Dharam Singh vs Chandro Devi

A S. Nehra, J.

This revision petition is directed against the order dated 16.9.1992 passed by the Sub Divisional Judicial Magistrate, Charkhi Dadri, by which Smt. Chandro has been allowed interim maintenance @ of Rs. 150/ per month from the date of institution of interim application i.e. 1451992.

Briefly stated the facts of the case are that Smt. Chandro Devi filed an application under Section 125 of the Code of Criminal Procedure (hereinafter referred to as the Code) against Dharam Singh petitioner, for maintenance allowance for herself and for her daughter Sushila Devi. In her petition Smt. Chandro Devi has alleged that she was married on 10th May, 1968 with Vir Singh brother of Dharam Singh, according to Hindu Rites at Tosham Town and on the same day marriage of Dharam Singh was also solemnised with Mam Kaur. She has further alleged that one son and one daughter has born to her out of the loins of Vir Singh and they are studying in school. She further alleged that no child was born to Mam Kaur wife of Dharam Singh that her husband Vir Singh died on 1961981 that thereafter, Dharam Singh performed Karewa marriage with her on 1251982 according to Hindu Rites and on the same day Dharam Singh and she became husband and wife that after Karewa marriage she and Dharam Singh had been living as husband and wife and had been performing matrimonial obligations and that after the marriage a daughter was born to her from the loins of Dharam Singh who is studying in class third and whose name is Sushila Devi. It is alleged that Dharam Singh is getting Rs. 900/ per month as pension and Rs. 1500/ per month as pay as he is working as peon in the Haryana Government. It is further alleged that Dharam Singh was appointed in June, 1987 by the Government of Haryana that he retired from the Military service in September, 1984 and that he has bought one kanal plot on 1521985 in Jhoju Kalan. It is alleged that Dharam Singh is illtempered that he treats her with cruelty that he has turned her out of his house by giving beatings that she is living at Jhoju Kalan for the last 1/2 year and that Charan Singh has refused to maintain her. Smt. Chandro Devi has claimed maintenance at the rate of Rs. 150/ per month. In the prayer clause it was stated by Smt. Chandro Devi that she and her daughter he allowed maintenance allowance from the respondent.

Dharam Singh filed written statement stating that Mam Kaur, his wife had not been blessed with any issue till the year 1981. He has admitted the death of Vir Singh husband of Smt. Chandro Devi. He has denied the karewa marriage with Smt. Chandro. He further stated that he has no concern what soever with Smt. Chandro Devi that his legally wedded wife is still alive who is discharging the matrimonial obligations and that Smt. Mam Kaur had given birth to three sons from his loins. He further stated that Smt. Chandro Devi and her husband owned separate house and lived there with her children that she has got. a separate ration card that she has been shown as wife of Vir Singh in the votar list and that she is drawing pension being widow of Vir Singh. Dharam Singh further stated in the written statement that he is an exserviceman and that in the discharge certificate also the name of his wife is shown as Mam Kaur and the photographs of Mam Kaur and that of Dharam Singh appear on it. It is further stated therein that his marriage if any with Smt. Chandro Devi is void because Mam Kaur, his legally wedded wife, is alive. In para 4 of the written statement it has been alleged that no marriage in any form was ever solemnised between the petitioner and Smt. Chandro Devi nor did there exist any relationship of husband and wife between the parties. He has also stated that it is incorrect that a girl was born from the wedlock of petitioner and Smt. Chandro Devi.

Smt. Chandro Devi has filed a certificate from Head Master, Govt Middle School Jhoju Kalan, to the effect that the date of birth of Sushila Devi is 1871983. She has also filed certificate from Addl District Registrar (Births and Deaths) Bhiwani wherein it is mentioned that Vir Singh son of Asa Ram died on 1961981.

Mr Anand Swaroop, Senior Advocate, counsel for the petitioner has contended that the marriage of Smt. Chandro Devi with Dharam Singh is nullity in the eye of law and, therefore, she is not entitled to get interim maintenance under Section 125 of the Code of Criminal Procedure. In support of his arguments, he has relied upon Smt. Yamunabai Anantro Adhav v. Anantrao Shivram Adhav and another, AIR 1988 SC 644 and Bakulbai and another v. Gangaram and another, 1988(1) CRIMES (SC) 587. It has been held by the Supreme Court in Yamunabai''s case (supra) as under :

"The expression ''wife'' used in Section 125 of the Code should be interpreted to mean only a legally wedded wife. The word ''wife'' is not defined in the Code except indicating in the Explanation to Section 125 its inclusive character so as to cover a divorce. A woman cannot be a divorce unless there was a marriage in the eye of law proceedings that status. The expression must, therefore, be given the meaning in which it is understood in law applicable to the parties. The marriage of a woman in accordance with the Hindu rites with a man having a living spouse is a complete nullity in the eye of law and she is, therefore, not entitled to the benefit of Section 125 of the Code."

The admitted case of the parties is that Smt. Mam Kaur, the first wife of Dharam Singh, is alive. Therefore, the marriage of Smt. Chandro Devi with Dharam Singh is a nullity.

Mr. R. A. Sheoran, Advocate, for the respondent has contended that Sushila daughter of Dharam Singh petitioner was born on 1871993 from the wedlock of Smt. Chandro Devi and Dharam Singh petitioner, after the death of Vir Singh husband of Smt. Chandro Devi on 1961981, therefore, Sushila Devi daughter of Dharam Singh, petitioner, is entitled to maintenance from her father Dharam Singh. In support of his argument, he has relied upon Section 16(1) of the Hindu Marriage Act, 1955 which reads as under :

"16(1) Legitimacy of children of void and voidable marriages. Notwithstanding that a marriage is null and void under Section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act and, whether or not the marriage is held to be void otherwise than on a petition under this Act."

It has been held by the Hon''ble Supreme Court in Smt. Yamunabai''s case (Supra) as under :

"It is also to be seen that while the legislature has considered it advisable to uphold the legitimacy of the paternity of a child born out of a void marriage it has not extended a similar protection in respect of the mother of the child."

After hearing learned counsel for the parties, I hold that the karewa marriage of Smt. Chandro Devi with Dharam Singh petitioner, is a nullity in the eye of law and thus she is not entitled to interim maintenance under Section 125 of the Code. Since Smt. Chandro Devi claimed maintenance for her daughter namely Sushila Devi who was born to her from the loins of Dharam Singh petitioner on 18.7.1983, therefore, Sushila is entitled to maintenance from her father Dharam Singh at the rate of Rs. 150/ per month from the date of application i.e. 1451992.

In view of the above discussion, this petition is partly allowed as indicated above. Kumari Sushila Devi daughter of Dharam Singh petitioner, shall be entitled to maintenance at the rate of Rs. 150/ per month from 1451992 and maintenance shall be paid to her by Dharam Singh through her mother Smt. Chandro Devi.