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1990 DIGILAW 42 (PAT)

Bhim Singh v. State of Bihar

1990-02-01

UDAY SINHA

body1990
JUDGMENT Uday Sinha, J. - This application under Section 482 of the Code of Criminal Procedure, is directed against the order dated 13.6.1988 passed by Mr. R. P. Dhyani, Judicial Magistrate 1st Class, awarding maintenance of Rs. 150/- per month to Hemawati Devi opposite party no. 2 and her son Abhay Nath Singh. The order of the learned Magistrate was affirmed by the Judicial Commissioner, Ranchi with slight modification in regard to the maintenance to be paid to heer son Abhay Nath Singh. 2. The application could have been disposed of on a short ground namely that no revision is maintainable against the order passed in revision. That bar of Section 397 (3) cannot be circumvented by lebelling an application for exercise of the jurisdiction by this Court as one under Section 482 of the Code of Criminal Procedure. The application should fail on that score. 3. I have, however, out of deference to the submission urged on behalf of the petitioner, heard this application on merit but I have failed to find anything in favour of the petitioner. 4. Opposite party no. 2 claimed maintenance from the petitioner on the ground that she was the legally married wife of the petitioner. Her case was that she was the first wife. While the marriage was subsisting, the petitioner had taken another woman as Wife. She, therefore, claimed maintenance for herself and for her minor son. 5. The learned Magistrate found as a fact that Hemawati Devi opposite party no. 2 was the wife of the petitioner. He also held that the petitioner had a second wife and that opposite party no. 2 was the first wife in order of chronology. The court below found that the petitioner had failed to maintain opposite party no. 2 Hemawati Devi. 6. Learned counsel for the petitioner stated that earlier Surajmani had also claimed maintenance from the petitioner and a Judicial Magistrate had awarded maintenance. She had also claimed to be the wife of the petitioner. In that situation the submission urged on behalf of the petitioner that a person cannot be asked to pay maintenance to two women as wives as the second marriage would be unlawful. The proposition in law enunciated is sound and has the support of a decision of the Supreme Court in Smt. Yamuanabai Anantrao Adhav vs. Anantrao Shivram Adhav : 1988 S. C. 644. The proposition in law enunciated is sound and has the support of a decision of the Supreme Court in Smt. Yamuanabai Anantrao Adhav vs. Anantrao Shivram Adhav : 1988 S. C. 644. The application of the law, laid down by the Supreme Court, however, goes against the petitioner. The finding is that opposite party no. 2 is the first wife. That being the situation, if there was any other wife and that would not be legally wedded wife. The second women, therefore, is not entitled to any maintenance. The marriage of the petitioner with Surajmani would be nullity. In this application I am not called upon to set aside the order of the learned Magistrate awarding maintenance to Surajmani. For that the petitioner will have to take recourse either to Section 127 of the Code of Criminal Procedure or to a civil suit. If the petitioner has suffered all order against him at the instance of Surajmani, opposite party no. 2 cannot be denied her legitimate rights. In that view of the matter, the order for maintenance in favour of opposite parties nos. 2 and 3 is unassailable. The application, therefore, fails and is rejected accordingly, with liberty to the petitioner to get it declared from the civil court whether opposite party no. 2 is the first wife or whether Surajmani is the first wife. The civil court or any other authority will award maintenance only to the first wife.