RAMAN PILLAI Vs. SUBHADRA AMMA

JUDGEMENT

(1.) First respondent approached the Trial Court, claiming herself to be the legally wedded wife of the petitioner, for maintenance under S.125 of the Code of Criminal Procedure. The court allowed that petition and directed the petitioner to pay maintenance at the rate of Rs. 100/- per month. That order is under challenge.

(2.) The short question that arises for consideration is whether the first respondent is the legally wedded wife of the petitioner. The claim for maintenance of the first respondent was disputed on the ground that there is no valid marriage between the parties because the petitioner had married another lady by name, Vasanthakumari D/o. Jagadamma, on 30-8-1973 and that, that marriage is subsisting. According to the first respondent the petitioner did not divulge the existence of the marriage between him and Smt. Vasanthakumari and that a valid marriage took place between them. The learned Magistrate came to the conclusion that the petitioner married the first respondent as per the law and custom prevalent in their community and since there is no proof that the petitioner married Smt. Vasanthakumari as per the law and custom, it cannot be said that the marriage between the petitioner and first respondent is not valid.

(3.) According to the learned Counsel appearing for the petitioner the first respondent in the petition filed before court below and in her evidence as PW-1 admitted the marriage between the petitioner and Smt. Vasanthakumari and so she was bound to prove that her marriage with the petitioner was valid in accordance with the provisions of the Hindu Marriage Act, hereinafter referred to as 'the Act'. In the absence of such proof, it is contended that the first respondent is not entitled to maintenance under S.125 of the Code. Only a wife who is unable to maintain herself can claim maintenance form her husband. For a legal marriage not only that all the ceremonies in accordance with the religious rites of the community to which they belong should be undergone, but the marriage must also be in accordance with the personal law applicable to the parties. The parties in this proceeding are Hindus. For a valid marriage I between them the marriage should be in-conformity with the provision contained in S.5(i) of the Act S.5(i) of the Act provides that for a valid marriage neither party to it should have a spouse living at the time of the marriage. Contravention of this provision makes the marriage a void one as per S.11 of the Act. Marriages covered by S.11 of the Act are void ipso jure i.e. void from the very inception. Such marriage has to be ignored as not existing in law. No legal right can flow out of such marriage. S.16(1) of the Act implies that a void marriage falling under S.11 of the Act can be treated as void even without a formal declaration by any court.