JUDGMENT Hon’ble Ashok Srivastava, J.—A brief reference to the factual position would suffice because essentially the dispute has to be adjudicated with reference to scope and ambit of Section 125 of the Code of Criminal Procedure, 1973 (in short the ‘Code’). 2. A petition under Section 125 Cr.P.C. was moved before the learned Judicial Magistrate, Court No. 14, Farrukhabad by opposite party No. 2 Smt.Sanju and opposite party No. 3 Vipin Kumar against the revisionist Sant Pratap Singh which was registered in that Court as Crl. Case No. 20/12/07. The said petition was decided by the learned Judicial Magistrate on 7.5.2007. The learned Magistrate dismissed the claim of opposite party No. 2 whereas he awarded a maintenance of Rs.2000/- p.m. to opposite party No. 3. Feeling aggrieved by the said judgment the revisionist filed a criminal revision before the learned Sessions Judge, Farrukhabad who after hearing the case allowed the revision, set aside the judgment and order passed by the learned Judicial Magistrate and remanded back the case for fresh hearing to the learned trial Court. Thereafter the matter was heard by the learned Judicial Magistrate, City, who vide his judgment and order dated 13.11.2007 allowed the petition under Section 125 Cr.P.C. and directed the revisionist to pay a sum of Rs.2200/- p.m. to opposite party No. 2 and a sum of Rs.2100/-p.m. to opposite party No. 3. Feeling aggrieved by all the three orders the revisionist has filed the present revision. 3. The petition under Section 125 Cr.P.C. was moved before the Court of learned Magistrate with the allegations that opposite party No. 2 was married to the revisionist on 10.2.1994 and out of this wedlock opposite party No. 3 was born. The revisionist is posted in the police department. After having a married life of some 6-7 years the revisionist due to certain reasons turned out opposite party Nos. 2 and 3 from his house after abusing and assaulting them. On enquiry the opposite party No. 2 came to know that the revisionist was having illicit relationship with one Smt. Kamlesha. Opposite party Nos. 2 and 3 have further alleged in the petition that both of them are not in a position to maintain themselves. It has further been contended therein that opposite party No. 2 is the legally wedded wife of the revisionist whereas opposite party No. 3 is his legitimate son. The revisionist contested the claim. Opposite party Nos. 2 and 3 have further alleged in the petition that both of them are not in a position to maintain themselves. It has further been contended therein that opposite party No. 2 is the legally wedded wife of the revisionist whereas opposite party No. 3 is his legitimate son. The revisionist contested the claim. He denied the allegations and averments levelled against him in the claim petition. He further stated that he was married to Smt. Kamlesha in the year 1977 and both of them are living together since then as husband and wife and they have two children out of this wedlock. The revisionist has further stated in his objection moved before the learned Magistrate that Dhan Singh is his real brother and a property dispute is there between the two. It has also been stated that opposite party No. 2 is a kept of Dhan Singh and opposite party No. 3 is his illegitimate child. The revisionist has further stated that on the instigation of Dhan Singh opposite party No. 2 has filed the petition under Section 125 Cr.P.C. with false allegations in order to extract money from the revisionist. 4. After hearing both the parties the picture which emerged before the learned Magistrate was that the revisionist had married Smt. Kamlesha in the year 1977 but unfortunately the couple could not beget a child. Thereafter in the year 1994 the revisionist married opposite party No. 2. This was his second marriage. Out of this second wedlock a son was born who is opposite party No. 3. After the birth of opposite party No. 3 Smt. Kamlesha the first wife of the revisionist became pregnant and she also gave birth to a male child. Thereafter another child was also born to Smt. Kamlesha. After a few years the revisionist started avoiding his second wife, opposite party No. 2 and after sometime started maltreating her and one day he turned her out of his house alongwith opposite party No. 3. Thereafter opposite party No. 2 alongwith her son went to her father’s home and since then she is living there having no means to maintain herself and her minor son. 5. I have heard learned counsel for the parties and perused the records. 6. Thereafter opposite party No. 2 alongwith her son went to her father’s home and since then she is living there having no means to maintain herself and her minor son. 5. I have heard learned counsel for the parties and perused the records. 6. The first point which has been submitted before me by the learned counsel for the revisionist is that the learned lower Court has failed to appreciate the evidence adduced from his side whereby he had contended before the learned lower Court that opposite party No. 2 Smt.Sanju was a concubine of one Dhan Singh, younger brother of the revisionist. It has been further submitted in this regard that the revisionist had certain property dispute with Dhan Singh and this dispute was of such a nature that once Dhan Singh had fired upon the revisionist by his gun, but the fire missed its target. In this reference it has also been submitted from the side of the revisionist that due to intervention of his mother, the revisionist did not lodge an F.I.R. in the matter or take any action. 