Godawari Bai Bisahuram Sahu Vs. Bisahuram Sahu - Court Judgment

Excerpt:
- indian penal code, 1890.sections 307 & 324: [lokeshwar singh panta & b.sudershan reddy,jj] assault proof - appellant allegedly dealt sickle blow to deceased - testimony of eye-witnesses showed that sudden altercation ensued between appellant and deceased - no evidence to indicate any previous enmity between parties - single blow of sickle had been inflicted by appellant on back of deceased - incised wound allegedly inflicted by appellant - however opinion of doctor proved that deceased had not died due to direct result of said injury held, appellant is therefore liable to be convicted under section 324 of i.p.c., sentence of 3 years imprisonment reduced to period undergone by appellant considering mental agony suffered by himorderk.l. issrani, j.1. the present revision petition is against order dated 22-12-1987 passed by shri b. k. shrivastava, third additional sessions judge, bilaspur, in criminal revision no. 218 of 1986 setting aside the order dated 13-11-1986 passed by the additional chief judicial magistrate, bilaspur, in misc. cr. case no. 45 of 1986 on an application under section 125 of the code of criminal procedure.2. admittedly, the applicant smt. godawari bai, after getting the customary divorce from her earlier husband domra, had married the non-applicant bisahuram sahu in churi form in the life time of his first wife smt. baisakha bai, who is still alive. the present marriage in churi form was performed between the parties in order to get the issues which the non-applicant did not have from his first wife smt. baisakha bai. this marriage took place about more than 20 years before. bisahuram sahu had five daughters from applicant smt. godawari bai, out of them only 3 are alive. at present applicant godawari bai is forced to live separately in village selar.3. before the trial magistrate, the applicant had filed an application against the non-applicant under section 125, criminal procedure code for grant of maintenance at the rate of rs. 250/- per month. the trial magistrate after assessing the evidence had granted rs. 125/- per month as maintenance to the applicant. aggrieved by the said order, the non-applicant filed revision before the lower revisional court. the lower revisional court set aside that order on the ground that the applicant is not the legally wedded wife of the non-applicant as per section 5 of the hindu marriage act and she is not entitled to any maintenance under section 125, criminal procedure code.4. the submission of the learned counsel for the applicant is that the order passed by the lower revisional court is wrong and it should be set aside and that of the trial magistrate be restored.5. learned counsel for the non-applicant has repelled the submissions of the learned counsel for the applicant. he supports the order passed by the lower revisional court.6. the lower revisional court has set aside the order of the trial magistrate only on the ground that the applicant is not the legally wedded wife of the non-applicant. therefore, she is not entitled to any maintenance under section 125, criminal procedure code.7. as shown above it is an admitted position that first wife of non-applicant bisahuram sahu was alive at the time when he married the applicant in churi form and she is still alive. though under section 125, criminal procedure code the term 'wife' has not been specifically defined as to include the second wife in churi form, but the word 'wife' in this connection, refers only to the legally wedded wife. wife means only a legitimate wife and, therefore, a marriage proved illegal cannot give any right to wife to get any maintenance.8. the submission of the learned counsel for the applicant is that the marriage of the applicant with the non-applicant in churi form was according to the custom prevalent in the community and as such the marriage is legal. but section 4 of the hindu marriage act, 1955 overrides such customs. section 4 of the act reads as under : -'4. save as otherwise expressly provided in this act,(a) any text, rule or interpretation of hindu law or any custom or usage as part of that law in force immediately before. the commencement of this act shall cease to have effect with respect to any matter for which provision is made in this act;(b)---------------------------'9. section 5(i) of the hindu marriage act specifically bars the marriage between the two in case of a spouse living at the time of marriage. admittedly, smt. baisakha bai first wife of the non-applicant bisahuram sahu is still alive. in such a case the second marriage of the applicant with the non-applicant after coming into force of hindu marriage act is barred in any form.10. learned counsel for the applicant has relied on the decision of this court in d. p. thawait v. the state of m. p. and anr., misc. petition no. 807 of 1980, decided on 2nd august, 1983, on the point that the first marriage of the applicant with her previous husband was dissolved according to the custom of caste. this decision does not help the applicant because the only point now to be considered is the second marriage of the applicant with the non-applicant. since the non-applicant had already a wife living, the second marriage during the life time of the first wife is specifically barred under section 5(i) of the hindu marriage act. therefore, the marriage of the applicant with the non-applicant during the continuance of his marriage with his former wife is void and the second wife is not entitled to claim maintenance from her husband. i am supported on this view by decision of allahabad high court reported in naurang singh v. sapla devi, air 1968 allahabad 412.11. therefore, the lower revisional court was right in allowing the revision petition of the non-applicant and setting aside the order of the trial magistrate. the lower revisional court has not done any irregularity and illegality on the point. the revision has no merit.12. consequently, the revision petition fails and is hereby dismissed.

