Ramcharan Singh Vs. Smt. Sushila Devi - Court Judgment

Excerpt:
criminal procedure code - sections 125 & 127--maintenance allowance--both husband & wife admit that husband was already married before their marriage--held, no strict proof of marriage is required; (ii) their marriage is nullity and (iii) she is not entitled to maintenance under section 125;when there is clear admission of the earlier subsisting marriage, the proof thereof is not required. in the case in hand, both petitioner as well as respondent in their statements have admitted subsisting earlier marriages of the parties, therefore, a strict proof of earlier marriages is not required;obviously, the marriage of the petitioner and the respondent is complete nullity in the eye of law;the respondent is, therefore, not entitled to any maintenance under section 15 crpc;revision allowed - - sushila devi has examined herself as aw 1. she has clearly stated that before her marriage with the petitioner, he was already married to a woman called bhagwanti. aw 1 has, therefore, married the petitioner knowing fully well that the petitioner is already married. the petitioner in his statement as naw 1, has also admitted that before his marriage with the respondent, he as well as she were already married and earlier spouses of both were alive and no divorce was obtained. in the case in hand, both petitioner as well as respondent in their statements have admitted subsisting earlier marriages of the parties, therefore, a strict proof of earlier marriages is not required.d.c. dalela, j.1. the respondent smt. sushila devi filed an application under section 125 cr.pc before the learned family court, jodhpur, against the petitioner ramcharan singh alleging that she was married on 26.1.85 as per the hindu rites to the petitioner, who has neglected to maintain her and she was unable to maintain herself. the learned family court after considering the evidence produced by both the sides and arguments advanced, vide his order dated 16.11.94 allowed the application and the husband petitioner was directed to pay the maintenance of rs. 350/- per month with effect from 17.2.93. aggrieved by that, the husband petitioner has filed this revision petition under section 19 of the family courts act, 1984, hereinafter referred to as 'the act, 1984'.2. i have heard the arguments of both the sides.3. the husband has pleaded before the family court that prior to the marriage of the petitioner and the respondent, both were already married and had their spouses alive and no divorce as per law was obtained. learned counsel for the petitioner has contended that the marriage of the petitioner and the respondent is null and void under the hindu marriage act and, as such, she was not entitled to any maintenance.4. learned counsel for the respondent has argued that where the alternative remedy under section 127 crpc is available to the petitioner, the high court should decline to interfere} while exercising jurisdiction under section 19 of the act, 1984.5. section 127 crpc provides of making alteration or cancellation in the order of maintenance passed under section 125 crpc. under section 127 crpc, an order of maintenance passed in favour of a woman under section 125 crpc can be cancelled (a) if in consequence of any decree of a civil court, the order of maintenance should be cancelled; (b) if the woman after her divorce has remarried; (c) if the whole of the amount payable on divorce has been received by her; (d) if she has voluntarily surrendered her right of maintenance.5. on the change in the circumstances of the person receiving the maintenance under section 125 crpc, alteration in the allowance can also be made.6. in the case in hand, the order of maintenance is sought to be set aside not on the grounds mentioned in section 127 crpc but on the ground that the marriage of the parties was null and void in the eye of law. evidently, the provisions of section 127 crpc are not attracted in the case in hand and, consequently, the contention of the learned counsel for the respondent is not acceptable and, therefore, rejected.7. the respondent smt. sushila devi has examined herself as aw 1. she has clearly stated that before her marriage with the petitioner, he was already married to a woman called bhagwanti. aw 1 has further admitted that she was told by the petitioner that he was already married to bhagwanti. aw 1 has, therefore, married the petitioner knowing fully well that the petitioner is already married. she has further stated that before her marriage with the petitioner, she herself was married to one man called ravindra. she has also admitted that both the earlier marriages are subsisting. she has not said that any of them had obtained divorce from their earlier spouses. the petitioner in his statement as naw 1, has also admitted that before his marriage with the respondent, he as well as she were already married and earlier spouses of both were alive and no divorce was obtained. thus, both the sides have admitted that both were earlier married and the earlier marriages are subsisting.8. in the case k.vimla v. k.veeraswamy reported in ii (1991) dmc 52 (sc), the apex court has laid down that strict proof of earlier marriage is required where there is no admission of previous marriage. the apex court has observed that as rightly pointed out by the learned counsel for the appellant, there is no clear admission of an earlier marriage between the respondent and veerama to dispense with the proof of subsisting valid first marriage when second marriage was solemnized.' from this observation of the apex court, it is quite clear that when there is clear admission of the earlier subsisting marriage, the proof thereof is not required. in the case in hand, both petitioner as well as respondent in their statements have admitted subsisting earlier marriages of the parties, therefore, a strict proof of earlier marriages is not required. earlier subsisting marriages of both the sides, therefore, stand established by the admissions.9. in the case of smt yamuna bai anant rao adhav v. anantrao shivram adhav reported in : 1988crilj793 , the apex court has held that 'we, therefore, hold hat the marriage of a woman in accordance with the hindu rites with a man having living spouse is complete nullity in the eye of law and she is not entitled to the benefit of section 125 of the code.'10. in the case in hand, the petitioner and the respondent have married while both having living spouses respectively. obviously, the marriage of the petitioner and the respondent is complete nullity in the eye of law (vide section 5(i) r/w section 11 of the hindu marriage act). the respondent is, therefore, not entitled to any maintenance under section 125 crpc. the learned family court has, thus; fallen into error in extending the benefit under section 125 crpc to the respondent.11. no other point has been argued and pressed before me.12. in the result, the revision petition is allowed and the order dated 16.11.94 of the learned family court is set aside. there shall be no order as to costs.