A woman whose marriage is void due to the subsistence of a previous marriage by either party is not entitled to maintenance under Section 125 Cr.P.C., as the definition of 'wife' in the statute strictly necessitates the status of a 'legally wedded wife'.

Order

Reportable

1. By way of filing the instant miscellaneous petition, a challenge has been led to the impugned order dated 25.10.2018, passed by the learned Judge, Family Court, Baran, in Criminal Case No. 43/2016, by which the application submitted by the petitioner under Section 125 Cr.P.C. against the respondent, seeking maintenance, has been rejected.

2. None has put in appearance on behalf of the petitioner.

3. Learned counsel for the respondent submits that both the petitioner and the respondent were already married with different spouses. In the event of non-registration of their marriage, the petitioner and the respondent resided separately. Hence, the petitioner submitted an application under Section 125 Cr.P.C. for getting maintenance from the respondent.

4. Learned counsel further submits that the petitioner is not legally wedded wife of the respondent, hence, under these circumstances the provisions contained under Section 125 Cr.P.C. are not attracted and on this ground alone, the application submitted by the petitioner was rejected. The Court below has not committed any error in passing the impugned order, which warrants any interference of this Court.

5. Heard and considered the submissions made at the Bar and perused the material available on record.

6. It is pertinent that for submitting an application for maintenance under Section 125 Cr.P.C., one has to fall within the statutory provisions of Section 125 Cr.P.C. The provisions of Section 125 Cr.P.C. read 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, if married, is not possessed of sufficient means:

Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct:

Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.

Explanation.—For the purposes of this Chapter,—

(a) “minor” means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is deemed not to have attained his majority;

(b) “wife” includes a woman who has been divorced by, or has obtained a divo