JUDGMENT D.M. Dharmadhikari, J. 1. This appeal has been preferred by the husband against the judgment dated 15.3.1995 of First Additional Judge to the Court of District Judge, Raigarh passed in Civil Suit No. 20A of 1991 rejecting the petition filed by the appellant/husband under Section 5 of the Hindu Marriage Act, 1955 seeking a decree of nullity of his marriage with the respondent. 2. In support of his petition seeking a decree of nullity of marriage on the ground that his second marriage with the respondent was null and void, the petitioner/appellant examined himself in the Court below as PW 1. In his testimony, he states that about 30 years back, he was legally married to one Savitribai and from that marriage a son named Baranlal was born. According to him, he had developed illicit relations with the respondent about 15 or 16 years prior to the filing of the petition and the respondent lived with him only for six months. She thereafter deserted him and went back to live with her parents. According to him, she thereafter never returned to his house and he is still living with his first wife Savitribai. He admits that the petition for seeking decree of nullity of marriage was filed consequent upon the Judicial Magistrate passing an order of maintenance against him under Section 125, Criminal Procedure Code on 24.10.1989 in favour of the wife and Santoshibai, a daughter alleged to have been born to the petitioner through the respondent. A criminal revision preferred against the order of the Judicial Magistrate was rejected by the Court of Sessions on 2.4.1990. The present petition seeking decree of nullity of marriage was filed on 17.9.1990. The petitioner in his cross-examination admitted that his first wife Savitribai had left the village where they jointly lived about 10-12 years back. He, however, denied that Savitribai (his former wife) had married and is now living in village Dilli. The petitioner also denied that the girl Santoshi was born from the wedlock between him and the respondent. 3. The petitioner in support of his case also examined one witness, PW 2 Sahdeo, who stated that Savitribai was married wife of the petitioner but admitted that Savitribai had gone to village Dilli for working there as labourer. He, however, states that Savitribai is occasionally on visiting terms with the petitioner. 4. 3. The petitioner in support of his case also examined one witness, PW 2 Sahdeo, who stated that Savitribai was married wife of the petitioner but admitted that Savitribai had gone to village Dilli for working there as labourer. He, however, states that Savitribai is occasionally on visiting terms with the petitioner. 4. The respondent-wife resisted the proceedings and in her statement as DW 1 stated that her marriage was performed with the petitioner with necessary marriage rituals in accordance with the customs of her community. She states that she lived with the petitioner for long twenty years and out of the wedlock she gave birth of daughter Santoshi who is now aged 15 years and is studying in 10th Class. She stated that the petitioner was first married to one Gantulheen and gave birth to a son named Baranlal. After the death of his first wife Gantulheen, he married Savitribai who lived with him only for about a month. Savitribai then deserted him and has taken a second husband named Dharamlal. She further stated that Savitribai also gave birth to a son and a daughter through Dharamlal and both of them have also been married. In her cross-examination, she stated that at the time of marriage with her, Savitribai had already deserted the petitioner and the petitioner told her that she had also deserted Savitribai. She denied that without any marriage she had developed illicit relation with the petitioner and lived with him only for six months. 5. The wife in support of her case also examined one witness Damrudhar (DW 2). The said witness is related to the petitioner as uncle. The witness stated that the petitioner had married Savitribai about 25 years back and after a year of marriage Savitribai had deserted him. He also states that Savitribai is living in village Dabhra with Dharamlal as her husband. She has also given birth to two children from Dharamlal and she had not given birth to any child from the petitioner. He states that in their community of Sahus, there is a custom of Chhod-Chhutti and second Churi marriage. He stated that the marriage with the present respondent was formally performed with rituals. He also stated that all Hindu rituals of marriage and the procession of Barat were witnessed by him as one of the members of the marriage party. He states that in their community of Sahus, there is a custom of Chhod-Chhutti and second Churi marriage. He stated that the marriage with the present respondent was formally performed with rituals. He also stated that all Hindu rituals of marriage and the procession of Barat were witnessed by him as one of the members of the marriage party. In his cross-examination, he stated that as per the custom in the community, where a wife deserts her husband, ex-parte divorce is recognised in the community, if none of the parties call any Panchayat. He states that since Savitribai had contracted re-marriage, as per the custom of the community her marital connections with her former husband had broken. 6. There are other witnesses Bhagatdas (DW 3) and Jhaduram (DW 4) to corroborate the version of the wife and her other witness that a formal marriage with necessary rituals of the parties was performed in the village to their knowledge. 7. On the above evidence, learned trial Judge came to the conclusion that at the time of marriage of the petitioner with the respondent, there was no subsisting valid marriage of the petitioner with his former wife Savitribai. 