7. I have examined the judgment dated 13.11.2007 of the learned lower Court who has given a categorical finding regarding this contention. The learned Magistrate has found that but for the bald statement of the revisionist and his first wife Smt. Kamlesha there is nothing on the record which may indicate that opposite party No. 2 was a concubine of Dhan Singh. The learned lower Court has referred the statement of the mother of Dhan Singh in this regard and also various documents which indicated that marriage had taken place in between the revisionist and opposite party No. 2. There is also a categorical finding of the learned lower Court in which it has held that proof of property dispute or firing by Dhan Singh upon the revisionist have not been proved by the revisionist. In this regard I have examined the judgment of the lower Court and other materials available on record. I find that this finding of the lower Court is based on evidence and it cannot be said that this finding of fact is perverse. Therefore, in revision this Court is not inclined to interfere with this factual aspect of the matter. In this regard I have examined the judgment of the lower Court and other materials available on record. I find that this finding of the lower Court is based on evidence and it cannot be said that this finding of fact is perverse. Therefore, in revision this Court is not inclined to interfere with this factual aspect of the matter. It is sufficient to say that on both the occasions both the Magistrates have given a clear-cut finding that a marriage had taken place in between the revisionist and opposite party No. 2. They have also given categorical findings that opposite party No. 3 Vipin Kumar is the minor son of the revisionist and opposite party No. 2. 8. The revisionist had filed his objection on the petition filed by opposite party No. 2 under Section 125 Cr.P.C. in the Court of the learned Magistrate. In his objection the revisionist has said that he even does not know opposite party No. 2 but at the same time he has also stated that opposite party No. 2 is a concubine of his younger brother. In his cross-examination before the learned Magistrate a photograph was shown to him regarding which he has admitted that he was sitting in the photograph alongwith opposite party No. 2, his mother and his nephew. These facts go to show that on material points the revisionist had tried to mislead the Court by speaking lies. 9. From the perusal of judgments impugned it is evident that both the learned Magistrates have given a distinct finding that opposite party No. 2 Smt.Sanju had married the revisionist in the year 1994. The Magistrates have also given categorical findings that the revisionist was married to one Kamlesha Devi in the year 1977 i.e. much before the marriage of the revisionist with opposite party No. 2. 10. Mr.Lokesh Varun, learned Judicial Magistrate, Court No. 14, Farrukhabad vide his judgment and order dated 7.5.2007 passed in complaint case No. 20/12/07 has said that since opposite party No. 2 was the second wife of the revisionist,she is not entitled to get a maintenance from the revisionist because the second marriage was a void marriage. He had relied upon the judgment of Supreme Court reported as Bakulabai and another v. Ganga Ram and another. This judgment of Mr. He had relied upon the judgment of Supreme Court reported as Bakulabai and another v. Ganga Ram and another. This judgment of Mr. Lokesh Varun was challenged before the learned Sessions Judge, Farrukhabad, who did not agree with the finding given by the learned Magistrate and with certain unreasonable findings and without considering the ratio of Bakulabai’s case, the learned Sessions Judge allowed the revision and remanded the case back for fresh consideration by the learned Magistrate. It is very astonishing that before passing his revisional judgment the learned Sessions Judge did not try even to read the ratio given by the Apex Court in Bakulabai’s case and by adopting a queer logic he remanded the matter for fresh trial. 11. In my opinion the learned Sessions Judge should have behaved in a more matured manner while giving certain directions to the lower Court. It appears that he forgot that the Court of a magistrate is judicially subordinate to a Sessions Judge and it is bound to follow the directions given by him in revision. I find that because of illogical directions given by him in his revisional judgment to the lower Court the learned judicial magistrate, City, was forced to give certain findings which probably he would not have given while he was deciding the remanded petition Under Section 125 Cr.P.C. had he been properly directed by the learned Sessions Judge. 12. Mr. Chandra Pal the learned Judicial Magistrate City, Farukhabad has on 13.11.2007 passed the relevant judgment in case No. 127/12/2007 which is actually and substantially impugned herein. The learned Magistrate has given a clear-cut finding that respondent No. 2 is the second wife of the revisionist. From his judgment it also appears that when opposite party No. 2 married the revisionist she had knowledge that the revisionist was already married to one Smt. Kamlesha Devi. The learned Judicial Magistrate City, has also given a categorical finding that opposite party No. 3, is the son of opposite party No. 2 and the revisionist. He has allowed maintenance to opposite party No. 3 but at the same time he also allowed maintenance to opposite party No. 2 holding that she is a legally married wife of the revisionist. 13. The only legal issue involved in the instant case is that whether opposite party No. 2 Smt.Sanju is entitled to get any maintenance from the revisionist or not. 14. 