BHAGELU Vs. STATE OF U P

JUDGEMENT

(1.) This application under Section 482 Cr. P. C, is directed against a maintenance order dated 24-11-1978 awarding Rs. 100/-per month to the opposite party with effect from the date of the application, i e. , 6-2- 1976, under Section 125 Cr. P. C. The learned Magistrate found that the husband, who is the applicant before me and was the opposite party before the learned Magistrate, had earlier been married to Smt. Yashoda Devi, but there was Chutta Chutti according to the caste custom and there after he was married to the opposite party wife, who was the applicant before the learned Magistrate, Both of them lived for sometime as husband and wife. There was dispute between them and they started living separately and the husband had re-married Smt. Munni Devi; and on a consideration of the facts and circumstances of the case the opposite party wife, who was the applicant before the learned Magistrate, was held entitled to maintenance from the applicant husband, who was the opposite party before him. His income as a gardener in the Benaras Hindu University was about Rs. 350/-per month. He also had his income from cultivation at his home. The learned Magistrate fixed Rs. 100/- per month as the maintenance allowance payable from the date of the application i. e. , 6-2-1976. The husband's application for revision was rejected in limine by the Court of Sessions Varanasi, on 2-12- 1978, with the only observation that it did not give rise to any question of law. The husband preferred a second revision in this Court which was dismissed as not maintainable by a learned Single Judge on 25-3- 1979 without going into merits. The present application Under Section 482 Cr. P. C. was thereupon filed on 6-4-1979. The main ground on which the application is founded was an order dated 4-5-1979 of the Court of VII Addl. Sessions Judge Varanasi, on a revision preferred by the wife against an order discharging the husband and certain other persons, who had been prosecuted on a complaint filed by the wife, for having them punished for an offence under Section 494 I. P. C. The learned Additional Sessions Judge had in that order held that the wife was not competent to file the complaint as she was not the legally- wedded wife of Bbagelu. An application under Section 482 Cr. P. C. being Crl. Misc. Case No. 4149 of 1978, at the instance of the wife, was already pending in this Court against that order dated 4-5-1979 of the VII Addl. Sessions Judge, Varanasi. The oresent application was accordingly admitted and connected with the said Crl. Misc. Case No. 4349 of 1978. Smt. Durgawati Devi v. State; and the operation of the maintenance order was also stayed. When the two connected applications under Section 482 Cr. P C. were heard before me in October 1979. I had directed by ray order dated 15-10-1979, passed separately in the two cases, that their hearing shall await the answer to the reference made by me to a larger bench in Second Appeal No. 1127 of 1976; Smt. Sheelwati v. Smt. Ram Nandini; on the question whether a bigamous marriage which contravened the condition prescribed by clause (i) of Section 5 of the Hindu Marriage Act, but had not been declared to be null and void by a decree of nullity on a petition presented by either party to the marriage against the other, under Section 11 of the Hindu Marriage Act, could be adjudged null and void at the instance of another person or in any other proceeding. The Hon'ble the Chief Justice did not consider the case to be a fit one to need the attention of a Division Bench and sent the matter back to me for being disposed of in accordance with law, I heard that apoeal over again and by my judgment dated 12-11-1980, for the reasons contained in my referring order dated 27-9-1979. as also in that judgment, T held that a marriage, though null and void for contravening any of the conditions prescribsd by clauses (i) (iv) (v) of Section 5 of the Hindu Marriage Act, has yet to be regarded as a subsisting fact and in that sense it could not be said to be non est in law or a nullity so long as it is not declared to be null and void by a decree of nullity of the district Court under the Hindu Marriage Act, on a petition presented by either party against the other party to the marriage. The marriage must, so long as it is not so declared to be null and void, by a decree of nullity, be regarded as a subsisting fact, and, the parties thereto, husband and wife for all purposes. In the view that I have taken in the case of Smt. Sheelwati v. Smt. Ram Nandini 1981 (7) A. L. R. 17 (Summary), the question whether the earlier marriage of the husband Bhagelu with Smt. Yashoda Devi was dissolved by Chutta Chutti pales into insigni ficance. The learned Magistrate has found, in the present case, that the parties were married according to the Hindu Shastric rites. There was evidence of the Purohit who officiated at the marriage of the parties. This evidence was believed by the learned Magistrate. I am not in a position to say that the learned Magistrate acted illegally or improperly in accepting that evidence. The wife's allegation that the husband had re-married Smt. Munni Devi was also accepted by the learned Magistrate. It cannot be said that there was no evidence in support of the said findings. It has not been contended before me that the order of the learned Magistrate was illegal or improper on any other ground. The amount of maintenance fixed by him also appears to be eminently just. The result is that this application must fail and is hereby dismissed. .