil suit and got stay. The respondent-wife also filed the petition for grant of maintenance. It is further pleaded that just to get rid of the respondent-wife, appellant conspired with his brother-in-law, who is a photographer in CID, Ramesh Saxena and Sanjay Sharma and by showing the respondent as Mamta wife of Sanjay Sharma, pasted her photo in the pass book of Gas Rahat. Thereafter, appellant himself lodged the report at Police Station, Teele Jamalpura, Bhopal, upon which a criminal case under sections 419, 467 and 468 of IPC has been registered against the respondent-wife. She was not at all involved in the case, but she was compelled to face the trial. The respondent-wife is willing and ready to discharge her marital obligations but appellant-husband is not willing to keep her. By amendment it has also been pleaded that in the proceeding under section 125 of CrPC the appellant has alleged that respondent-wife is a characterless lady and residing with Sanjay Sharma and has 3-4 husbands. Due to false allegation against her character, it is impossible for the respondent to live with the appellant-husband. It is prayed that decree of judicial separation be granted and 1/3rd income of the appellant be awarded as permanent alimony.

3. In written statement the appellant has denied that respondent-wife is his legally wedded wife. It is stated that respondent-wife received interim relief from the office of Directorate Gas Relief and Rehabilitation, Bhopal illegally. Appellant never demanded dowry from her. By amendment it is pleaded that marriage of respondent has not been solemnized according to Hindu customs and rites. Therefore, the petition under section 10 of the Act is not maintainable. It is prayed that petition be dismissed.

4. The learned Court below holding that respondent is legally wedded wife of the appellant and appellant has committed cruelty by leveling false allegations, granted the decree of judicial separation. Being aggrieved, the appellant-husband has knocked the doors of this Court.

5. It is submitted that the learned Court below has not properly considered the documents Ex.D-1 to Ex.D-13. From the documents, submitted by the appellant it is proved that respondent is the wife of Sanjay Sharma and she is receiving the interim relief from the office of Directorate Gas Relief and Rehabilitation, Bhopal. It is submitted that Sanjay Sharma, husband of the respondent, is alive and respondent has not obtained divorce, therefore, the marriage in the lifetime of Sanjay Sharma is void in view of section 5 of the Hindu Marriage Act, 1955.

6. Learned counsel for the respondent has supported the impugned judgment and decree and prayed for dismissal of the appeal.

7. We have considered the submissions of the learned counsel for the parties and scrutinized the evidence and material on record.

8. Saroj Saxena (AW1) says that her m