H.C.P. Tripathi, J.
1. The opposite party Smt. Hukam Kaur filed an application under Section 488, Criminal P. C. against the applicant on the allegations that the applicant was her husband, that he was neglecting her and that she was entitled to get a monthly allowance from him for maintenance. The applicant denied to have married the opposite party. Parties led evidence and the learned Magistrate held that the marriage of the applicant with the opposite party has been established, that the applicant was neglecting the opposite party and, therefore, he was liable to pay her a maintenance at the rate of Rs. 15/- per month. On revision the learned Sessions Judge has referred the case with a recommendation that the order passed by the Magistrate be set aside, because, admittedly the opposite party's previous husband Brahma Pal was alive and, therefore, there could be no legal marriage between the opposite party and the applicant entitling the opposite party to receive any maintenance.
2. I have heard the learned counsel for the applicant. None appears on behalf of the opposite party.
3. The order of the Magistrate shows that thecase of the opposite party was that her previoushusband Brahma Pal who was alive had severed allhis connections with the lady and had allowed herto marry any person she liked because of his illhealth. Brahma Pal has not been examined in the caseand, therefore, it is difficult to believe that he wouldhave allowed the opposite party to marry anotherperson during his lifetime. Even if the oppositeparty's allegations are held to be true, it is difficultto hold that that will amount to a divorce within themeaning of Section 13 of the Hindu Marriage Act, 1955because a divorce which could result in the dissolution of a solemnized marriage has to be obtained byone of the two parties on presentation of a petitionfrom a competent Court. So long as such a divorcehas not been obtained, the previous marriage subsistsand, therefore, the second marriage cannot be contracted by a Hindu so long his spouse is living. S. 5of the Hindu Marriage Act provides that a marriagemay be solemnized between any two Hindus, ifneither party has a spouse living at the time of the.marriage. In the instant case, the previous husbandof the opposite party is still alive and, therefore asecond marriage with the applicant even if it is heldto have taken effect was wholly illegal and cannotgive her any right to get a maintenance from theapplicant.
4. The reference made by the learned Sessions Judge is accepted and the order of the Magistrate directing the applicant to pay Rs. 15/- per month as maintenance to the opposite party is set aside.