Judgment:
ORDER

K.L. Issrani, J.

1. The present revision petition is against order dated 22-12-1987 passed by Shri B. K. Shrivastava, Third Additional Sessions Judge, Bilaspur, in Criminal Revision No. 218 of 1986 setting aside the order dated 13-11-1986 passed by the Additional Chief Judicial Magistrate, Bilaspur, in Misc. Cr. Case No. 45 of 1986 on an application under Section 125 of the Code of Criminal Procedure.

2. Admittedly, the applicant Smt. Godawari Bai, after getting the customary divorce from her earlier husband Domra, had married the non-applicant Bisahuram Sahu in Churi form in the life time of his first wife Smt. Baisakha Bai, who is still alive. The present marriage in Churi form was performed between the parties in order to get the issues which the non-applicant did not have from his first wife Smt. Baisakha Bai. This marriage took place about more than 20 years before. Bisahuram Sahu had five daughters from applicant Smt. Godawari Bai, out of them only 3 are alive. At present applicant Godawari Bai is forced to live separately in village Selar.

3. Before the trial Magistrate, the applicant had filed an application against the non-applicant under Section 125, Criminal Procedure Code for grant of maintenance at the rate of Rs. 250/- per month. The trial Magistrate after assessing the evidence had granted Rs. 125/- per month as maintenance to the applicant. Aggrieved by the said order, the non-applicant filed revision before the lower revisional Court. The lower revisional Court set aside that order on the ground that the applicant is not the legally wedded wife of the non-applicant as per Section 5 of the Hindu Marriage Act and she is not entitled to any maintenance under Section 125, Criminal Procedure Code.

4. The submission of the learned counsel for the applicant is that the order passed by the lower revisional Court is wrong and it should be set aside and that of the trial Magistrate be restored.

5. Learned counsel for the non-applicant has repelled the submissions of the learned counsel for the applicant. He supports the order passed by the lower revisional Court.

6. The lower revisional Court has set aside the order of the trial Magistrate only on the ground that the applicant is not the legally wedded wife of the non-applicant. Therefore, she is not entitled to any maintenance under Section 125, Criminal Procedure Code.

7. As shown above it is an admitted position that first wife of non-applicant Bisahuram Sahu was alive at the time when he married the applicant in Churi form and she is still alive. Though under section 125, Criminal Procedure Code the term 'wife' has not been specifically defined as to include the second wife in Churi form, but the word 'wife' in this connection, refers only to the legally wedded wife. Wife means only a legitimate wife and, therefore, a marriage proved illegal cannot give any right to wife to get any maintenance.

8. The submission of the learned counsel for the applicant is that the marriage of the applicant with the non-applicant in Churi form was according to the custom prevalent in the community and as such the marriage is legal. But Section 4 of the Hindu Marriage Act, 1955 overrides such customs. Section 4 of the Act reads as under : -

'4. Save as otherwise expressly provided in this Act,

(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before. the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;

(b)---------------------------'

9. Section 5(i) of the Hindu Marriage Act specifically bars the marriage between the two in case of a spouse living at the time of marriage. Admittedly, Smt. Baisakha Bai first wife of the non-applicant Bisahuram Sahu is still alive. In such a case the second marriage of the applicant with the non-applicant after coming into force of Hindu Marriage Act is barred in any form.

10. Learned counsel for the applicant has relied on the decision of this Court in D. P. Thawait v. The State of M. P. and Anr., Misc. Petition No. 807 of 1980, decided on 2nd August, 1983, on the point that the first marriage of the applicant with her previous husband was dissolved according to the custom of caste. This decision does not help the applicant because the only point now to be considered is the second marriage of the applicant with the non-applicant. Since the non-applicant had already a wife living, the second marriage during the life time of the first wife is specifically barred under Section 5(i) of the Hindu Marriage Act. Therefore, the marriage of the applicant with the non-applicant during the continuance of his marriage with his former wife is void and the second wife is not entitled to claim maintenance from her husband. I am supported on this view by decision of Allahabad High Court reported in Naurang Singh v. Sapla Devi, AIR 1968 Allahabad 412.

11. Therefore, the lower revisional Court was right in allowing the revision petition of the non-applicant and setting aside the order of the trial Magistrate. The lower revisional Court has not done any irregularity and illegality on the point. The revision has no merit.

12. Consequently, the revision petition fails and is hereby dismissed.