JUDGMENT Murlidhar, J. -This is a husbands second appeal arising out of a wifes suit for judicial separation which has been decreed by both the courts below. The courts have also awarded maintenance of Rs. 300/- per month to the wife for herself and her child from the appellant husband. 2. The findings of fact recorded by the lower appellate court which have not been questioned in this Court are these: The appellant had married one Tara Devi in 1964. In 1969 there was a separation between him and Tara Devi. Tara Devi gave birth to a child by the appellant on 4-2-1969 and this child died on -7-1970. On 17-7-1970, appellant lodged police report against his in-laws about misbehaviour and assault on his visit to their place to fetch Tara Devi. In Aug. 1971, the appellant filed a declaration before his employer, the Food Corporation of India that he was married and had one wife living. On 16-2-1972 a Hindu marriage was solemnised between the appellant and the respondent. In this background the respondent filed a petition for judicial separation. The appellants defence was that the marriage itself was null and void because he had the earlier spouse Tara Devi living on the date of marriage. The lower appellate court held that there was no satisfactory and reliable evidence to prove that Tara Devi was alive on 16-2-1972 the day of solemnisation of appellants marriage with the respondent. 3. The only point canvassed in second appeal is that this finding is erroneous in law because after having found that Tara Devi was alive till August, 1970, the lower appellate court in the absence of any evidence about her death should have held that she was alive on 16-2-72 also and the marriage with the respondent was, therefore, void in accordance with Section 11 of Hindu Marriage Act. Reliance has been placed on Section 107, Evidence Act which runs as follows:- "When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it." Section 108 which is a proviso to Section 107 need not be referred to for it is irrelevant for the purpose of this case. The learned counsel contends that while the overall burden to prove that the marriage was a nullity owing to Tara Devi living on 16-2-1972 the date of marriage, was on the appellant, the burden of leading evidence got shifted to the respondent once Tara Devi was proved to have been alive till August, 1970. I am afraid it is not possible to accept this contention. Proof of the fact that a spouse was alive at the time of marriage in order to invalidate the marriage has to be a strict one, for law leans in favour of legality of marriage. Section 11 declares the marriage to be null and void inter alia if it contravenes the condition prescribed in Section 5 (i) viz. if either party has a spouse living. Therefore, the party seeking declaration has to prove strictly that a spouse was living on the date' of marriage. I do not think such proof can be through the presumption under Section 107 of Evidence Act. For the purpose of Section 11 there has to be proof that the spouse was alive on 16-2-1972 and not merely that she should be taken to be alive under Section 107 as she was alive a few months earlier and there is no evidence of death. The language of Section 107 also leads to the same conclusion. The presumption will apply where the question is whether a person was alive or dead. This is suggestive of a situation where neither the alive character nor death has to be proved strictly and not where the question is merely whether Tara Devi war alive on 16-2-1972. 4. D. A. Greenwood v. G. H. Greenwood ( AIR 1946 Mad 65 ) may be referred to in this connection. In that case the question had arisen in connection with a petition for declaration of nullity of marriage under Section 19 of the Indian Divorce Act. Although the main reason for holding that Section 107 Evidence Act did not apply to the case was the presence of Section 7 Indian Divorce Act which made the principles and rules applied in matrimonial jurisdiction in England for purposes of the proceedings under the Act. Although the main reason for holding that Section 107 Evidence Act did not apply to the case was the presence of Section 7 Indian Divorce Act which made the principles and rules applied in matrimonial jurisdiction in England for purposes of the proceedings under the Act. But their Lordships also observed that Section 19 (4) "indicates in plain language that a decree for nullity can only be given on proof of the fact that the former husband or wife was living at the time of the second marriage. There is no room left here for the application of Section 107, Evidence Act. The Divorce Act governs these proceedings and Section 107 Evidence Act must be ignored as it is in conflict." It cannot, however be overlooked that a Hindu marriage is considered to be a sacrament and its annulment is a more serious matter than the annulment of a marriage governed by the Indian Divorce Act. I would, therefore, take the view that the observations in the above case about Section 107 not applying to cases of annulment of marriage on the ground of spouse being alive hold good under the Hindu Marriage Act also even though there is no provision parallel to Section 7 of the Divorce Act in Hindu Marriage Act and Section 16 of the Hindu Marriage Act saves the legitimacy of issues of the marriage for the purposes of inheritance from the parents. The special rule applied in the matrimonial jurisdiction in England in this case must be regarded as applicable to proceedings under the Hindu Marriage Act also. 5. It also seems to me that on facts this is a case where the presumption of the person continuing alive is offset by the implied admission of the appellant himself to the contrary. Section 5 Hindu Marriage Act makes the marriage of a person with a living spouse invalid. It may, therefore, be legitimately taken, in the absence of a cogent explanation, that a party to a Hindu marriage represents that he has no other spouse living on the date of the marriage. This implied admission can, therefore, be properly imputed to the appellant and suffices to neutralise the presumption under Section 107 Evidence Act. 6. It may, therefore, be legitimately taken, in the absence of a cogent explanation, that a party to a Hindu marriage represents that he has no other spouse living on the date of the marriage. This implied admission can, therefore, be properly imputed to the appellant and suffices to neutralise the presumption under Section 107 Evidence Act. 6. In view of these Bindings, it is not necessary to go into the other contentions on behalf of the appellant flowing from the foundation of the marriage being null and void. It was thus contended that if the marriage be taken to be a nullity, it would be doubtful whether an order for maintenance could be made at all and in any case the considerations for making such an order would be different and, therefore, the maintenance order would also fall with the impugned order about nullity of marriage. 7. The appeal fails and is hereby dismissed The parties are however left to costs of this Court.