SARSWATI DEVI Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS application has been filed for quashing the order dated 22 -8 -2002 passed by the Sub -Divisional Judicial Magistrate, Jehanabad in Misc. Case No. 17 of 2000 (Trial No. 186 of 2002), whereby the prayer made by the petitioner for grant of maintenance under Section 125 of the Code of Criminal Procedure has been rejected. Further prayer made by the petitioner is to quash the order dated 13 -1 -2004; passed by the Sessions Judge, Jehanabad in Criminal Revision No. 73 of 2003, whereby the revision preferred against the aforesaid order has been dismissed.

(2.) SHORT facts giving rise to the present application are that the petitioner filed application for maintenance under Section 125 of the Code of Criminal Procedure, inter alia, alleging that he married Opposite Party No. 2 according to Hindu rites in the year 1980 and excepting for the brief period lived as husband and wife till December, 1999. Petitioner has herself averred in her application that her husband Opposite Party No. 2 was married from before but had married her again, concealing the aforesaid fact as he had no child from the first marriage. The learned Magistrate on the plea of the petitioner itself found that her marriage cannot be said to be a valid marriage and, therefore, not entitled for maintenance under Section 125 of the Code of Criminal Procedure. Revisional Court agreeing with the same, by the impugned order, has dismissed the revision application.

(3.) I do not find any substance in the submission of the learned Counsel and the authority relied on is clearly distinguishable. The expression wife used in Section 125 of the Code means only a legally wedded wife. The word wife has not been defined in the Code except indicating in Explanation (b) to include a woman who has been divorced or has obtained a divorce and not remarried. The term wife, therefore, has to be given the meaning in which it is understood in law applicable to the party. Undisputedly, the parties are Hindus and the marriage according to the petitioner herself having taken place in the year 1980 shall be governed by the provisions of Hindu Marriage Act. Section 8 of the Hindu Marriage Act provides for conditions for a Hindu marriage and Section 5(i) thereof provides that neither party should have a spouse living at the time of as one of the conditions for a Hindu marriage. Section 5(i) of the Act which is relevant for the purpose reads as follows :