Ganesan vs G. Pushpam

S. Palanivelu, J.—The Petitioner is the husband of the respondent. Earlier the petitioner married the elder sister of the respondent. It is stated

in the Maintenance Claim Petition that twenty years back, the marriage between them was held and out of the said wedlock, two children were

born to them. Even though son of the parties were impleaded in the Maintenance case, since he has subsequently attained majority, he is out of the

Court.

The respondent contends that the petitioner is having 10 acres of Punja land, 10 acres of Nanja land, four houses and a medical shop in the

name and style of ""Muthumari Medicals"" in Kamuthi Town and he is also doing contract works. By means of the above said avocations, he has

been drawing more than Rs. l lakh per month. She had taken a plea that even though the petitioner had married her own sister, relying his

representation that he divorced his first wife in a Village Panchayat and then she accepted for the marriage. The learned District Munsif-cum-

Judicial Magistrate, Kamuthi has entertained the claim of the respondent and granted the relief of maintenance in her favour. The matter was

carried before the Fast Track Court, Ramanathapuram by this Petitioner in C.R.P. No. 9 of 2006 and the said Revisional Court has dismissed the

revision on 11.09.2006, confirming the order of the learned District Munsif-cum-Judicial Magistrate, Kamuthi. Both the Courts have viewed that

even though the plea of validity of second marriage has been taken up, it is for this petitioner to establish before the Civil Court. The learned

Judicial Magistrate has relied upon a decision of this Court reported in (2003) M.L.J (Crl) 204 : 2003 2 L.W. (Crl.) 540 (Seerangan v. Selvi), in

which after referring to a decision of the Karnataka High Court, this Court has observed thus:

Further, the Magistrate in a petition filed u/s 125, Crl. P.C. for maintenance, is not competent to decide the validity of marriage like a civil

Court. If the Magistrate has any doubt, as observed in the case of Rudramma v. F.R. Puttaveerabhadrappa, 1987 Cri.L.J 677, (Karnataka High

Court), the proper course is to grant maintenance, leaving husband to establish invalidity in competent Court. Further, in a petition filed for

maintenance, if the husband takes a plea that there is a first marriage with another lady and the present claim is not maintainable, the burden is on

the husband and it is for him to satisfactorily prove the subsistence of earlier marriage, which is legal and valid. Section 125, Crl. P.C is meant to

achieve a social purpose and it provides speedy remedy to the deserted wife.

The learned counsel for the petitioner would vehemently argue that since the respondent is a second wife of the petitioner, she is not at all

entitled to get maintenance from him and that his submission is supported by a decision of the Apex Court reported in Savitaben Somabhai Bhatiya

Vs. State of Gujarat and Others, in which it is observed by their Lordships that:

15.The marriage of woman in accordance with 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 or the Hindu Marriage Act, 1955(in short ""the Marriage Act""). Marriage with a

person having a living spouse is null and void and not voidable.

As per the above said decision, the existence of marriage is sine qua non for claiming maintenance by the wife. If a marriage is a nullity or not

recognised by law, the wife cannot claim maintenance. But as far as the factum of divorce is concerned, it is the earlier opinion of this Court that a

Judicial Magistrate is not at all competent to decide the validity of the marriage and it has to be left to the wisdom of the Civil court.

The learned counsel for the respondent would garner the support from the decision of the Apex Court reported in Chand Patel Vs. Bismillah

Begum and Another, , in which it is held that:

If a marriage held to be irregular, marriage will subsist for all purpose unless declared to be void by a Competent Court and wife and children born

out of such marriage are entitled to maintenance u/s 125, Cr. P.C till such a declaration is made.

It has been categorically held by the Supreme Court that unless the marriage is declared to be void by the competent Civil Court, the wife is

entitled to claim maintenance from her husband. Following the dictum laid down by the Honourable Supreme Court of India, in the facts and

circumstance of this case, it has to be held that the petitioner should have approached the Civil Court for necessary remedy.

Because the burden is upon the petitioner to establish that there was divorce between himself and his first wife, in the absence of any such proof

and unless he establishes his plea before the Civil Court, the respondent/wife is entitled to the claim of maintenance from him. There are no legal

infirmities in the orders passed by the Courts below and interference with them is not at all warranted.

With these observations, the Criminal Original Petition is dismissed.