KRISHAN GOPAL Vs. USHA RANI

JUDGEMENT

(1.) BY this petition filed under Section 482 of the Cr. P.C., Krishan Gopal, petitioner herein, is challenging the legality of the order passed on 31st July, 1981, by a Metropolitan Magistrate, Delhi, whereby the learned Magistrate has held that the petition filed by the wife, Smt. Usha Rani, under Section 125 of the Cr. P.C. (herein called 'the Code') is maintainable. While dismissing the preliminary objection on behalf of the husband -respondent it has been held that in spite of the fact that the marriage between the parties has been declared a nullity under Section 12 of the Hindu Marriage Act (herein called 'the Act'), Usha Rani continues to have the status of a wife and as such she is entitled to ask for maintenance.

(2.) THE case of the husband is that the marriage between the parties could not be consummated as his wife was incapable of sexual intercourse. According to him she is a born eunuch. While declaring the marriage to be a nullity it has been found by the Court of District Judge, Ferozepur, vide judgement passed on 7th Oct., 1980, that Usha Rani in spite of having undergone a vaginal operation, was impotent.

(3.) MR . Kalia, counsel for the petitioner, contends that in case of annulment of the marriage on the ground of impotency of the wife under Section 12 of the Act, the wife cannot claim to be a divorced wife as envisaged by Explanation (b) to Section 125(1) of the Code and, therefore, her application for maintenance under the provisions of Section 125 of the Code is not maintainable. The said Explanation reads as follows : - "Explanation. - For the purposes of this Chapter. (a) ...................... (b) "Wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried."