D. Velusamy v. D. Patchaiammal : 2010 (10) SCC 469 : AIR 2011 SC 479: 2011 Cri.L.J. 320 : 2010 (11) SCALE 112 : 2010 (11) JT 325 : (2011) 1
Section 125---Maintenance---Claim of respondent being wife of applleant -----Appellant alleged to desert respondent two or three years after marrying her whereas appellant claimed to be already married with another women----Courts below held appellant married to respondent and not to another women-----Since another women was not made a party to proceedings before Family Court or before High Court and no notice was issued to her hence any declaration about her maritial status vis-a-vis appellant is wholly null and void as it will be violative of rules of natural justice---Courts below erred in holding that another women was not married to appellant since notice was not issued to her and she was not heard---Respondent cannot claim to be wife of appellant unless it is established that appellant was not married to another women---Impugned orders set aside and matter remitted back to Family Court for consideration afresh in accordance with law.
Held : The learned Family Court Judge has held by his judgment dated 5.3.2004 that the appellant was married to the respondent and not to Lakshmi. These findings have been upheld by the High Court in the impugned judgment.
Since Lakshmi was not made a party to the proceedings before the Family Court Judge or before the High Court and no notice was issued to her hence any declaration about her marital status vis-`- vis the appellant is wholly null and void as it will be violative of the rules of natural justice. Without giving a hearing to Lakshmi no such declaration could have validly be given by the Courts below that she had not married the appellant herein since such as a finding would seriously affect her rights. And if no such declaration could have been given obviously no declaration could validly have been given that the appellant was validly married to the respondent, because if Lakshmi was the wife of the appellant then without divorcing her the appellant could not have validly married the respondent.
Since the Courts below erred in law in holding that Lakshmi was not married to the appellant (since notice was not issued to her and she was not heard), it cannot be said at this stage that the respondent herein is the wife of the appellant. A divorced wife is treated as a wife for the purpose of Section 125 Cr.P.C. but if a person has not even been married obviously that person could not be divorced. Hence the respondent herein cannot claim to be the wife of the appellant herein, unless it is established that the appellant was not married to Lakshmi.