Madhya Pradesh High Court
Jitendra vs Smt. Sita on 19 November, 2025
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE ALOK AWASTHI
MISC. PETITION No. 3812 of 2025
JITENDRA
Versus
SMT. SITA
Appearance:
Shri Dinesh Singh Chouhan - Advocate for the petitioner.
Shri Tulsi Ram Raghuwanshi, learned counsel for the respondent.
Heard on : 10.10.2025
Pronounced on : 19.11.2025
ORDER
This miscellaneous petition has been filed by the petitioner under
Article 227 of the Constitution of India being aggrieved by the order dated
28.06.2025, passed in HMA No.1781/2015 by learned Additional Principal
Judge, Family Court, District-Indore whereby the learned Family Court has
allowed the application of respondent filed under Section 24 of Hindu
Marriage Act, 1955 (hereinafter referred to as "HMA, 1955") and awarded
maintenance in favour of respondent/wife to the tune of Rs. 5,000/- as
monthly maintenance from the date of filing of application, Rs. 10,000/- as
suit/case expenses and Rs.500/- on each hearing for appearance of
respondent.
2. The facts in brief are that, the petitioner filed a case under Section
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5 and 11 of HMA, 1955 for declaration of Void Marriage before Principal
Family Court Judge Indore District-Indore in the year 2022. Notice was
issued to the respondent and respondent filed her reply before the Court in
the year 2023. Learned Family Court framed the issues for determination. In
between respondent filed an application under Section 24 of HMA, 1955, but
she has not disclosed the actual facts that the respondent herself filed an
application under Section 9 HMA before Family Court Tikamgarh Bearing
No. RCSHM /137/2022 which was dismissed on 31.07.2024.
3. Further, similarly respondent did not mention in her application
under Section 24 of HMA, 1955 that she has filed Section 125 of Code of
Criminal Procedure, 1973 for grant of maintenance, which was also decided
by the Court after completing all Evidences and proper adjudication of the
case MICR 340/2022 Sita Yadav vs. Jitendra Yadav. Respondent knowingly
and willingly suppressed the actual facts of the case and not disclosed the
two cases decided against her and not accepted her wife of Petitioner.
4. Learned counsel for the petitioner has contended that the learned
trial Court has failed to consider the aspect that in the orders passed in MJCR
No. 340/2022 and RCSHM No. 137/2022, the Court did not accept the
respondent as wife of petitioner. The petitioner filed the case in the year 2022
and still waiting for his cross-examination. Counsel for the respondent
always seeking time on each date for cross examination. He has also
contended that in para 61 of MJCR 340/2022, Learned Judge has given his
findings that after considering the evidences that the petitioner/respondent
Sita Yadav is not legally wedded wife of Jitendra Yadav/respondent.
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Therefore, learned counsel has prayed to set aside the impugned order and
petition may kindly be allowed.
5. On the contrary, learned counsel for the respondent submitted that
the learned Family Court, after considering all legal and factual matrix of the
case allowed the application of respondent. Hence, the present petition is
liable to be set aside.
6. In view of the rival submissions, I have gone through the record.
Now, the crux of the case is as to whether respondent is entitled to get
maintenance from her second husband /petitioner.
7. At this juncture, the relevant part of Section 125 of Cr.P.C is
worth referring here under:-
125. Order for maintenance of wives, children
and parents.
(1) If any person having sufficient means neglects
or refuses to maintain:-
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child,
whether married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a
married daughter) who has attained majority, where
such child is, by reason of any physical or mental
abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain
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himself or herself,
8. Section 24 of HMA, 1955 is also important to quote here as
under:-
24. Maintenance pendente lite and expenses of
proceedings.-
"Where in any proceeding under this Act it
appears to the court that either the wife or the husband,
as the case may be, has no independent income
sufficient for her or his support and the necessary
expenses of the proceeding, it may, on the application
of the wife or the husband, order the respondent to pay
to the petitioner the expenses of the proceeding, and
monthly during the proceeding such sum as, having
regard to the petitioner's own income and the income of
the respondent, it may seem to the court to be
reasonable:Provided that the application for the
payment of the expenses of the proceeding and such
monthly sum during the proceeding, shall, as far as
possible, be disposed of within sixty days from the date
of service of notice on the wife or the husband, as the
case may be."
