1. By this appeal the appellant has challenged legality and propriety of the order and decree dated 28-7-2004 passed by the Additional District Judge, Janjgir in Misc. Case No. 17/2001, whereby learned Additional District Judge has awarded maintenance of Rs.1,000/- per month to the respondent under Section 18 of the Hindu Adoption and Maintenance Act, 1956 (for short the Act, 1956).

2. The order is challenged on the ground that the respondent who is second wife of the appellant is not entitled for maintenance under the provisions of the Act, 1956 and the Court below has committed illegality by awarding maintenance to her.

3. I have heard learned counsel for the parties and perused the order and decree impugned as also the record of the Court below.

4. Mr. Malay Kumar Bhaduri, learned counsel for the appellant, argued that respondent Bhagwantin Bai was previously married to one Keshav Sahu and the appellant was also married to Kaushilya, and during the subsistence of first marriage of the appellant and the respondent, they again solemnized marriage. Both the parties are governed by Hindu Law, as such the Hindu Marriage Act, 1955 (for short the Act, 1955). Second marriage during the subsistence of first marriage is bar under Section 5 (i) of the Act, 1955. The words Hindu wife used in Section 18 of the Act, 1956 include only lawful wife and any woman who married with another person during the subsistence of her previous marriage is not entitled for maintenance under the provisions of Section 18 of the Act, 1956. Learned counsel submits that respondent Bhagwantin Bai has specifically deposed and proved in her evidence the documents Exs.A-1, A-2, A-3 and A-4. Ex.A-1 is an agreement/consent letter executed by the present appellant in favour of the respondent which shows that at the time of such consent or alleged marriage with the respondent he was having one spouse and he has accepted the respondent as wife. Ex.A-2 is an affidavit executed by respondent Bhagwantin Bai which shows that her first husband is alive though he has left her and she has solemnized marriage with the appellant with the consent of the first wife of the appellant. Ex.A-3 is an agreement/consent letter executed by the respondent in favour of the appellant which shows that firstly she was married with another person who left her and she has solemnized marriage with the appellant with the consent of the first wife of the appellant. Ex.A-4 is an affidavit executed by the appellant which shows that the appellant has solemnized marriage with the respondent during the subsistence of his first marriage with another woman with her consent. Learned counsel further submits that the appellant has mentioned the name of his wife Kaushilya in ration card Ex.D-1, Free Medical Treatment Entitlement Cards Exs.D-2, D-3, Medical Attendance Identity Card and Ex.D-4 Insurance Policy paper. These documents are sufficient for drawing inference that Kaushilya is wife of the appellant. Learned counsel also submits that respondent Bhagwantin Bai has admitted in para 6 of her evidence that Keshav Sahu left her, but he has not divorced her, however, customary divorce has been effected without any written document. She has specifically admitted that when she was unmarried she was sent by the members of her community with Keshav Sahu whereupon she left with Keshav Sahu, she conceived and gave birth to one daughter Mamta. Learned counsel placed reliance in the matter of Abbayolla M. Subba Reddy v. Padmamma. AIR 1999 Andhra Pradesh 19 (FB) in which Full Bench of the Andhra Pradesh High Court held that Hindu woman married with Hindu male having legally wedded wife is not entitled to maintenance under Section 18 of the Act, 1956.

Further reliance has been placed in the matter of Suresh Khullar v. Vijay Khullar, AIR 2002 Delhi 373 in which the Delhi High Court has held that marriage solemnized during subsistence of first marriage is hit by Section 5 of the Act, 1955. Reliance has also been placed in the matter of Smt. Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and another, AIR 1988 SC 644 in which the Apex Court has held that marriage by Hindu with person having living spouse is null and void.

5. On the other hand, Mr. H.B. Agrawal, learned Senior Advocate appearing on behalf of the respondent argued that although the respondent was living with one Keshav Sahu, but there were only love affairs with Keshav Sahu and she has not married Keshav Sahu. She has solemnized marriage only with the present appellant. She has not solemnized marriage with the appellant during the subsistence of marriage of herself or marriage of the appellant. Therefore, the respondent is entitled for maintenance under Section 18 of the Act, 1956.

6. Section 18 of the Act, 1956 reads as follows:-

"18. Maintenance of wife.- (1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime.

