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1998 DIGILAW 434 (RAJ)

Kalu Ram v. Smt. Lachma Devi

1998-03-26

SHIV KUMAR SHARMA

body1998
JUDGMENT 1. - Instant revision impugns the order dated Feb.20, 1998 of the learned Judge Family Court Jaipur whereby the application under Section 125 Cr.P.C. submitted by the non-petitioner was allowed and the petitioner was directed to pay maintenance allowance at the rate of Rs.400/- per month to the non-petitioner from the date of filing the application. 2. Mr. Narendra Jain, learned counsel appearing for the petitioner made scathing criticism of the impugned order and canvassed that marriage between the petitioner and non-petitioner was void ab-initio. The petitioner was already married but was having no issue therefore he entered into second marriage With the non-petitioner. Second marriage is not permissible amongst Hindus. The non-petitioner also admitted this fact in her application that the. petitioner was already married. Mr. Jain, learned counsel further contended that provisions of section 125 Cr.PC. are not applicable to second marriage and second wife is not entitled to maintenance. Reliance was placed on Smt. Yamuna Bai v. Anant Rao ( AIR 1988 SC 644 ) Mst. Sarbati v. Ramchandra (RLW 1989 (1) 243) and Ram Charan Singh v. Smt. Sushila Devi (1987 WLC (Raj.) 263) . 3. I am afraid, the argument is not well founded. Admittedly, the petitioner and non-petitioner belong to Meena Schedule Tribe and are not governed by the provisions of Hindu Marriage Act, 1955 by virtue of section 2 of the said Act. Customary Nata Marriages are recognised amongst Meenas. It is no doubt true that the petitioner was already married when he entered into 'Nata Marriage' with the non-petitioner but in view of custom prevailing in 'Meena tribe' it can not be said that 'Nata marriage' was void ab-initio. Therefore, I hold that 'Nata marriage' of the non-petitioner with the petitioner was governed by their personnel law and application under section 125 Cr.PC. was maintainable. 4. In Smt. Yamuna Bai v. Anant Rao (supra) their Lordships of the Supreme Court propounded thus- "The attempt to exclude altogether the personal law applicable to the parties from consideration is improper. Section 125 has been enacted in the interest of a wife, and one who intends to take benefit under sub-section 1 (a) has to establish the necessary condition, namely, that she is the wife of the person concerned. This issue can be decided only by a reference to the law applicable to the parties. Section 125 has been enacted in the interest of a wife, and one who intends to take benefit under sub-section 1 (a) has to establish the necessary condition, namely, that she is the wife of the person concerned. This issue can be decided only by a reference to the law applicable to the parties. It is only where an applicant establishes her status or relationship with reference to the personal law that an application for maintenance can be - maintained The issue whether the section is attracted or not cannot be answered except by the reference to the appropriate law governing the parties." (Emphasis supplied) 5. Ratio of cases Mst. Sarbati v. Ram Chandra (supra) and Ram Charan Singh v. Smt. Sushila Devi (supra) is not applicable to the case on hand as the parties in the said cases were governed by the Hindu Marriage Act, 1955. 6. Learned court below has properly dealt with the evidence of the parties as well as the legal provisions and rightly observed that parties are governed by their personal law. I do not see any infirmity in the impugned order. 7. Resultantiy, the revision stands dismissed in limine. *******