Relying on Chanmuniya case, Single-judge bench of AP High Court held that, in case of nullity of marriage under Section 11 or 12 of HMA, 125 CrPC cannot be invoked by knife.
Citations : [2020 ALT CRI 2 227], [2020 ALT 4 329]
Other Sources:
https://www.casemine.com/judgement/in/5f4398cd4653d009c1ff7665
https://www.legitquest.com/case/palla-shanthi-kiran-v-the-state-of-ap-and-ors/1C400E
The Lower Family Court dismissal order is here:
This Allahabad High Court judgment also clarifies established below legal point in Maintenance case under section 125 of CrPC. It relies on Deoki here.
In the absence of any custom and in absence of any decree for divorce, it cannot be said that marriage between Alok Berman and Smt. Rani was dissolved, which goes to show that Alok Berman was still legally married husband of Smt. Rani, who was, admittedly, alive at the time of marriage of Smt. Kiran Dhar with Alok Berman, and the marriage between them was not annulled as per law.
Further,
26. Section 13 of Hindu Marriage Act clearly requires a petition either by the husband or the wife for dissolving the marriage by decree or divorce on the ground mentioned in Section 13 of Hindu Marriage Act. No other form of divorce has been recognized by Hindu Marriage Act. Annexure 5 is an agreement between Alok Berman and his earlier wife – Smt. Rani in which parties had signed a divorced deed in which they have stated that they are dissolving the marriage by this deed on the conditions mentioned in the deed. Condition no.6 is also very relevant in which she has stated that if either of the parties filed a divorce case in the Court, then another party will give consent to the divorce without making any objection.
27. It is not on record as to whether any suit for divorce was filed by Smt. Rani or not. In absence of any document and decree of divorce by the court, it can safely be presumed that no such application was moved by either of parties before the competent court for dissolution of marriage. In view of this, the only evidence of divorce is the document Annexure 5. This document has not seen the light of day during any divorce proceeding. Hindu Marriage Act does not recognize any divorce of such type. It has also not been averred and proved that there was such custom in the society of parties to recognize such type of divorce.
28. In the absence of any custom and in absence of any decree for divorce, it cannot be said that marriage between Alok Berman and Smt. Rani was dissolved, which goes to show that Alok Berman was still legally married husband of Smt. Rani, who was, admittedly, alive at the time of marriage of Smt. Kiran Dhar with Alok Berman, and the marriage between them was not annulled as per law.
29. In view of Sections 5 (1) and 11 of Hindu Marriage Act and also in view of decision of Apex Court in Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and another (supra) the marriage between Smt. Kiran Dhar and Alok Berman is void ab initio, and she is not entitled to maintenance.
30. It is also clear from the decision of Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and another (supra) that even if the second wife (Smt. Kiran Dhar) was not aware of first marriage of her husband with another woman, she is not entitled to any maintenance.
Citations: [2015 DMC ALL 2 357], [2014 ALLCC 86 807], [2015 ACR 1 945], [2014 ALR 106 405], [2015 CRIMES ALL 1 607], [2014 SCC ONLINE ALL 15005], [2015 ALL LJ 1 391], [2014 AIC 142 877], [2015 HLR 2 522]
Other Sources:
https://indiankanoon.org/doc/187951850/
https://www.casemine.com/judgement/in/56b492ff607dba348f003b0a
https://www.courtkutchehry.com/Judgement/Search/AdvancedV2?docid=158933
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