Krishan Kaur vs Kartar Singh

S.M. Rizvi, J.—This criminal reference has been made by the learned Sessions Judge, Bhadarwah recommending that the order of the

learned Judicial Magistrate, Krishtwar dt, 12-9-1983 may be quashed.

The facts giving rise to this reference may be briefly stated as under:

The petitioner Krishen Kaur filed an application before the learned Judicial Magistrate, Krishtwar u/s 488, Cr.P.C. stating therein that, the

respondent Kartar Singh was her husband, and three children were born to them out of their wedlock. She lived with him for about 10/12 years

and thereafter, he deserted her along with her children. She therefore prayed that, the respondent may be ordered to pay maintenance allowance

to her along with her children.

The respondent in the objections denied the matrimonial relationship with the petitioner, and thereby, disowned the children as well. The learned

Magistrate inquired into the matter, and came to the conclusion, that the existence of marriage was not established, which according to him can be

decided only by a civil court. He therefore dismissed the petitioner's application.

The petitioner filed a revision against the order of the learned Magistrate in the Court of the learned Sessions Judge, Bhaderwah. After hearing

the parties, the learned Sessions Judge came to the conclusion, that the learned Magistrate has committed an error in passing the impugned order.

He has therefore recommended, that the said order may be quashed, and the respondent directed to pay the monthly maintenance allowance to the

petitioners, at the rate indicated by him in his order. Hence the reference.

I have heard the learned Counsel for the parties, and have also gone through the file.

The learned Counsel for the petitioner has supported the reference, and has argued that the learned Inquiry Magistrate has committed a serious

error in holding, that the marriage was not established between the parties. According to him, there was abundant evidence on the file to prove,

that the parties lived as husband and wife, and three children were born to them out of their matrimonial relationship.

The learned Counsel for the respondent has opposed the reference, and has argued that the learned Sessions Judge has usurped the powers of

an Appellate Court in deciding a revision. According to him, the learned Sessions Judge could not go into the appreciation of evidence, which was

beyond his jurisdiction, as a revisional court. He has further argued, that the petitioner has failed to prove that she was married to the respondent,

or that the children were born to her from him, and therefore she was not entitled to any maintenance allowance from the respondent.

As regards the first contention of Mr. Goni that the Sessions Judge has no jurisdiction to go into the appreciation of evidence, it appears without

any force. The Revisional court has power to call for and examine the records of an inferior Court for the purpose of satisfying itself, as to the

correctness, legality or propriety of any proceedings, or order made therein. Unless, it looks into the evidence, how can the revisional court return

a finding as to correctness, legality or propriety of an order or proceeding. If a patently erroneous and perverse order is passed by a trial court,

and appeal is provided for against such order or finding, it becomes the bounden duty of the revisional Court to go into its correctness, legality or

otherwise, and do away with injustice, if any, having occasioned thereby. The power to interfere is discretionary and unfettered by limitations.

As regards his second contention that the existence of marriage has not been established by the evidence produced by the petitioner, and

therefore neither the petitioner-wife, and nor her children are entitled to any maintenance allowance, it may suffice to say, that the standard of proof

marriage for the purposes of Section 488 Cr.P.C. need not be so high as in a proceeding under the Divorce Act or Sections 494, 495, 497 or 498

RPC. when marriage is established, maintenance should be awarded; if the legal validity of marriage is questioned it ought to be raised in a Civil

Suit, It would be giving a long rope to unscrupulous husbands to require the wives to first establish the existence of marriage in a Civil Court, and

then go for proceedings u/s 488, Cr.P.C. Where marriage is disputed, the Court can and should decided the question without leaving the woman

to establish her status in a Civil Court.

In the present case, the learned magistrate appears to have adopted a novel procedure of asking the petitioner to establish her marriage in a

Civil Court, so as to entitle her to maintenance allowance, from the respondent. He has lost sight of the fact, that Section 488 despite means,

neglects or refuses to maintain his wife or child (legitimate or illegitmate). It is a distinct right, independent of the right which the wife or child may or

may not have under the Personal Law. It overrides the Personal Law, if it is in conflict with it. The object of the section is to prevent destitution on

public grounds, and vargrancy. This section provides only a speedy remedy against starvation of a deserted wife or child. It is a summary

procedure, which does cover entirely the same ground as the civil liability of a husband, or father under his personal Law to maintain his wife or

child. The learned Sessions Judge has thoroughly gone into the question of correctness or otherwise of the finding returned by the Inquiring

Magistrate, and has rightly made the reference, for setting aside the same. From the examination of record, it is not difficult to come to the

conclusion about the perversity of the order passed by the learned Magistrate. There is enough material on the file to show, that the petitioner and

the respondent have lived as wife and husband, and out of their matrimonial union, three children were born to them. The respondent cannot be

allowed to desert his wife and children, by his mere denial of having any relationship with them. He is a Government servant, and is having sufficient

means to maintain his wife and children.

In these circumstances of the case, the reference made by the learned Sessions Judge is accepted, and the order impugned passed by the

learned Magistrate, hereby set aside. The petitioners are entitled to the monthly maintenance allowance as determined by the learned Sessions

Judge in his order of reference, from the date of the application. The record shall be sent back to the learned Sub-Judge/Judicial Magistrate 1st.

Class, Kishtwar for enforcing the order in accordance with law. The revision file be remitted to the Court of Sessions Judge, Bhadarwah, and the

reference file consigned to records.