1. This application, under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the “Code”), has been filed for quashing the impugned order dated 24-6-2002 passed in Cr. Rem. No. 75/1999/6/2000 by learned 1st Additional Sessions Judge, Bermo at Tenughat and also for quashing the order dated 15-9-1999 passed by learned Judicial Magistrate, 1st Class. Bermo at Tenughat in Maintenance Case No. 25 of 1997.
2. The present application has arisen out of an order passed in revision application No. 75/99/6/2000. Opposite party No. 2 along with her son opposite party No. 3 filed a petition before learned Court below for allowing them maintenance on the ground that opposite party No. 1 is legally wedded wife of petitioner and opposite party No. 2 is their son. Opposite party No. 2 further alleged in the petition that the marriage was solemnized in the year 1992 according to Hindu Rites and Customs. Till 2 and 1/2 years the marital relation between them, (petitioner and opposite party No. 2) remained peaceful but thereafter on account of illegal demand made by the parents of the petitioner and non-fulfilment of the demands on the part of the opposite party No. 2 and her parents, she was subjected to cruelty and several panchayaties were convened in order to settle the disputes between them but there was no result and ultimately opposite party No. 1 was driven out from the house of the petitioner when she was carrying a pregnancy. Finding no way, opposite party No. 1 took shelter in the house of her parents and was blessed with a son. Opposite party No. 2 alleged that she has no source of income of her own to maintain her and her son, whereas petitioner has got sufficient means. She filed a petition for maintenance, which was allowed and opposite party No. 1 was granted a sum of Rs. 300/-, as a maintenance allowance and her son was granted a sum of Rs. 150/- as maintenance allowance. As against the order of the learned Court below, petitioner preferred revision before the Sessions Judge, which was registered as Criminal Revision No. 75/1996/6/2000, which was transferred to the Court of 1st Addl. Sessions Judge, Bermo at Tenughat and the learned 1st Additional Sessions Judge, after hearing the parties, dismissed the revision application. Learned counsel for the petitioner submitted that the petitioner has filed Title(M) Suit No. 7 of 1994–95 against the opposite party No. 1 for annulment of the marriage by a decree of nullity under Section 12(1)(c) of the Hindu Marriage Act and the said suit was decreed ex parte vide order dated 20-6-1997, as the opposite party No. 1 did not appear and it was held that the Marriage of the petitioner with the respondent (opposite party No. 1) which is voidable is annulled under Section 12(1)(c) of the Hindu Marriage Act.
3. Learned counsel further pointed out the opposite party filed Miscellaneous Case No. 26 of 1997. under Order 9, Rule 13 of the Code of Civil Procedure, for setting aside the ex parte decree dated 20-6-1997 and said Miscellaneous Case was dismissed by order dated 2-12-99 and then the opposite party No. 2 filed a Miscellaneous Application No. 1993 of 2000 before the Hon'ble Jharkhand High Court against the order dated 2-12-1999 but that, too, being Miscellaneous Appeal No. 193 of 2000 has been dismissed by the Hon'ble High Court. It was further submitted that on the day of marriage on 11-4-1992, age of the petitioner was below 17 years as the date of birth of the petitioner is 2-6-1975. The revisional Court was informed about the decisions passed in Tide (M) No. 7/94 and Miscellaneous Appeal No. 193/2000. It was also pointed out that the instant application for maintenance under Section 125. Cr. P.C was filed in 1997 being Maintenance Case No. 25/97 disposed of on 15-9-1999. Ii was also pointed out that as the marriage between the petitioner and opposite party No. 2 stands annulled under Section 12(1)(c) of the Hindu Marriage Act and as such, opposite party No. 2 will not be entitled for getting maintenance from the petitioner beside petitioner has got no regular source of income. It was also pointed out that opposite party No. 2 has filed a complaint case bearing Complaint Case No. 19/96 against the petitioner and his family members and has alleged that she has been assaulted and driven out from the house for non-fulfilment of demand of dowry but she has not stated in that complaint case that she has got any issue or children in that case. Judgment has been delivered and petitioner has been convicted but petitioner has filed appeal, which is pending in the Court of Session.
4. On the other hand, opposite party No. 2 appeared and has filed counter-affidavit.
5. In the counter-affidavit, a plea has been taken that the petitioner has tried to file second revision application under the garb of Section 182 of the Code of Criminal Procedure and this second revision is not maintainable and further that High Court in exercise of inherent power under Section 482. Cr. P.C will not embark upon inquiry as to the reliability or genuineness of the allegation made in the petition for maintenance under Section 125. Cr. P.C It is undisputed that the marriage procedure was followed in the temple in presence of the witnesses and out of wedlock a son was born, the son is entitled to maintenance.
6. The learned counsel appearing for the petitioner contended that opposite party No. 2 and opposite party No. 3 are not entitled to maintenance as marriage in question was performed under duress and marriage has been annulled by a decree and that annulment order passed by the Lower Court has been upheld up to the Hon'ble Court and it has assumed finality and there fore, opposite party No. 2 no longer is married wife of the petitioner because that annulment order will run from the date of marriage and it will be deemed that no marriage at all was performed in between the petitioner and the opposite party No. 2, and therefore, it cannot be said that there is any marriage of the petitioner with the opposite party No. 2 or marriage of O.P No. 2 with the petitioner was solemnized. The learned counsel for the petitioner further con tended that in the facts and circumstances of the case, since opposite party No. 2 cannot be held to be a legally married wife of the petitioner, she cannot be entitled to maintenance because marriage of the opposite party No. 2 with the petitioner has been annulled under the provision of Section 12(1)(c) of the Hindu Marriage Act as the petitioner was then minor and his consent was obtained under duress and therefore, he filed a case under Section 12(1)(c) of the Hindu Marriage Act and that was decided in his favour. Opposite party No. 2 took all steps for setting aside the decree of annulment but failed and that has assumed finality and, therefore, the decree will relate back to the period when marriage is said to have been performed as if no marriage took place between both the sides and, therefore, she cannot be said to be a legally married wife of the petitioner and neither she nor son can be entitled to maintenance.
