HON’BLE SRI JUSTICE B.SESHASAYANA REDDY CRIMINAL REVISION CASE No. 1788 of 2007 & CRIMINAL PETITION No. 675 of 2008 COMMON ORDER: These two criminal proceedings arise out of the order dated 03.02.2006 passed in M.C.1/2003 on the file of the I Addl. Munsif Magistrate’s Court, Tenali. 2. For the sake of convenience, the parties herein referred to as they are arrayed as in MC No. 1/2003. 3. The background facts in a nutshell leading to filing of the two proceedings are that the petitioner-Prabathuni Jhansi Rani filed a Maintenance Case being M.C. No. 1/2003 on the file of the I Addl. Munsif Magistrate’s Court, Tenali U/Sec. 125 Cr.P.C. claiming maintenance from the respondent-Prabathuni Rajendra Prasad. It is stated that the respondent - Prabathuni Rajendra Prasad, represented to the petitioner that his wife cheated him and that he had no peace and requested her to marry him or else he had no way except to die. Believing his words, she reciprocated by expressing her sympathy and decided to marry him and got married on 30-1-1994 at Marimatha, Gunadala, and thereafter, she came to know that he involved in a murder case of his former wife and ultimately the case ended in acquittal. Another women appeared claiming to be the 2nd wife of the respondent- Rajendra Prasad and implicated him in Cr.No. 6 of 1992 of Tenali I Town Police Station, Tenali registered for the offence punishable U/Sec. 379 IPC. The 2nd wife also lodged a complaint against him U/Sec. 498-A IPC in Repalle Police Station. It is further stated that the respondent and his family members beat her on 15.6.1992 for which she lodged a complaint and the police registered a case in Cr.No. 88 of 1992 for the offence punishable U/Secs. 323 and 354 IPC wherein she turned hostile and the case ended in acquittal. She lived happily with the respondent for three years. Thereafter, the respondent and his 2nd wife compromised the case and he put up her in a separate house in Chinaravuru. When, the respondent- Rajendra Prasad Started harassing the petitioner and tried to kill her with the instigation of his 2nd wife, she filed a complaint before the Sub Inspector of Police, I Town Police Station, Tenali, who in turn registered the same as a case in Cr.No. 22 of 1999 for the offence punishable U/Secs. 498-A and 494 IPC and after completing the investigation, the charge sheet came to be presented before the I Addl. Munsif Magistrate, Tenali and the learned Magistrate, took the charge sheet on file as C.C No. 81 of 1999 and after full fledged trial, the respondent herein came to be convicted for the offence U/Sec. 498-A IPC by Judgment dated 03.02.2006. The petitioner filed MC No. 1/2003 on the file of the I Addl. Munsif Magistrate’s Court, Tenali claiming maintenance from the respondent. The respondent filed a counter denying his marriage with the petitioner. He took the plea therein that the petitioner married one Mekathoti Dayaratnam and thereafter she filed MC No. 35 of 1989 on the file of the II Addl. Munsif Magistrate’s Court, Tenali, claiming maintenance from the said M.Dayaratnam and the said case ended in dismissal on 15.3.1992. He also took the plea that the marriage between the petitioner and Dayaratnam has been subsisting and their marital life is not snapped till this day. 4. To substantiate her case, the petitioner examined five witnesses on her behalf and the respondent got himself examined as RW-1 and marked certified copy of the order in MC No. 35 of 1989 as Ex-R1. The learned Magistrate on considering the evidence brought on record and on hearing the counsel appearing for the parties, came to the conclusion that the petitioner is the wife of the respondent and by order dated 03-02-2006 granted monthly maintenance of Rs.1,000/- to the petitioner from the date of the order. 5. Assailing the order passed in MC No. 1 of 2003, both the parties carried the matter before the XI Addl. District & Sessions Judge (FTC), Tenali. The petitioner filed Crl.R.P.No. 44 of 2006 and whereas the respondent filed Crl.R.P.No. 36 of 2006. The learned Addl.Sessions Judge after hearing both the parties passed separate orders allowing Crl.R.C.No. 36 of 2006 and dismissing Crl.R.P.No. 44 of 2006. Assailing the order of dismissal, the petitioner filed Crl.P. No. 675 of 2008 U/Sec. 482 Cr.P.C. and whereas the respondent filed Crl.R.C.No. 1788 of 2007. 6. Since both the proceedings originate out of the Maintenance Case filed by the petitioner-Jhansi Rani, these are heard together and are being disposed of by this common order. 7. Learned counsel appearing for the petitioner submitted that the respondent married the petitioner on 30-1-1994 in Marimatha, Gunadala and the same has been spoken to by P.Ws.2 and 4 and the fact of petitioner and respondent living together has been spoken by P.Ws.3 and 5 in which case the finding recorded by the revision Court that the marital relationship between the petitioner and respondent being wife and husband has not been established cannot be sustained. It is further submitted that their marriage certificate was filed CC No. 81 of 1999 and the same was accepted by the learned Magistrate, wherein the respondent herein was convicted and in which case it is impermissible for the respondent to dispute the marriage. 