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9. It is unfolded from the aforesaid provision that an illegitimate
child is entitled to get maintenance but an illegitimate wife is not entitled to
get maintenance. The intention of legislature is obvious that maintenance can
only be granted in favour of legally wedded wife. Now, the question is
required to be answered as to whether respondent/Sita Yadav is legitimate
wife of petitioner/Jitendra Yadav.
10. On this aspect, the relevant part of Sections 5 & 11 of Hindu
Marriage Act is relevant to quote here :-
Section 5 : Conditions for a Hindu marriage.
A marriage may be solemnized 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 2 ***];
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(iii) the bridegroom has completed the age of
3[twenty-one years] and the bride, the age of 4[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 of each other,
unless the custom or usage governing each of them
permits of a marriage between the two;
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.
11. Having considered the aforesaid provisions, it is crystal clear that
the condition mentioned in Sub Section I of Section 5 pertaining to living
spouse at the time of the another marriage, has not been mentioned in
Section 11. In the present case, respondent has not taken decree of divorce in
accordance with law from her first husband. The respondent had kept the
petitioner in dark about her first marriage. In such circumstances, can the
respondent be allowed to take advantage of her own wrong and turn around
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to say that respondent is entitled to maintenance by filing the petition under
Section 24 of HMA, 1955 as respondent is not "legally wedded wife" of the
petitioner? The answer is in the negative. At least for awarding maintenance,
the respondent should hold the same status as the petitioner's wife. A woman
married a man with full knowledge of the first subsisting marriage, cannot be
awarded any maintenance from her second husband. In such cases, she
should know that second marriage with such a person is impermissible and
there is an embargo under the Hindu Marriage Act and therefore she has to
suffer the consequences thereof.
12. Now, another question for determination is that whether the
respondent has taken divorce from her first husband in accordance with law.
On this aspect, in para 15 and 16 of the judgment dated 31.07.2024 passed
in RCSHM No. 137/2022, respondent herself conceded that she has married
with Deepak Yadav according to Hindu Rituals and Deepak Yadav is alive.
She further admitted that she has not any divorce decree from the Court with
regard to her first husband Deepak Yadav. When a marriage has been
consummated by the custom of Hindu Saptpadi, then it cannot be divorced
by an agreement on an E-stamp of Rs.1,000/-.
13. At this juncture, the observation of this Court in the case of Smt.
Sangeeta Rathore Vs. Naresh Rathore, 2023 Lawsuit MP 470, is worth to
refer here as under :-
"10. In view of aforesaid settled propositions
and provisions of law it is crystal clear that
the wife should be a "legally wedded wife"
for claiming maintenance from her husband.
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A woman, having solemnized second
marriage to another person is only entitled to
get maintenance from that person, when the
first marriage has been declared either null
and void or she has obtained a divorce decree
from her first husband. Since in the case at
hand, as the petitioner could not get divorce
from her earlier husband, she would not be
entitled to get maintenance from her second
husband/petitioner."
14. Considering the argument advanced by the party as well as
evidence available on record, it is found that the respondent is not a legally
wedded wife of the petitioner, therefore, she is not entitled for the claim of
maintenance.
15. In view of aforesaid settled propositions and provisions of law it
is crystal clear that the wife should be a "legally wedded wife" for claiming
maintenance from her husband. A woman, entitlement of maintenance from
a second spouse is contingent upon the first marriage being legally
invalidated or declared null and void or she has obtained a divorce decree
from her first husband. In the case at hand, as the respondent could not get
divorce from her earlier husband/Deepak Yadav, she would not be entitled to
get maintenance from her second husband/petitioner.
16. So far as the amount of Rs. 500/- awarded under the head of
transport on personal appearance before the Court on each date of hearing is
concerned, it would be appropriate to modify the said order, as other
expenses like stay charges, advocate's fees, etc., will be considered included
in this amount. Hence, the order of the trial Court directing the husband to
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pay a sum of Rs.5,000/- as monthly maintenance and Rs.10,000/- with regard
to suit expenses, is hereby quashed.
17. In result thereof, the impugned order of learned Family Court
allowing the maintenance of respondent/wife is suffering from any infirmity
and illegality.
18. Accordingly, the present petition is hereby allowed and
impugned order dated 28.06.2025 passed by learned Additional Judge,
Family Court, Indore in HMA No. 1781/2022 is set aside as indicated
hereinabove.
19. Pending, I.A(s)., if any, stand(s) closed.
Certified copy, as per rules.
(ALOK AWASTHI)
JUDGE
Vindesh
