Judgment 1. This is an application in revision against an order, passed under Sec. 488 of the Code of Criminal Procedure. 2. It appears that the opposite party filed an application for grant of maintenance on the allegations that the petitioner had married her and after some time treated her cruelly and turned her out of his house and refused to maintain her. The application was resisted by the petitioner on the ground that she was not at all his wedded wife and that he had another wife, who was still alive, living with him and that the opposite party had been instigated by one Jaddu Ram to make a false claim and thereby to put him to public humiliation. The learned Magistrate, upon a consideration of the evidence on record allowed the application and directed payment of Rs. 30.00 per month by the petitioner to the opposite party for her maintenance. 3. The only point raised by learned counsel for the petitioner is that it appears from the evidence of the witnesses of the opposite party herself that one of his previous wives is alive and, therefore, in view of Sec. 5 of the Hindu Marriage Act, 1955 , the marriage with the opposite party, even if it be taken to have been proved, was a void marriage in the eye of law and consequently, the opposite party has no right to maintain an application under Sec. 488 of the Code. In support of his argument, learned counsel has placed reliance on the decision in the case of Naurang Singh Chuni Singh V/s. Sapla Devi, AIR 1968 All 412 : (1968 Cri LJ 1636). 4. In that case before the learned Judges a similar plea had been taken by the husband to the effect that he had been married to another person, a cousin sister of the applicant of that case and not to the applicant. The Magistrate had, however, found, upon evidence in that case, that the opposite party in that case had been first married to the cousin sister of the applicant nearly 12 years ago and that the aforesaid marriage subsisted at the time the opposite party was married to the applicant. The Magistrate had, however, found, upon evidence in that case, that the opposite party in that case had been first married to the cousin sister of the applicant nearly 12 years ago and that the aforesaid marriage subsisted at the time the opposite party was married to the applicant. On the basis of these facts, the learned Judges came to the conclusion that the second marriage with the petitioner before their Lordships could not be legal, in view of the fact that the second marriage offended the provisions of Sec. 5(1) of the Hindu Marriage Act, and, consequently, was void. On the strength of this decision, it has been urged that even in the present case the fact having been admitted that one of the previous wives was alive, the marriage with the opposite party must be deemed to be void. I am unable to accept this contention for the reasons given hereinafter. 5. The distinguishing feature between the facts of the Allahabad case and the instant case before me is that there is no finding in the present case that the previous marriage of the petitioner with the person who is said to be alive subsists. Admittedly, the petitioner had not raised the point in the Court of the learned Magistrate that the marriage with the opposite party was void on account of his spouse of a previous subsisting marriage being alive. It appears that no evidence was led on the point. The entire defence of the petitioner in the Court below was that he was not married to the opposite party at all, but was married to a third person. The witnesses for the opposite party, however were trying to make out a case that the petitioner is in the habit of taking one woman as a wife and subsequently discarding her and taking up a fresh one, and in this connection one of the witnesses, namely, P.W. 3, Ramchandra Ram, had said that "Mohan had married a lady, whom also he had discarded." Another witness, P.W. 4, Ramchandra Pahalwan had said that "Mohan had married many times. One of his wives is alive." The learned Magistrate has referred to this evidence in his order and on the basis of these statements, the aforesaid argument has been built up. 6. One of his wives is alive." The learned Magistrate has referred to this evidence in his order and on the basis of these statements, the aforesaid argument has been built up. 6. Reading Sec. 5 of the Hindu Marriage Act, it is quite clear that the spouse living must be one in respect of whom the marriage subsists. If a marriage has come to an end in one way recognised by law or the other, it ceases to subsist and it ceases to be a bar to a fresh marriage. Therefore, if a person intends to challenge the validity of a marriage on the ground of violation of Sec. 5(1) of the Hindu Marriage Act, he has to prove that such a marriage subsisted at the time of the second marriage, which is impugned. It is not the intention of the law to lay down that a previous marriage will act as a bar to a second marriage, whether the former one subsists or has come to an end. In the circumstances of the present case, admittedly, there is neither evidence nor finding on the point. 7. Learned Counsel has, however, contended in this connection that he had raised the defence that he had been married to another person and, therefore, the onus to prove that the first marriage was a nullity or had ceased to subsist lay on the opposite party in this case. I am afraid, I cannot accept this contention as well. In view of Sec. 488 of the Code, an applicant has to prove that she is the wife of the opposite party or that the person is a legitimate or illegitimate child. If that be proved, as in the present case, the finding being that the opposite party is the wife of the petitioner, the onus to prove the defence, undoubtedly, lay on the petitioner. It was his defence that he had another wife. Actually his defence was rejected, inasmuch as the learned Magistrate came to the finding that his case is false and it was not held that the petitioner had a subsisting marriage with any other person. On the other hand, the finding of the learned Magistrate is to the following effect :- "Thus the evidence of the aforesaid witnesses indicate that the O. P. is a type of a man who marries a lady and then discards her. On the other hand, the finding of the learned Magistrate is to the following effect :- "Thus the evidence of the aforesaid witnesses indicate that the O. P. is a type of a man who marries a lady and then discards her. One of his wives who is alive is not living with him since a year or so and had gone to her fathers place. In the situation, the marriage of the O. P. with the 1st party and then subsequent ousting of her by the O. P. seems quite probable." Obviously, the learned Magistrate has come to the conclusion that even the previous marriage did not subsist as is evidenced from the finding aforesaid. 8 On the aforesaid question, learned Counsel has urged that the other party has not adduced any evidence to show that there was divorce in any form between that wife of the petitioner, who is alive and the petitioner himself. It is said that there is no decree of any Court to show that. A reference to Sec.29 of the Hindu Marriage Act shows that so far as the state of affairs is concerned Sub-Section (2) lays down as follows : "(2) Nothing contained in this Act shall be deemed to affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu Marriage, whether solemnized before or after the commencement of this Act." It is well known that although Hindu Law in general did not recognise divorce, yet in certain lower strata of society in India, divorce by discarding a woman was by custom recognised as valid. In view of the saving clause in Sec.29, such a customary right to divorce is still recognised. In the present case, the evidence of the witnesses is that the previous wives had all been discarded and the petitioner had been married with the opposite party in a form called the Sagai form, which did not require any ceremony and permits marriage of men and women who had discarded previous husbands or wives. There cannot, therefore, be any presumption, in the circumstances of the present case, that the previous marriage of the petitioner with another woman still subsisted at the date of the marriage with the opposite party of this case. There cannot, therefore, be any presumption, in the circumstances of the present case, that the previous marriage of the petitioner with another woman still subsisted at the date of the marriage with the opposite party of this case. In that view of the matter, it cannot be said from the materials placed before me at this stage that the marriage as found by the Court below must be held to be void on account of Sec. 5 of the Hindu Marriage Act and consequently that the opposite party had no right to maintain an application for maintenance. 9 There is thus no good ground for the interference with the order in question. This application is accordingly dismissed.