7. On the other hand, learned counsel appearing for the opposite parties challenged the maintainability of this application under Section 482 of the Code of Criminal Procedure as the petitioner had filed a revision against the order of the learned Judicial Magistrate allowing maintenance to O.P No. 2 ® Rs. 300/- Per Month and to O.P No. 3 @ Rs. 150/- per month and that revision was dismissed and petitioner in the garb of Section 482, Cr. P.C has filed second revision, which is not maintainable at: all. Learned Counsel for the opposite parties further contended that O.P No. 2 had no knowledge of filing of the Title (M) Suit before the learned Court below and it was disposed of ex parte. Since O.P No. 2 had no knowledge of filing of the suit., it cannot be applicable against the O.P No. 2 and therefore, she will be entitled to maintenance. The learned counsel relied upon 1999 Cri LJ 3668 : ((1999) 6 SCC 326 : AIR 1999 SC 2374) in which it has been held that the neglect or refusal of the husband to maintain his wife is a sound ground for refusal of the wife to live with her husband and in the case, she will be entitled to maintenance. In the case law (supra) it has further been held that if the husband has got sufficient means to maintain his wife, neglects or refused to maintain his wife, and the wife is unable to maintain herself and her legitimate or illegitimate child (not being married daughter), who has attained majority and where such child is having physical or mental abnormality or injury, unable to maintain itself, will be entitled to maintenance.
8. From the submissions of the parties and case of the parties, facts which emerge are that the petitioner was married with the O.P No. 2 and the petitioner filed a Title (M) Suit No. 7 of 1994–95 which was decided ex parte against the O.P No. 2 and when she came to know of such decree having been passed against her, she filed a petition under Order IX. Rule XIII, C.P.C for setting aside the ex parte decree but that was dismissed and thereafter, she came before the Hon'ble Court in Misc. Appeal No. 1993 of 2000 but that too was dismissed and, therefore, ex parte decree passed against the opposite party No. 2 became final. The effect of such a marriage having been annulled by a decree has been discussed in (1988) 1 SCC 530 : AIR 1988 SC 644 : (1988 Cri LJ 793). In this case marriage of a person was solemnized with a lady, who had living spouse and, therefore, marriage was held to be null and void, it was held that for a lawful marriage, there is a necessary condition that neither party should have living spouse at the time of the marriage and the marriage in contravention of this condition is, therefore, null and void. It was further held that since the marriage of a lady was solemnized with a person having spouse living at the time of marriage and the marriage being null and void, she cannot be entitled to maintenance. Similarly, decree of annulment passed under Section 12(1)(c) of the Hindu Marriage Act though voidable in nature but since the decree of annulment has been passed and, it will relate back to the time when the marriage is said to have been solemnized and the marriage will be a nullity. The difference between the void and voidable marriage is that where any of the parties may claim dissolution of the marriage on the ground referred to in Section 12 of the Hindu Marriage Act and when in case of voidable nature of marriage, decree of Court is necessary and so long the decree is not passed, till then marriage will subsist and when such decree will be passed, the marriage will come to an end from the date of inception of marriage and therefore, in the instant case also, the wife will not be entitled to maintenance.
9. Contention of the learned counsel for the opposite parties that the petitioner has filed this application under Section 482 of the Code of Criminal Procedure in the garb of second revision is not maintainable because petitioner had earlier filed a revision and that revision application was dismissed and, therefore, this application under Section 482, Cr. P.C should not be entertained and the High Court will not embark upon a fresh enquiry. But in this connection 2000 (3) Pat LJR 199 may be referred, in which it has been held that though second revision before the High Court is barred under Section 397(3), Cr. P.C the inherent power under Section 482, Cr. P.C and power of continuous superintendence under Section 483 are still available and level of petition is immaterial and on a petition filed under Sections 397 and 401, Cr. P.C the inherent power of the High Court under Section 482. Cr. P.C does not stand repealed when the revisional power under Section 397, Cr. P.C overlapsed.
10. On careful consideration of discussions made above, it is clear that O.P No. 2 from the inception cannot be said to be legally married wife of the petitioner as her marriage with the petitioner has been annulled by a decree and therefore, she will not be entitled to maintenance. But so far as O.P No. 3, the child born from O.P No. 2. is concerned, his status becomes that of illegitimate child, though petitioner has made out a case that in a case under Section 498-A, O.P No. 2 had not mentioned about birth of a son.
11. But in the instant case, it appears that birth of a son has not been vehemently denied. So far as Section 125, Cr. P.C is concerned, a son whether legitimate or illegitimate will be entitled to maintenance and O.P No. 3 who is said to be born from O.P No. 2 by having sex relationship with the petitioner is entitled to maintenance @ Rs. 150/- Per Month as allowed by the learned Court below.
12. In that view of the matter, this revision is partly allowed and the order dated 15-9-1999 passed in Maintenance Case No, 25 of 1997 by which O.P No. 3 was allowed maintenance @ Rs. 150/- Per Month and the revision application arising out of impugned order 24-6-2002 is set aside to the extent that O.P No. 3 will go on receiving maintenance allowance as ordered by the learned Judicial Magistrate, 1st Class, Bermo at Tenughat in Maintenance Case No. 25 of 1997. There shall be no order as to costs.
13. Revision partly allowed.