PURSHOTTAM DAS SHUKLA Vs. SARASWATI DEVI

JUDGEMENT

(1.) THROUGH this application under Section 482 CrPC the applicant has prayed that the proceedings in Criminal Case No. 46 of 1980. Smt. Saraswati Devi v. Purshottam Day Shukla, under section 125 CrPC pending in the court of the Judicial Magistrate, Gonda, be quashed. It will appear that the opposite party Smt. Saraswati Devi has made an application under section 125 CrPC against the applicant Purshottam Das Shukla alleging that the said applicant was first married to Smt. Kishore Devi about thirty years back but when no child was born to them he married the opposite party about fifteen years back in accordance with Hindu rites. About a couple of years after this second marriage, the applicant got a son from his first wife whereafter he started neglecting the opposite party and ultimately abandoned her by taking her elsewhere. She tried to persuade the applicant to take her back and maintain her but he did not agree and finally refused to maintain her. She started living with her father who was a petty agriculturist and who could not maintain her for long and consequently she prayed for Rs. 350/- per month to be awarded as maintenance. The applicant was said to be Accounts Clerk in the North Eastern Railway at Gorakhpur and possessed sufficient agriculture land. His monthly income was assessed at Rs. 3000/- per month as he had a house as well which was let out on rent.

(2.) THE claim was resisted by the applicant. He denied the second marriage with the opposite party and said that he had already an issue from his first wife and had never married the opposite parity. It was denied that he had so much income as alleged and said that his monthly salary was Rs. 700/- and he had no house at Gorakhpur which was said to have been let out on rent.

(3.) IT was argued by the learned counsel for the opposite party on the strength of Zohara Khatoon v. Mohd. Ibrahim, AIR 1981 SC 1243 that the marriage need not be a valid marriage under personal law applicable to the parties as it was sufficient for the parties claiming maintenance under section 125 CrPC that the parties should be married. I am unable to agree with the contention because no such principle of law was laid down by the Supreme Court in the case of Zohara Khatoon. The: matter under consideration in that case was whether even after divorce or a decree or dissolution of marriage, the woman was entitled to claim maintenance from her erstwhile husband. IT was held that in view of Explanation (b) appended to sub-section (1) of section 125 CrPC the term "wife" included not only a woman who has been divorced by or has obtained a divorce from her husband but also a woman who has obtained a decree for dissolution of marriage under the Dissolution of Muslim Marriage Act, 1939, the reason being that in the case of such dissolution also the resultant factor was a divorce between the husband and the wife. IT was held that the provisions contained in section 488 of the old Code or section 125 of the new Code provided a summary remedy for seeking mainte- nance even though the application of any other law on the subject was also not totally excluded. The following observations made by the Supreme Court are relevant; "...At the same time, it cannot be said that the personal law of the parties is completely excluded for all purposes. For instance, where the validity of a marriage or mode of divorce or cessation of marriage under the personal law of a party is concerned that would have to be determined according to the said personal law." IT will appear from the above that even for proceedings under section 125 CrPC it was necessary to look to the relevant provisions of the personal law applicable to the parties if the validity of a marriage or the mode of divorce or cessation of marriage was; in question and these matters were to be determined according to the personal law applicable to the parties. If therefore, the question of marriage between the parties was involved then in order to judge its validity the provisions of the Hindu law applicable to the parties had to be looked into and in that event section 5 read with section 11 of the Hindu Marriage Act, 1955 would clearly indicate that such a marriage between the parties where the husband had already his first wife living, would be void. A right to claim maintenance has been conferred on a wife which term clearly means a lawfully married wife. That being so, the opposite party admittedly being the second wife of the applicant and the said second marriage having taken place at a time when the applicant's first wife was still living, the marriage cannot be said to be valid in the eyes of law, and she could not therefore;, claim maintenance under section 125 of the Code of Criminal Procedure. 'The proceedings pending before the learned Magistrate therefore, deserve to be quashed as their continuance would only amount to unnecessary ligigation between the parties and abuse of the process of the Court. The application is accordingly allowed. The proceedings in Criminal Case No. 46 of 1980 Smt. Saraswati Devi v. Purshottam Das Shukla under section 125 of the Code of Criminal Procedure pending in the court of the Judicial Magistrate, Gonda, are hereby quashed. Application allowed.