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2004 DIGILAW 891 (AP)

Seenappa v. Lakshmi Devi

2004-08-25

K.C.BHANU

body2004
K. C. BHANU, J. ( 1 ) THE present criminal petition filed under section 482 of Code of Criminal Procedure, 1973 (for short Cr. P. C.), is directed against the order dated 27-6-2001 passed in crl. R. P. No. 11/98 on the file of the VII additional District and Sessions Judge, chittoor, whereunder the order passed by the learned Judicial Magistrate of I Class, kuppam in granting maintenance at the rate of Rs. 300/- per month from the date of the petition in M. C. 4 of 1996 on the file of the judicial Magistrate of I Class, Kuppam, was confirmed. ( 2 ) FOR the sake of convenience, the petitioner and the respondent in M. C. No. 4 of 1996 on the file of the Judicial Magistrate of I Class, Kuppam are hereinafter referred to as the 1st respondent and the petitioner. ( 3 ) THE brief facts that are necessary for disposal of the present petition may be stated as follows: the 1st respondent filed an application under Section 125 of Cr. P. C. , for grant of maintenance at the rate of Rs. 300/- per month stating that her marriage with the petitioner took place about 15 years back as per the Hindu rites and rituals. As her marriage took place at the age of 7, she was forced to stay at her parent s house, and after four years she attained puberty. Thereafter, the petitioner, after contacting illicit intimacy with Balamma, did not take the 1st respondent back. Therefore, she filed a petition under Section 125 of Cr. P. C. for maintenance. ( 4 ) TO substantiate the case of the 1st respondent, four witnesses were examined and five documents were marked. On behalf of the petitioner, one witness was examined and one document was marked. The trial court, accepting the evidence of P. W. 1 and the recitals in Exs. P-1 to P-5, came to the conclusion that the petitioner neglected his wife, 1st respondent, and ordered for maintenance at the rate of Rs. 300/- per month. Questioning the same, a revision was filed before the learned Sessions Judge, who has also confirmed the same. The trial court, accepting the evidence of P. W. 1 and the recitals in Exs. P-1 to P-5, came to the conclusion that the petitioner neglected his wife, 1st respondent, and ordered for maintenance at the rate of Rs. 300/- per month. Questioning the same, a revision was filed before the learned Sessions Judge, who has also confirmed the same. ( 5 ) THE learned counsel appearing for the petitioner contended that the 1st respondent never lived with the petitioner at any point of time as wife and that at the time of the marriage, the 1st respondent was aged about 7 years. Therefore, the alleged marriage, if any took place between the petitioner and the 1st respondent, is not a valid marriage in the eye of law so as to claim maintenance under Section 125 of Cr. P. C. , and therefore, he prays to quash the order impugned. ( 6 ) WHEN there is abuse of process of Court or otherwise, the inherent powers can be exercised by this Court under Section 482 of cr. P. C. A finding has been recorded by the trial Court to the effect "even her marriage took place on her 7th year with the respondent her marriage cannot be said to be void marriage and based, it will become voidable marriage. " Under Sections 11 and 12 of the hindu Marriage Act, if the bridegroom has not completed the age of 12 years, the marriage is neither void nor voidable marriage. One of the conditions required for solemnization of the marriage is that the bridegroom and the bride should have completed the age of 21 years and 18 years, respectively, at the time of the marriage. Admittedly, the 1st respondent was aged about 7 years at the time of marriage and therefore, though it is neither void or voidable marriage, but it is not a valid marriage. Even if it is not a valid marriage, if the 1st respondent lives with the petitioner for a considerable length of period as wife and husband, then she is entitled for maintenance. But the evidence on record would indicate that the 1st respondent was aged 7 years at the time of marriage, and after attaining puberty she was not taken to the house of the petitioner at any point of time. Therefore, the question of 1st respondent living with the petitioner does not arise. But the evidence on record would indicate that the 1st respondent was aged 7 years at the time of marriage, and after attaining puberty she was not taken to the house of the petitioner at any point of time. Therefore, the question of 1st respondent living with the petitioner does not arise. This important aspect of the case has been over looked by both the trial Court as well as the Revisional court. The document Ex. P-1 ration card shows that the 1st respondent is the wife of the petitioner herein. Based on only that document it cannot be said that both the petitioner and the 1st respondent were living together as husband and wife for a considerable length of period. Even the oral evidence adduced on behalf of the 1st respondent also clearly shows that they were living separately. They speak about the solemnization of marriage between the petitioner and the 1st respondent. According to them, the petitioner did not take the 1st respondent after she attained puberty. As the marriage is not a valid marriage in the eye of law, the 1st respondent is not entitled for any maintenance under Section 125 of cr. P. C. ( 7 ) THEREFORE, the proceedings in M. C. No. 4 of 1996 on the file of the Judicial magistrate of I Class, Kuppam, which was confirmed by the learned VII Additional district and Sessions Judge, Chittoor, are quashed. The criminal petition is allowed.