GOPAL SHIORAMJI DHABARDE Vs. LALITA WIFE OF GOPAL

JUDGEMENT

(1.) This criminal revision filed by the original non- applicant (husband) is directed against the order passed by the learned Magistrate on the application filed by his wife under section 125 of the Code of Criminal Procedure granting her a maintenance allowance of Rs. 80 per month.

(2.) The submissions made by Shri Anoop Mohta appearing for the revisionist are two-fold : (l) The non-applicant No. 1, admittedly, is the third wife of this applicant and in the absence of anything to show that his marriage with his first two wives was dissolved by divorce, his marriage with non-applicant No, 1 was a void marriage under section 5 (i) read with section 11 of the Hindu Marriage Act and as such no maintenance allowance could be granted to her under section 125, Criminal Procedure Code, and (2) non-applicant No. 1 in her application never alleged that she was unable to maintain herself nor she proved that fact. The learned Magistrate was, therefore, not justified in entertaining such a petition,

(3.) Shri Mohta placed reliance on the two decisions of this Court reported in Marotrao v. Chandrakanta, 1981 Mah LJ 907 and Kewaldas v. Kunda, 1982 Mah LJ 167, in support of his submission that it is absolutely essential for the wife in a petition under section 125, Criminal Procedure Code to make this allegation and then to prove it and for want of such an averment, the application must be dismissed.