PRABHULAL Vs. RAJ KUNWARBAI

JUDGEMENT

(1.) THIS petition filed u/s. 482 Cr.P.C. raises a rather strange question as to whether a person who is admittedly not woman can in law be treated as 'wife' and awarded maintenance allowance as such u/s. 125 Cr.P.C.

(2.) ADMITTEDLY the applicant and the non -applicant herein were married about 17 years back when the applicant was said to be only 13 years and the non -applicant was about 3 years old. It appears that later on it was discovered that the non -applicant is not a woman but a man. The applicant husband thus deserted the non -applicant. The non -applicant claiming to be the former's wife made an application u/s. 125 Cr.P.C. before the Judicial Magistrate First Class, Agar for maintenance allowance. The application was resisted inter -alia on the ground that the non -applicant being a man, not woman there was no valid marriage in the eyes of law and the same could not be and did not consummate. The learned Magistrate, however, overruled the objection and awarded maintenance allowance to the non -applicant at the rate of Rs. 350/ - per month holding that the marriage in question was at best voidable and unless annulled by a Court of Competent Jurisdiction, could not be ignored. This order dated 11.2.1991 of the Magistrate was confirmed at Revision by the I1nd Addl. Session Judge, Shajapur who took the same view of the matter.

(3.) SEC . 125 Cr.P.C. provides for maintenance of wife's amongst others. The word 'wife' has not been defined under the Code or in other Enactment including the Hindu Marriage Act, 1956. So we have to go by the general meaning of the word 'wife'.