Buddepu Khogayya vs Buddepu Kamalu And Anr.

1. This Criminal Revision case is filed against the order passed on 5th December, 2000 by the learned Judicial Magistrate of 1st Class, Inchapuram in M.C. No. 10 of 1999.

2. The petitioner herein is the respondent and the 1st respondent herein is the petitioner before the Court below. The parties will be referred to as arrayed before the Court below for the sake of convenience.

3. Petitioner is the husband and the respondent is the wife before the Court below.

4. The respondent, during the subsistence of marriage with his 1st wife, married the petitioner and during their wedlock, she gave birth to the two children. The petitioner filed M.C. No. 10 of 1999 claiming maintenance that the respondent married her and in pursuance of the said wedlock, she gave birth to two children. The lower Court after considering the oral and documentary evidence adduced by both parties, awarded Rs. 400 towards maintenance. The respondent being aggrieved by the order dated 5th December, 2000, passed by the learned Magistrate, preferred this Revision challenging the order of the learned Magistrate on the ground that the legally wedded wife is entitled for maintenance but since petitioner is not legally wedded wife of the respondent, she is not entitled for any maintenance.

5. The learned Counsel for the petitioner, in support of his contention, relied upon a decision of the Apex Court reported in Savitaben Somabhai Bhatiya v. State of Gujarat and Ors. II (2005) CCR 10 (SC) : 2005 (5) SCC 22, wherein the Apex Court held that "marriage of a woman in accordance with Hindu rites with man having a living spouse is a complete nullity in the eye of the law. Such woman is, therefore, not entitled to the benefit of Section 125, Cr.P.C. or the Hindu Marriage Act, 1955. Scope of Section 125 cannot be enlarged by introducing any artificial definition to include a woman not lawfully married in the expression 'wife'. Evidence shows that the respondent husband was having a living spouse at the time of alleged marriage with the appellant claimant. Thus, marriage with appellant was void. Appellant not entitled to maintenance. Plea that appellant was not informed about of respondent's earlier marriage when she married him, was of no avail. Principle of estoppel cannot be pressed into service to defeat the provision of Section 125."

6. In the petition filed before the Court below seeking maintenance, the petitioner averred that the respondent married her according to caste, custom and sastric rites at his house and lived with her as man and wife in one of his houses in his native village and the respondent promised to divorce his first wife in course of time before caste elders. But subsequently the respondent did not keep up his promise but made the petitioner the mother of two male children.

7. Therefore, the averment itself clearly indicates that there is a legally wedded wife to the respondent by the date of marriage of the petitioner. Hence, she cannot be treated as wife as per the provisions of Section 125, Cr.P.C. and, therefore, she is not entitled for any maintenance. The lower Court erred in holding that the petitioner is entitled for maintenance.

8. In the light of the legal position, the Criminal Revision case is allowed setting aside the order of the learned Magistrate.

9. It is clear that the maintenance granted to the petitioner stands cancelled. The amount, if any, paid in lieu of the maintenance shall not be recovered.