IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 28TH JANUARY 2010 / 8TH MAGHA 1931 RPFC.No. 228 of 2007() ---------------------- MC.239/2003 OF FAMILY COURT, THRISSUR. .................... PETITIONER(S)/ PETITIONER: ------------------------------------ SULEKHA,AGED 47,W/O.KARUVAMPARA BHASAKRAN,WEST MANGAD VILLAGE & P.O, THALAPPILY TALUK. BY ADV. SRI.S.RAJEEV SRI.N.K.UNNIKRISHNAN RESPONDENT(S)/RESPONDENTS/STATE: -------------------------------------------- 1. BHASKARAN,AGED 62,S/O.KARUVAMPARA RAMAN,WEST MANGAD VILLAGE & P.O THALAPPALLY TALUK. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,KERALA. ADV. SRI.P.SANTHOSH (PODUVAL) FOR R1 SMT.R.RAJITHA FOR R1 R2 BY SR. GOVERNMENT PLEADER SRI. BENNY VARGHESE THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 28/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = R.P.(F.C.) NO. 228 OF 2007 = = = = = = = = = = = = = = = Dated this the 28th day of January, 2010. O R D E R This revision is preferred against the order of the Family Court, Thrissur in M.C.239/03. The petitioners therein claimed to be the wife and son of the counter petitioner moved an application for maintenance. The Family Court on an exhaustive consideration of the materials granted maintenance to the child at the rate of Rs.750/- per month and disallowed the prayer for maintenance to the wife. It is against the rejection of that prayer the wife has come up in revision before this Court. 2. The reason for rejection of maintenance to the wife is on the basis that the counter petitioner in the M.C. had married earlier and there was a subsisting marriage between her and the counter petitioner and therefore even if there is a marriage with the present revision petitioner she will not be entitled to maintenance u/s 125 Cr.P.C. R.P.(F.C.) NO. 228 OF 2007 -:2:- 3. The factual matrix is analyzed in paragraph 6 of the impugned order. It is seen that the counter petitioner therein had given evidence that he had married one Devaki earlier to the marriage between the petitioner and the respondent. The said Devaki filed M.C.50/79 before Judicial First Class Magistrate, Kunnamkulam and she has been awarded maintenance at the rate of Rs.200/- and two children were granted maintenance at the rate of Rs.150/-. By filing execution applications they had been receiving maintenance from the Court. It is also stated that the said Devaki filed a bigamy case which was a case registered as C.C.304/79 and in that case the counter petitioner contended that there was no valid marriage between the petitioner and the husband and on the basis of that he was acquitted of the charges. Therefore the Court below found that Devaki is the lawful wife of the respondent and he has two children born out of the wedlock. The marriage with respect to the present petitioner is only an agreement and I am not going further into that for the reason it is not necessary for the disposal of this case. The Hon'ble R.P.(F.C.) NO. 228 OF 2007 -:3:- Supreme Court in the decision reported in Savitaben Somabhai Bhatiya v. State of Gujarat (2005 (2) KLT 65 (SC) 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 S.125 of the Code or the Hindu Marriage Act, 1955. Marriage with person having living spouse is null and void and not voidable.” Parties being Hindus they cannot say that the second marriage is proper. So there is no personal law governing the same also. Even if the husband had treated her as a wife the Hon'ble Supreme Court in paragraph 16 of the said judgment has stated as follows. “But it does not further the case of the appellant in the instant case. Even if it is accepted as stated by learned counsel for the appellant that husband was treating her as his wife it is really inconsequential. It is the intention of the legislature which is relevant and not the attitude of the party.” R.P.(F.C.) NO. 228 OF 2007 -:4:- 4. So from the dictum laid down by the Hon'ble Supreme Court in the above mentioned decision and applying the dictum to the facts of the present case it is evident that the first marriage between the counter petitioner in the M.C. and Devaki is in subsistence and a marriage conducted by the said person with another lady is void in law and therefore she cannot be treated as a legally wedded wife for the purpose of claiming maintenance u/s 125 Cr.P.C. I do not find any error committed by the Family Court less any mis-appreciation of evidence which requires interference on the revisional jurisdiction. Therefore the revision fails and it is dismissed. 5. I make it clear that this judgment shall not stand in the way of any settlement if the parties want to do so. R.P.(F.C.) is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-