K VENKATAMMA Vs. K B RAMANNA

JUDGEMENT

(1.) The second wife of the respondent filed an application under Sec.125 Cr.P.C. before the Judicial First Class Magistrate, Dhone, claiming maintenance at Rs. 250/- per month. The husband contended that an arrangement has been entered into between both the parties and in pursuance of that arrangement, he gave Ac. 1-50 cants of dry land and 40 Tolas of silver in full settlement of her maintenance and executed a deed of maintenance on 22-12-1983. The learned Magistrate, after enquiry, found that the respondent-husband executed Ex. P-3, registered gift deed dated 22-12-1983 gifting Ac. 1-50 cents of land to the petitioner towards her maintenance and also provided a house for her to live in after a Panchayat was held at the instance of the petitioner demanding maintenance. The learned Magistrate also held that the rights of maintence were concluded in Ex. P-3. Basing on the income from the land, the Magistrate held that the petitioner is able to maintain bereself and that the respondent did not neglect to maintain her.

(2.) Against that order, the wife filed a revision petition before theAddl. District and Sessions Judge, Kurnool. The First Additional District and Sessions Judge, Kurnool, also dismissed the appeal holding that petitioner is the second wife and there is no need for any other proof of neglect or refusal on the part of the respondent to maintain the petitioner-wife. On the facts the learned Judge found that the petitioner was getting only Rs. 200/- per year and it is hardly sufficient to maintain oneself even for one month and that she is unable to maintain herself. But, however, basing on the judgment of the Madras High Court in Krishnappa Chettiar vs. Sivagami Achi (1) he came to the conclusion that the parties are residing separately by mutual consent as a result of compromise and provision was also made for maintenance, and therefore summary remedy provided under Section 125 Cr.P.C. is not open to the wife and she can approach the Civil Court to claim enhancement of maintenance. With these observations he dismissed the revision petition. It is against this order, this petition is filed under Section 482 Cr.P.C., to quash the order of the learned Magistrate.

(3.) The husband admitted about the second marriage with thepetitioner and no evidence has been let in before the Magistrate that the marriage is void on account of the fact that his first wife is living. As no plea has been taken in the counter by the husband and no evidence has been let in regarding the date of their marriage, the learned Judge by taking into account the age of the parties and as marriages for girls are generally performed at the early age, thought that their marriage might have been taken place before 1949 i.e., prior to the coming into force of the Madras Hindu (Bigamy Prevention and Divorce) Act VI of 1948. When a person has got two wives and when the second wife files an application for maintenance tinder Section 125 Cr.P.C., she has to prove that there is a valid marriage between the two. After the passing of the Madras Act VI of 1948, so long as the first wife is alive, even if there is a second marriage, the second wife cannot have any right to claim maintenance under the provisions of the Code of Criminal Procedure as the second marriage is not a valid marriage. But in this case, as the lower appellate Court found that the marriage took place prior to the coming into force of the above Act, this Court need not interfere with that finding. The Court has therefore, to proceed on the footing that there is a valid marriage between the petitioner and the respondent and that the parties lived together as husband and wife and children were also born to them and by consent and in pursuance of Ex. P-3, gift deed they were living separately.