G.B. Pattnaik, J.
1. This revision is directed against the order of the Sub-divisional Judicial Magistrate, Bargarh, in Misc. Case No. 28 of 1979 directing the petitioner to pay a maintenance to the opposite party at the rate of Rs. 40/- pet month.
2. The opposite party filed an application under Section 125 of the Code of Criminal Procedure (hereinafter referred to as the 'Code') alleging that she is the legally manned wife of the petitioner and their marriage took place in 1972-73. After having lived happily for seven years, she was ill-treated by her-husband, the petitioner, as a result of which it was difficult for her to cope up with her husband The husband thereafter tortured her and left her in her mother's house with the promise that he would come and take back the wife, but he never returned. The wife tried to go back to her husband's house, but was in vain. Ultimately, as she was unable to maintain herself, she had to file the application under Section 125 of the Code claiming maintenance.
3. The petitioner-husband filed his objection before the Magistrate denying the allegations made in the petition. In paragraph 7 of the objection, it was state 1 that there has been no relationship of husband and wife between the petitioner and the opposite party and the petition is liable to be rejected in limine.
4. Before the learned Magistrate, parties led evidence and on consideration of the evidence on record, the learned Magistrate has come to hold that the opposite party is the married wife of the petitioner and she has been neglected by the petitioner. It has been further held that she is unable to maintain herself and taking into consideration the income of the husband, the learned Magistrate directed the husband to pay a maintenance of Rs. 40/- per month.
5. Mr. Misra, the learned counsel for the petitioner, contends that on the materials on record, it is well-established that the petitioner had married Gouri much earlier to the alleged marriage of opposite party Kunti with him and the said marriage with Gouri subsisted on the date the alleged marriage between Kunti and petitioner took place. In that view of the matter, the marriage of Kunti is void under Section 11 of the Hindu Marriage Act and on the basis of the said void marriage, an application under Section 125 of the Code is not maintainable. Mr. Roy, the learned counsel for the opposite party-wife contends that the petitioner in his objection did not specifically plead about the first marriage with Gouri and further he never proved that the said marriage subsisted on the date when Kunti married the petitioner. In that view of the matter, the Magistrate was fully justified in entertaining the petition under Section 125 of the Code and granting maintenance in favour of the wife opposite party.
6. So far as the pleading is concerned,' it appears that the husband of course did not specifically plead that the so-called second marriage with Kunti was void. But if the averments in paragraphs 6 and 7 of the objection are taken together, such a plea can be said to have been taken. In paragraph 6 of the objection, the petitioner had averred :
'That the liaison that was existing between the petitioner and the O. P. was purely contractual. The contract having terminated the petitioner is living all by herself out of her own accord...'.
In paragraph 7, it was averred :
'That as there has been no relationship of husband and wife between the petitioner and the O. P. the petition is liable to be rejected in limine.'
These two averments taken together indicate that the husband took the stand that there was no relationship of husband and wife between the petitioner and the opposite party. In the evidence, however, the petitioner-husband has led evidence to prove chat be had married Gouri who wa3 continuing as his wife on the date he deposed The relevant evidence of the husband is quoted hereunder :
'...I have got my own married wife Gouri by name who is the daughter of Khyamanidhi Behera of village Tabada. I have married her about 20 to 21 years back. She is still continuing with me as my wife till now'.
There has been no cross-examination on this aspect and the said statement practically remains unchallenged. The wife herself in her evidence stated :
'It is a fact that Gouri was the first wife of O. P. and by the time I was taken to the house of O. P. she was not there. Gouri is daughter of Khyamanidhi Behera of Tabada. After one year of my marriage and living with O. P., Gouri again came to the house of O. P. Myself and Gouri lived happily with O. P. for 2 years. After that two years, Gouri started quarrelling with me and did not pull well...
O. P. tortured me and drove me out at the instance of Gouri. We have not consulted with Gouri before my marriage as I had no knowledge that there is any such wife Gouri living. We both the two wives and O. P. were living in one mess and under one roof house.'
This evidence of the opposite party wife clinches the issue and unequivocally proves the case of the petitioner-husband that he had a married wife Gouri living with him and the marriage subsisted when the alleged second marriage with Kunti took place. Over and above this, I rind from the evidence of opposite party witness No. 1, who was the family priest that Munulal (the present petitioner) had married Gouri, daughter of Khyamanidhi of village Tabada as per 'Hindu Shastra' and said Gouri is still living and is staying as wife of Munulal. This marriage was solemnized by the said witness (O. P. W. 1). Therefore, the marriage of the petitioner with Gouri is well established from the evidence of the petitioner, his witness, O. P. W. 1 and the evidence of Kunti herself who is P. W. 1. In this view of the matter, on the materials on record, I hold that the petitioner had married Gouri long before his alleged marriage with Kunti and the said marriage between the petitioner and Gouri subsisted on the date the alleged marriage with Kunti took place and subsisted even on the date when the parties led evidence.
7. The legal position is absolutely clear that in order to enable a lady to claim maintenance under Section 123 of the Code, it must be proved that she is the legally married wife. Under Section 11 of the Hindu Marriage Act, 1955, any marriage solemnised after the commencement of this Act shall be null and void if it contravenes the conditions specified in Section 5(1) of the Act. Under Section 5(1) of the Act, a marriage may be solemnized between any two Hindus if neither party has a spouse at the time of the marriage. Therefore, it is essential that before a valid marriage can be solemnized after the commencement of the Hindu Marriage Act. it must be shown that the parties to the marriage must be either single or divorced or a widow or a widower. This being the legal position, the so-called marriage with Kunti (opposite party herein) as claimed in the petition under Section 125 of the Code, alleged to have been solemnised in the year 1972 is void ab initio since Gouri, the legally married wife was living and the marriage subsisted. A marriage which is void ab initio does not alter or affect the status of the parties nor does it create between them any rights and obligations which must normally arise from a valid marriage, except such rights as are expressly recognised by the Act. The law on the subject has been well-discussed in a Bench decision of the Patna High Court in the case of Banshidhar Jha v. Chhabi Chatterjee, A. I. R. 1967 Patna 277. The Allahabad High Court in the case of Naurang Singh Chuni Singh v. Smt. Sapla Devi, A. I. R. 1968 All. 412, interpreting the pari materia provision of the old Code of Criminal Procedure, namely, Section 488, also came to the same conclusion and held that the second marriage during the subsistence of the first marriage was null and void and, therefore, the second wife was not entitled to claim maintenance from her husband. The Bombay High Court in the case of Bajirao Raghoba Tambare v. Miss Tolanbai and another, 1980 Crl. L. J. 473, also held that the second wife whose marriage is void in view of Sections 5 and 11 of the Hindu Marriage Act, 1955, was not entitled to claim maintenance under Section 125 of the Code. In this view of the matter, the application filed by the opposite party Kunti, under Section 125 of the Code is not; maintainable and she would not be entitled to claim maintenance from the petitioner.
8. In the result, therefore, the impugned order of the learned Magistrate dated 18-3-1981 is set aside and this criminal revision is allowed.