IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.151 of 2007 NAGESHWAR RAI @ NAGESHWAR RAM Versus SMT.SUNAINA DEVI ----------- 4. 16.9.2008. This revision has been preferred against the order dated 15.12.2006 passed by Family Court, Biharsharif in Maintenance Case No.31(M) of 2001 thereby the petitioner has been directed to pay maintenance of Rs.500/- per month to the opposite party. Heard the learned counsel for both the parties. It appears that the opposite party in her petition as well as in her evidence has claimed that she married with the petitioner in the year 1968 from whom a daughter was born. On the other hand, the petitioner in his evidence not only denied the marriage with opposite party but has also asserted that he was married in the year 1962 with one Vidyapati Devi from whom three sons and one daughter were born. The learned lower court after consideration of evidence held that the marriage of the petitioner with the opposite party took place in the year 1968 but not - 2 - rejected the case of the petitioner regarding his first marriage in the year 1962 with Vidyapati Devi. Vide paragraph-7 of the order, he has held as follows : “ As per claim the petitioner got her marriage solemnized with the O.P. in the year 1968 on the day of Basant Panchmi but on the contrary I find that the O.P. remained married with Vidyapati Devi in the year 1962 as per evidence of O.P. therefore I may presume that the O.P. might have married subsequently the petitioner by defrauding her and declaring him to be bachelor.” The learned lower court in middle of paragraph-7 has further held as follows : “ This court has no concern much more as to whether the petitioner is the first or second wife of the opposite party. I have simply to see whether the petitioner is married wife of the opposite party or not.” The above finding of the learned lower court clearly goes to show that he was not aware of the law that the marriage solemnized with a person having spouse living is null and void ab initio in view of Section - 3 - 5(i) of the Hindu Marriage Act and, therefore, such wife is not entitled to get maintenance under section 125 of the Cr.P.C. (see 1988 Supreme Court 644). In the facts and circumstances and law, it was imperative for the lower court to effectively decide as to whether the petitioner at the time of marriage with opposite party in 1968 had any spouse living as asserted by him. If at the time of marriage with the opposite party, the plaintiff was already married and had spousing living in such situation the opposite party shall not get any maintenance as her marriage with the petitioner was void ab initio. However, it is made clear that the burden always lies upon the husband to prove his first marriage and that too legal. Mere keeping mistress does not debar the so-called 2nd wife from claiming maintenance (see 1991 (2)SCC 375). Accordingly, this application is allowed and the impugned order is hereby set aside. The matter is remanded back to the court below to decide the matter afresh in - 4 - N.H./ the light of observation made above. The matter must be decided within three months of receipt of this order. ( Ghanshyam Prasad )