KAILASH PRASAD GUPTA Vs. STATE OF BIHAR

JUDGEMENT

(1.) This application is directed against the order dated 14.7.1998 passed by Shri Indu Bhusan Prasad, Judicial Magistrate of the First Class, Biharsharif at Nalanda in Maintenance Case No. 41 (M) 1995 whereas and where-under the learned Magistrate, on consideration of the materials on record in an application filed by Ranju Gupta and her minor daughter Ekta Kumari under Section 125 of the CODE OF CRIMINAL PROCEDURE, 1973("the Code", in short) had allowed the same directing the present petitioner, claimed to be the husband of Smt. Ranju Gupta, to pay monthly allowance Rs. 400 to the applicant, wife, from the date of the application and a monthly allowance of Rs. 300 to the minor daughter, Ekta Kumari, @ Heena w.e.f. 14.7.1998, the date of the order.

(2.) In the impugned order, the learned lower Court had held that Ranju Gupta was wife of he petitioner Kailash Prasad Gupta and during their wedlock, minor girl Ekta Kumari was born. This position has not been disputed by either party that before his marriage with Smt. Ranju Gupta, the petitioner had earlier married twice out of whom the first wife had died but the second wife was living. However, earned Counsel for the opposite party Nos. 2 and 3 has also submitted that the second wife was mentally unbalanced which was the reason the petitioner had married a third time. Earned Counsel for the petitioner, on the other hand, admitted, as was admitted in the lower Court also, that Ekta Kumari was born to the petitioner through the womb of Ranju Gupta.

(3.) Larned Counsel for the petitioner has submitted that admittedly, previous wife was alive to the petitioner hence the second marriage with Ranju Gupta was void ab initio under the provisions of the Hindu Marriage Act (25 of 1955). It was argued that since the marriage with Smt. Ranju Gupta was so void, she did not gain the status of wife as defined under Section 125 of the Code, hence was not entitled to any maintenance. However, insofar as Ekta Kumari was concerned, the earned Counsel admitted that she was be in to this petitioner from Ranju Gupta, but said that since there was no legal marriage between the petitioner and Ranju Gupta, the child could not be said to be legitimate child. The earned Counsel has based the submissions on a decision of the Supreme Court in the case of Smt. Yamuna Bai Anant Rao Adhav v. Anat Rao Shiv Ram Adhaw and Aer. , In that case, the appellant Smt. Yamuna Bai A. Adhaw was married to the the respondent who had a living wife. The case also was that the appellant at the time of marriage was not aware of existing marriage between the husband and earlier wife Lila Bai. In that case, their Lordships had held that the marriage of a woman in accordance with Hindu rites with a man having a living spouse was a nullity in the eye of law, hence she was not entitled to the benefit of Section 125 of the Code. About the argument that at the time of her marriage the appellant was not aware of the ex/sting marriage of the Opposite party with Lila Bai, their Lordships observed that appellant could not rely on the principle of estoppel so as to defeat the provisions of law, even if the respondent had treated the appellant as his wife. It was observed that it was intention of the Legislature which was relevant and not the attitude of the party. The decision in that case is squarely applicable to the facts of this case.