Judgment:
D.P. Mohapatra, J.
1. The petitioner, husband of the opposite party, tiled this revision petition assailing the order passed by the learned Subdivisional Judicial Magistrate, Keonjhar directing him to pay maintenance at the rate of Rs. 100/- per month from the date of the application filed under Section 125, Cr.P.C.
2. The proceeding was initiated on the application filed by the opposite party under Section 125, Cr.P.C. claiming maintenance from the petitioner alleging inter alia, that she was married to him in 1984, after living with him for about two months she was compelled to leave the marital home on account of ill-treatment of the petitioner's first wife it is her further case that the petitioner had suppressed the fact of his first marriage from her.
3. The petitioner in his written statement while denying the marriage with the opposite party accepted the allegation that he is married to one Santilata Nath and is leading a normal family life with her.
4. Both parties led evidence in support of their respective cases.
5. The learned Magistrate by the order dated 22nd April, 1986, allowed the application for maintenance holding, inter alia, that the opposite party was the legally married wife of the petitioner and since for the purpose of the proceeding under Section 125, Cr.P.C. the law does not require application of strict standard of proof to establish the marriage it was not incumbent on the part of the opposite party to establish her marriage to be a valid and legal one.
6. From the discussions in the impugned order it is manifest that the learned Magistrate has not applied his mind properly to the entitlement of the opposite party for maintenance in view of the specific stand taken by her which was accepted by the petitioner that the marriage of the petitioner with Santilata was subsisting by the date of marriage with the opposite party.
7. The thrust of the contention of the learned counsel for the petitioner is that in view of the accepted position noted above, the application under Section 125, Cr.P.C. is liable to be dismissed on the simple ground that the alleged marriage of the opposite party with the petitioner is a void one as provided under Section 11 of the Hindu Marriage Act. The contention on the face of it looks unassailable. But after giving my anxious consideration to the matter, I am of the view that the case should be reconsidered in its proper perspective and the parties should be given opportunity to establish their respective pleas.
8. It is well settled that in order to be eligible to receive maintenance under Section 125, Cr.P.C. the wife must establish that she is the legally married wife of the opposite party or that after her marriage she has been divorced and has not re-married. Under the provisions in Section 11 of the Hindu Marriage Act, 1955 read with those in Section 5 of the Act any marriage solemnized after commencement of the Act shall be null and void if either party has a spouse living at the time of the marriage. The Calcutta High Court in the case of Kalyani Sen v. Radhakant Sen, reported in (1987) 2 REPORTS (Cal.) 615 taking a different view held that a second marriage is a voidable one, it is valid and can be relied upon for the purpose of grant of maintenance under Section 125, Cr.P.C. till it is annulled by a decree in an appropriate proceeding under the Hindu Marriage Act.
9. The position has now been settled by the ruling of the Apex Court in the case of Smt. Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and Anr., reported in AIR 1988 SC 644 wherein the Court in categorical and unequivocal terms held that the second marriage in such circumstances is null and void and cannot be treated as voidable under Section 12 of the Hindu Marriage Act, notwithstanding the fact that the wife was not informed about the husband's earlier marriage when she married him.
10. A similar view has been taken by this Court in the case of Manulal alias Manulal Behera v. Smt. Kunti Behera, reported in 1985 (II) OLR 261 and in the case of Sri. Ram Prasanna Dash v. Bhabani Devi, reported in 1990 (I) OLR 548.
11. Instances are not infrequent when the wife's application for maintenance under Section 125, Cr.P.C. is contested on the plea that her marriage being the second marriage of the opposite party and took place during subsistence of the earlier marriage it is null and void and she is not eligible to get any maintenance under the provision. In such a case it is incumbent on the part of the Magistrate to consider the question carefully and record a finding whether, the first marriage of the opposite party was a valid marriage and was subsisting by the date of the second marriage. On this finding depends the maintainability of the application under Section 125, Cr.P.C. and the competence of the Magistrate to award compensation to the applicant-wife.
12. Testing the present case in the light of the principle discussed in the preceding paragraph, it is clear that the petitioner took the specific plea in his objection that there was a valid and subsisting marriage between him and Santilata by the date of the alleged marriage with the opposite party. The opposite party also stated in her application that the petitioner's wife by his first marriage was living and that fact was not known to her before her marriage. In such circumstances, in my view, it was incumbent on the part of the learned Magistrate to record a finding whether the marriage between the parties in the proceeding could be said to be void according to the provisions in Section 11 read with Section 5(i) of the Hindu Marriage Act. He was not justified in glossing over this important question in the manner he has done in the order. The learned Magistrate unfortunately failed to grasp the relevance of the question and its consequence that acceptance of the plea raised by the petitioner will deprive the opposite party of the right to get maintenance and will virtually render Section 125, Cr.P.C. nugatory so far as she is concerned. It is worthnoting here that excepting the statements of the parties in support of their stand on this aspect of the case no other evidence, has been led to establish the first marriage and its subsistence by the date of the marriage with the opposite party. However, I would not like to delve into the matter further since I propose to remit the case to the Magistrate for reconsideration and fresh disposal.
13. Accordingly, the revision petition is allowed, the impugned order dated 23-4-1988 passed by the learned Magistrate is set aside and the case remitted to him for fresh consideration and disposal (SIC) accordance with law in the light or the principles discussed in this judgment. The learned Magistrate will particularly consider whether the marriage between the parties in the proceeding was void on the ground discussed above and for that purpose he may give opportunity to the parties to adduce further evidence in the case, if necessary. It is further directed that during pendency of the case before the Magistrate the petitioner will continue to pay maintenance at the rate of Rs. 100/- per month as directed by this Court on 14-5-1986 in Misc. Case No. 386/89 and if any amount is outstanding the same shall be paid within four weeks hence.