8. Learned counsel appearing for the respondent submitted that the petitioner got married to one Dayanratnam and thereupon the petitioner filed Mc No. 35 of 1989 claiming maintenance against him. He would also contend that the marital tie of the petitioner with the said Dayaratnam has been subsisting till today and therefore, there cannot be any legal marriage between them. 9. I have gone through the order passed by the trial court as well as the revision court. The respondent placed on record the certified coy of the order passed in MC No. 35 of 1989. 10. Indisputably the petitioner herein filed MC No. 35 of 1989 against Dayaratnam claiming maintenance and the said MC came to be dismissed on 15-3-1992. The petitioner has not stated as to when her marital tie with Dayaratnam came to be snapped. During the subsistence of her marriage with Dayaratnam, she cannot contact legal marriage with the respondent. The reivsional court has taken note of the proceedings in MC No. 35 of 1989 in recording the finding that there cannot be any legal marriage between the petitioner and the respondent so long as the marital tie of her with Dayaratnam subsists. 11. I deem it appropriate to refer to the relevant portion of the order passed by the revisional court in Crl.R.P.No. 36 of 2006 and it is thus: “18. The counsel also relied upon the decision in Katari Subba Rao Vs. Katari Seetha Mahalakshmi (1994 Criminal Law Summary page 10) and contended that the marriage of petitioner with Dayarathnam is void as she was minor. In this case, in cross- examination of petitioner attention was brought to the fact that she was already married. At that stage, she stated that marriage took place when she was minor. In fact, there is no positive evidence of the fact that the marriage took place while she was age of 12 years. As could be seen from Section 5 of Hindu Marriage Act bridegroom should have completed 21 years and bride should have completed 18 years. S.11 declares what are the marriages, which are valid. It is stated that any marriage solemnized after commencement of this Act shall be null and void, if there is contravention of any of the conditions specified in the clauses (i), (iv) and (v) of Sec. 5. Now it will be worthwhile to look to clause iv sub Section 2 of Section 13 of Hindu Marriage Act wherein it is stated that a wife can file a petition for divorce if the marriage took place before she attained the age of 15 and she has reputed the marriage after attaining the age; but before attaining age 18 years. In fact this provision also requires to be amended to bring it within the purview of sub clause iii of the section 5. But, it is suffice to say that the wife being minor by itself did not make the marriage void under Section 11 but is voidable, on that ground she can seek for divorce. Above top of it, what was the age of the petitioner, at the time of said marriage and whether she was in fact a minor also must be seen. In the petition filed in 2003 petitioner described herself as aged 30 years as per the proceedings in MC 35/89, she claimed that her marriage took place with Dayaratnam. This MC was filed in the year 1989 and was disposed of in the year 1992; but admittedly till today she has not sought for the repudiation of the marriage. She prosecuted the petition against the original husband. Now having prosecuted the same till 1992 claiming to be the wife of the said Dayaratnam now she cannot turn round and say that the marriage is void. In the decision in Venkataraman Vs. State AIR 1977 page 43 it was observed that omission of Clause (iii) under Section 5, as one of the grounds was deliberate one. Hence, even though, the parties have not attained the age as stipulated under Sec. 5(iii) it is not void marriage as per Sec. 11 of the Act. Now as already extracted above, the petitioner should have approached to declare the said marriage void. On other hand continued to claim maintenance.” 12. The evidence brought on record clearly establishes that the petitioner herein prosecuted maintenance case against Dayaratnam till the year 1992. It indicates that she did not take any steps to get her marriage dissolved with him. So long as her marriage with the said Dayaratnam subsists, she cannot enter into another marriage with the respondent herein. The revisional court allowed the revision filed by the respondent herein by giving cogent and convincing reasons. Hence, I do not see any valid grounds to interfere with the order passed by the learned Addl. Sessions Judge in Crl.R.P.No. 36 of 2006. 13. Accordingly, both the Criminal Petition and the Criminal Revision Case are dismissed. ___________ 29-07-2010 Mjl/*