YASHODAN RANI Vs. BALDEV RAJ

JUDGEMENT

(1.) THIS revision is directed against the order dated July 16, 1984, recorded by the learned Additional Sessions Judge, Jalandhar, in Criminal Revision No. 62 of 1983 by which he allowed the revision of the opposite party Baldev Raj and reversed the order dated August 5, 1983, recorded by the Judicial Magistrate 1st Class, Jalandhar, allowing the maintenance application under Section 125 of the Code of Criminal Procedure (for short, the Code) of the revisionist and allowing Rs. 150/- P.M. as maintenance to her from the date of the application.

(2.) BRIEFLY stated, the facts are that Smt. Yashodan filed an application under Section 125 of the Code in the Court of the Judicial Magistrate concerned on the allegations that her marriage with the respondent took place about 14 years ago in accordance with Hindu rites and thereafter they cohabited together but no child was born out of the wedlock. She alleged that the respondent started ill-treating her and turned her out in the month of January 1980 from his house and then she filed an application under Section 125 of the Code and a maintenance of Rs. 100/- P.M. passed in her favour. The respondent did not pay the maintenance to her. She got issued warrant of arrest against him. She further pleaded that the respondent appeared in the Court and offered to maintain her. Consequently, she remained with the respondent for about nine months and thereafter he again turned her out from his house. She claimed a sum of Rs. 500/- as maintenance form her husband. Baldev Raj respondent denied all the allegations. He denied his marriage with the petitioner. He rather pleaded that Smt. Yashodan Rani was married with Chautha Ram and two daughters and a son were born out of that wedlock. He claimed to have a living wife named Swaran Devi and a son aged 23 years. After considering the oral and documentary evidence of the parties, the learned Magistrate allowed the application and granted Rs. 150/- P.M. maintenance to the petitioner. Aggrieved by this decision, the respondent filed a revision which was allowed and the learned Additional Sessions Judge while reversing the order of the trial Court made the following observations :-

(3.) THE question involved in this revision is as to, "whether the second wife whose marriage is void in view of the provisions of Sections 5 and 11 of the Hindu Marriage Act, 1955, is entitled to apply for maintenance under Section 125 of the Code of Criminal Procedure." This matter is now not res integra. This question has been answered by a Division Bench decision of the Bombay High Court in Bajirao Raghoba Tambare v. Tolanbai Bhagwan Tonge and another 1979 Mh. L.J. 693 in the following terms :-