8. Mr. G.S. Ahluwalia, learned Counsel appearing for the husband in this appeal, contends that the fact of first marriage of the petitioner with Savitribai has been admitted by the respondent and her main supporting witness DW 2Damrudhar. It is argued that in the absence of evidence of any valid divorce through Court or by custom with Savitribai, the former marriage subsisted at the time when the second marriage was contracted by the petitioner with the respondent. According to the learned Counsel for the husband, therefore, the marriage was null and void being in contravention of the provisions of Section 5(1) of the Act. It is also argued that the plea of customary divorce could not be looked into without proper pleadings and evidence in support thereof. Reliance is placed on Surjit Kaur v. Garja Singh and Ors., AIR 1994 SC 135 =11 (1992) DMC 443 (SC). 9. Miss Rama Gupta with Mr. P.C. Jain, learned Counsels appearing for the wife, supported the judgment of the Trial Court. Reliance is placed on Surjit Kaur v. Garja Singh and Ors., AIR 1994 SC 135 =11 (1992) DMC 443 (SC). 9. Miss Rama Gupta with Mr. P.C. Jain, learned Counsels appearing for the wife, supported the judgment of the Trial Court. On behalf of the wife it is argued that the burden of proving the fact that a valid marriage with Savitribai was contracted by the petitioner and subsisted when he contracted marriage with the respondent was on the petitioner and he failed to discharge it by producing satisfactory evidence. If Savitribai was on visiting terms with him, she could have been examined as a witness. 10. Section 5(i) provides as one of the essential conditions for a valid Hindu Marriage that "neither party has a spouse living at the time of the marriage". The word 'spouse' has been used to mean either husband or wife. When a decree of nullity of marriage is sought on the ground of contravention of essential condition contained in Section 5(i) of the Act, the burden is on the party seeking such a declaration or decree of nullity of marriage to prove that a valid marriage was contracted with the former spouse and such marriage was in existence when the second marriage was gone through. In the instant case, the alleged illicit connection between the petitioner and the respondent developed about 10-15 years back. The petition for seeking a decree of nullity of marriage was filed only after the Judicial Magistrate fixed liability of payment of maintenance on the petitioner/husband to the wife and daughter. The case of the husband is that his marriage with Savitribai subsisted on the date of his second marriage with the respondent and Savitribai continued to be on visiting terms with him. If that was so, it would not have been difficult for him to have produced her in evidence to prove the fact of a subsisting marriage. Non-examination of Savitribai was rightly taken to be an adverse circumstance against subsistence of valid marriage between Savitribai and the petitioner. 11. After going through the evidence on record, I find no ground to reject the testimony of the wife and her witness. Damrudhar (DW 2) who is related to the husband states that Savitribai had long back deserted the petitioner and had in fact re-married one Dharamlal. 11. After going through the evidence on record, I find no ground to reject the testimony of the wife and her witness. Damrudhar (DW 2) who is related to the husband states that Savitribai had long back deserted the petitioner and had in fact re-married one Dharamlal. This fact of re-marriage of Savitribai with Dharamlal had not been subjected to any cross-examination by the husband as is apparent from the statement of Damrudhar (DW 2) in his cross-examination. 12. The word "spouse" used in Section 5(i) of the Act has to be understood in its legal sense. The word "spouse" also denotes that at the time of marriage no party to the marriage should have already a lawfully married partner. The better expression in place of the word "spouse" used in Section 5(i) of the Act would have been as is to be found in English Matrimonial Causes Act, 1973 where a marriage is said to be void if "at the time of marriage, either party was already lawfully married". The "spouse", therefore, is one who is 'lawfully married'. In the instant case, the husband utterly failed to prove that he had contracted a valid marriage with Savitribai as neither Savitribai has been examined nor any independent witness of the village has been examined to prove that Savitribai was not just a concubine but a legally wedded wife. 13. The petitioner has not proved the fact of performance of any valid marriage by him with Savitribai. Where the ground for seeking decree of nullity of marriage is alleged to be bigamous marriage, the burden to be strictly discharged is on the party asserting bigamous marriage to prove that the first marriage was validly contracted and subsisted at the time when the second marriage was performed. In these circumstances, the Trial Court committed no error in disbelieving the version of the husband and his witness and relying on the testimony of the wife and her witnesses. The learned Trial Judge has also referred to the extract of voter list filed in evidence to show that the respondent was shown as a voter living jointly with the petitioner. He has also found that the name of Savitribai in the voter list was a subsequent interpolation and has in fact directed criminal action to be taken in the matter against those responsible for fabricating a public document. He has also found that the name of Savitribai in the voter list was a subsequent interpolation and has in fact directed criminal action to be taken in the matter against those responsible for fabricating a public document. The husband was rightly disbelieved that the respondent lived with him only for about six months and thereafter deserted him. There is no ground to disbelieve the wife that she lived with the petitioner as wife for a long period and gave birth to a daughter and thereafter she was driven out of the house. 14. Consequently, this appeal has no force and the same is hereby dismissed with costs. Counsel's fee Rs. 500/-, if certified.