(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance-

(a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or wilfully neglecting her;

(b) if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband;

(c) if he is suffering from a virulent form of leprosy;

(d) if he has any other wife living;

(e) if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere;

(f) if he has ceased to be a Hindu by conversion to another religion;

(g) if there is any other cause justifying living separately.

(3) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion."

7. Section 5 of the Act, 1955 deals with conditions for a Hindu marriage. Section 5 (i) reads as follows:-

"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;"

Section 11 of the Act, 1955 deals with void marriages, which reads as follows :-

"Any marriage solemnized 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."

8. Any Hindu marriage may dissolve by a decree of divorce in accordance with Section 13 of the Act, 1955 and there is no other form of divorce in the Act, 1955. Section 29 of the Act, 1955 reads as follows:-

"29. Savings.- (1) A marriage solemnized between Hindus before the commencement of this Act, which is otherwise valid, shall not be deemed to be invalid or ever to have been invalid by reason only of the fact that the parties thereto belonged to the same gotra or pravara or belonged to different religions, castes or sub-divisions of the same caste.

(2) Nothing contained in this Act shall be deemed to affect any right recognized by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the commencement of this Act.

(3) Nothing contained in this Act shall affect any proceeding under any law for the time being in force for declaring any marriage to be null and void or for annulling or dissolving any marriage or for judicial separation pending at the commencement of this Act, and any such proceeding may be continued and determined as if this Act had not been passed.

(4) Nothing contained in this Act shall be deemed to affect the provisions contained in the Special Marriage Act, 1954 (43 of 1954) with respect to marriages between Hindus solemnized under that Act, whether before or after the commencement of this Act."

In accordance with Section 29 (2) of the Act, 1955, Hindu marriage may come to an end by dissolution by a recognized custom.

9. In the instant case, the appellant and other witnesses including Kaushalya Devi Satnami (NAW-2) have categorically stated that Kaushilya is wife of the appellant, she is alive and during the subsistence of her marriage, the respondent has claimed that she has married the appellant and she has claimed for maintenance. Respondent Bhagwantin Bai has not admitted in specific terms that she had earlier married with Keshav Sahu, but in her cross-examination she has admitted that she was living with Keshav Sahu, she conceived through Keshav Sahu and gave birth to Mamta, Keshav Sahu has not divorced her, however, customary divorce has been effected. She has proved and admitted the documents Ikrarnama/consent and affidavits executed by the respondent. Exs.A-1 to A-4 clearly show that both the parties were having spouses at the time of alleged marriage and with the consent of first wife of the appellant the respondent has married the appellant. These documents and the statements of the witnesses are sufficient to establish the fact that at the time of alleged marriage of the respondent with the appellant, both the parties i.e. the appellant and the respondent were having spouses and their marriage was not dissolved by a decree of divorce or by any recognized custom and during the subsistence of their marriage they have married with each other. Such marriage is in violation of Section 5 (i) of the Act, 1955 and such marriage is a void marriage under Section 11 of the Act, 1955. Therefore, the respondent is not the legally wedded wife or lawful wife of the appellant. Only the lawful wife or legally wedded wife is entitled for maintenance under Section 18 of the Act, 1956. The Court below after placing reliance in the matters of Rajaram v. Roopabai, 1986 (1) MPWN 92 and C. Obula Konda Reddy v. C. Pedda Venkata Lakshamma, AIR 1976 AP 43 arrived at a conclusion that even woman of void marriage is entitled for maintenance. Judgment passed in the case of Rajaram v. Roopabai and C. Obula Konda Reddy (supra) has been overruled by the larger Bench of A.P. High Court in the case of Abbayolla (supra). The words Hindu wife used in Section 18 of theonly include lawful wife or legally wedded wife and does not include any wife of second marriage during subsistence of her first marriage. The learned Court below has committed illegality. The Act, 1955 applies to all Hindu marriages. Finding of the Court below is not sustainable and deserves to be set aside.

10. Consequently, the appeal is allowed. Order and decree impugned are hereby set aside. Claim and order of maintenance of the respondent is hereby dismissed. Parties shall bear their costs of appeal and as well as the proceedings before the Court below.

Appeal allowed.