13. The only legal issue involved in the instant case is that whether opposite party No. 2 Smt.Sanju is entitled to get any maintenance from the revisionist or not. 14. Factually, it has been established that the revisionist was married to one Smt. Kamlesha Devi in the year 1977. He did not have a surviving child from Smt. Kamlesha and it appears that in these circumstances he had decided to marry opposite party No. 2 and did marry her in the year 1994. It also appears that opposite party No. 3 was born out of the second marriage of the revisionist. Facts also show that after the birth of opposite party No. 3 Smt.Kamlesha Devi gave birth to a male child, who is alive. After the birth of this child,it appears, that the revisionist had started misbehaving with opposite party No. 2 and opposite party No. 3 and he turned them out of his house forcing opposite party No. 2 to go back to her father’s house where she is living with her son, opposite party No. 3. In the instant case factually it has been established that opposite party No. 2 is the second wife of the revisionist and opposite party No. 3 is his illegitimate son. Now let us examine the status of opposite party No. 2. Section 11 of The Hindu Marriage Act, 1955 states as follows : “11.Void marriages.—Any marriage solemnised after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5.” The above Section clearly states that any marriage solemnised after the commencement of the Hindu Marriage Act, 1955 shall be null and void if it contravenes any one of the conditions specified in Clauses (i), (iv) and (v) of Section 5 of the Hindu Marriage Act, 1955 which is as follows : “5. Conditions for a Hindu Marriage.—A marriage may be solemnised between any two Hindus, if the following conditions are fulfilled, namely : (i) neither party has a spouse living at the time of the marriage (ii) at the time of the marriage, neither party— (a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or (b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or (c) has been subject to recurrent attacks of insanity. (iii)The bridegroom has completed the age of twenty one years and the bride, the age of eighteen years at the time of the marriage; (iv)The parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two; (v) the parties are not sapindas to each other, unless the custom or usage governing each of them permits of a marriage between the two; 15. From the perusal of the sections it is evident that a marriage cannot be solemnised between any two Hindus if either party has a spouse living at the time of the marriage. If section 5 and Section 11 of the Hindu Marriage Act, 1955 are read together it is evident that any marriage solemnised between any two Hindus shall be null and void if any of the parties has a spouse living at the time of the marriage. In Bakulabai and another v. Ganga Ram and another, 1988(25) ACC 119, the Apex Court has said that the marriage of a Hindu woman with a Hindu male with a living spouse, performed after the commencement of the Hindu Marriage Act, 1955 is null and void and the woman is not entitled to maintenance under Section 125 of the Cr.P.C. The judgment was passed by the Supreme Court on 27.1.1988. On the same date the same Bench of the Supreme Court passed another judgment in Smt.Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and another, AIR 1988 SC 664. This judgment is a detailed judgment in which the Supreme Court has stated that Section 5 of the Hindu Marriage Act, 1955 lays down the necessary conditions for a lawful marriage. 16. On the same date the same Bench of the Supreme Court passed another judgment in Smt.Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and another, AIR 1988 SC 664. This judgment is a detailed judgment in which the Supreme Court has stated that Section 5 of the Hindu Marriage Act, 1955 lays down the necessary conditions for a lawful marriage. 16. It is a necessary condition for a lawful marriage that neither party should have a spouse living at the time of the marriage. A marriage in contravention of this condition, therefore, is null and void. Section 11 of the Hindu Marriage Act, 1955 deals with void marriages. A marriage covered by Section 11 of the Act is void ipso jure i.e. void from the very inception, and has to be ignored as not existing in law at all if and when such a question arises. Such a question also arises when a petition under Section 125 Cr.P.C. is dealt with by the Court of a Magistrate. From the perusal of the provisions of Section 125 Cr.P.C. it is evident that the Magistrate, before granting maintenance to a woman claiming herself to be married to the person from whom she is claiming maintenance has to hold that such woman is wife. Wife means a legally wedded wife. If the woman claiming maintenance is not legally wedded wife of the person from whom the maintenance is being claimed her petition for maintenance cannot be allowed. Therefore in such circumstances personal law of the parties has to be considered. In Hindus marriage with person having living spouse is null and void and not voidable. Therefore, an attempt to exclude altogether the personal law applicable to the parties from consideration is improper. In Savitaben Somabhai Bhatiya v. State of Gujrat and others, 2005 (51) ACC 923, the Apex Court while referring Nanak Chand v. Chandra Kishore Agarwala and others, 1969 (6) ACC 200 (SC), has said that the provisions of personal law are applicable and enforceable where parties are governed by such Act. Referring the Yamunabai’s case (supra) the Supreme Court has further held that the personal law is relevant for deciding the validity of the marriage and therefore,it cannot be altogether excluded from the consideration. 17. Referring the Yamunabai’s case (supra) the Supreme Court has further held that the personal law is relevant for deciding the validity of the marriage and therefore,it cannot be altogether excluded from the consideration. 17. The Apex Court in Smt.Yamunabai’s case (supra) has finally held that the marriage of a woman in accordance with the Hindu rites with a man having a living spouse is a complete nullity in the eye of law and she is, therefore, not entitled to the benefit of Section 125 of the Code. Further in Savitaben’s case (supra) the Supreme Court has said that the expression ‘wife’ used in Section 125 of the Code should be interpreted to mean only a legally wedded wife. The word ‘wife’ is not defined in the Code except indicating, in the explanation to Section 125, its inclusive character so as to cover a divorcee. A woman cannot be a divorcee unless there was a marriage in the eye of law preceding that status. The expression must therefore be given the meaning in which it is understood in law applicable to the parties. The marriage of a woman in accordance with the Hindu rites with a man having a living spouse is a complete nullity in the eye of law and she is therefore not entitled to the benefit of Section 125 of the Cr.P.C. or the Hindu Marriage Act. 18. Section 125 of Cr.P.C. has been enacted in the interest of a wife and one who intends to take benefit of this provision has to establish the necessary conditions. One of the necessary conditions is that the claimant should be 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 such status or relationship with reference to the personal law that an application for maintenance can be maintained. In (2008) 4 SCC 774 , Chand Patel v. Bismillah Begum and another, the Supreme Court has considered this aspect of relationship of Hindus also despite the fact that the case is in reference of Muslim parties. Paragraph 24 should be quoted here : “24. Although the law applicable in this case is under the personal law of Muslims, it has many similarities with the provisions of Sections 11 and 12 of the Hindu Marriage Act, 1955. Paragraph 24 should be quoted here : “24. Although the law applicable in this case is under the personal law of Muslims, it has many similarities with the provisions of Sections 11 and 12 of the Hindu Marriage Act, 1955. Section 11 of the 1955 Act, defines ‘ void marriages’ and provides that any marriage solemnised after the commencement of the Act shall be null and void and on a petition presented by either party thereto, be so declared by a decree of nullity if it contravened any one of the conditions specified in Clauses (i), (iv) and (v) of Section 5 of the Act. In Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav, this Court had held that marriages covered by Section 11 are void ipso jure, that is, void from the very inception and have to be ignored as not existing in law at all. A marriage in contravention of Section 11 must be treated as null and void from its very inception.” In the above case the Apex Court has categorically said that the marriages covered by Section 11 of the Hindu Marriage Act, 1955 are void ipso jure i.e. void from very inception and have to be ignored as not existing in law at all. A marriage in contravention of Section 11 of the Hindu Marriage Act must be treated as null and void from its very inception. 19. Now the position of law is clear. Law recognizes the claim of maintenance by an illegitimate child, but it does not recognize a claim by an illegitimate wife. Section 16 of the Hindu Marriage Act, 1955 clearly says that a child born out of a void or voidable marriage shall be a legitimate child in the eye of law. Therefore, he is always entitled to a claim of maintenance under Section 125 of Cr. P.C. 20. From the perusal of the relief clause of this revision it is evident that the revisionist has filed this revision with the prayers that the orders passed by the learned lower Courts on 7.5.2007, 24.2.2007 and 13.11.2007 be quashed and set aside. I have perused all the three judgments reference whereof has been given in this revision. P.C. 20. From the perusal of the relief clause of this revision it is evident that the revisionist has filed this revision with the prayers that the orders passed by the learned lower Courts on 7.5.2007, 24.2.2007 and 13.11.2007 be quashed and set aside. I have perused all the three judgments reference whereof has been given in this revision. It will complicate the matter if it is decided by this Court as to which order is to be set aside or which is not to be set aside or which is to be set aside partially. Therefore, while disposing of this criminal revision the following directions are given : (i) The petition filed by opposite party No. 2 Smt.Sanju and opposite party No. 3 Master Vipin Kumar Singh (minor) under Section 125 Cr. P.C. before the Court of learned Magistrate concerned is partly allowed. (ii)The claim of opposite party No. 2 Smt. Sanju is rejected as she is not legally wedded wife of the revisionist. (iii)The claim for maintenance of Master Vipin Kumar Singh, minor is partly allowed. It is further held that he is entitled to get a sum of Rs.2,100/-p.m. from the revisionist from the date of the petition till the date the child attains the age of majority. the Apex Court while referring (iv) The revisionist is directed to pay to opposite party No. 3, Master Vipin Kumar Singh, minor, the entire arrears of maintenance within a period of three months from today and this amount shall be paid to the opposite party No. 2, the mother of Master Vipin Kumar Singh, opposite party No. 3, as she is his natural guardian and she will receive this amount on behalf of opposite party No. 3. (v) The revisionist is also directed to pay the above mentioned future monthly amount of maintenance to opposite party No. 3 by 10th of each succeeding month through his mother, opposite party No. 2. With the above directions the revision is finally disposed of. ————