Mathura Rai vs Mt. Marachoo Kuer

Meredith, J.—This matter has been referred to a Division Bench by a learned Judge of this Court on the ground that there is no direct decision of a Division Bench of this Court on the question raised. The question raised concerns the interpretation of Section 488, Criminal P.C. Sub-section (1) of this Section is as follows:

If any person having sufficient means neglects, or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or a Magistrate of the First Class may, upon proof of such neglect or refusal, older such person to make a monthly allowance for the maintenance of his wife or such child, at such monthly rate, not exceeding one hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.

The petitioner, has been ordered to maintain a child whom the Magistrate has held to be his illegitimate child, though the petitioner himself denies the relationship. Mr. Ganesh Sharma argues that once the relationship of marriage or paternity, as the case may be, is denied, Section 488 ceases to have application, the Magistrate has no jurisdiction, and the parties must be referred to a civil Court. In other words, he argues that the issue of relationship cannot be raised before the Magistrate.

In the first place, such an interpretation would make the provisions of the Section a complete nullity. The defence would be taken in every case that the woman was not the man''s wife if asked to maintain his wife or the child was not his if asked to maintain his illegitimate child. This could hardly have been the intention of the Legislature.

In the second place, for many many years the Courts have been accustomed to allow the question of relationship to be put in issue,; and women have been allowed to prove the paternity of their children when it has been denied. In the circumstances it is too late now to argue that on the strict wording of the Section such an issue cannot be raised. If a direct decision of a Bench of this Court, cannot be found specifically deciding the point, there are at least numberless decisions-where the question has been allowed to be put in issue, and the point has never been raised.

To cite some of these cases, we find, going back to 1889, that in Arunachella Pillai v. Kamala Bai (89) 2 Weir 621 the Magistrate was criticised for not having: given a distinct finding whether the alleged father of the children was in fact their father, and it was pointed out that where the question of paternity is put in issue the general rule is that the woman must be supported in some material particular, and the'' Magistrate must find that in all reasonable-probability no one else than the opposite party could have been the father.

In Mt. Kailasa v. Raghubar AIR 1914 Oudh 374 the Court held that the fact that the Magistrate holding paternity proved made an order for maintenance would not bar a subsequent suit in which the plaintiff based his cause of action upon that order, for a declaration that the defendant was not his son.

In Hira Lal v. Saheb Jan (96) 18 All. 107 it was held that a. person against, whom an order for maintenance u/s 488, Criminal P.C., is sought is a competent, witness on his own behalf on the point of relationship. The learned Chief Justice ob. served:

A woman may be of bad character and yet be entitled to an order for maintenance of her illegitimate child if she proves that the man against, whom she proceeds was the father of the child.

In other words, the question of paternity could be put in issue in the proceedings.

In Rev. C.R. Vedantachari Vs. Marie, it was laid down that in a case u/s 488 where the question at issue is, whether a certain man was the father of a certain child, it is prima facie improper to accept without corroboration the mere statement on oath of the mother who asserts the paternity. Here again the question was allowed to be put in issue.

In Mt. Hidayat Khatoon v. Mahomed Hayat (1913) 6 SLR 208 it was laid down that when the opponent has denied the paternity of a child that is a fact from which the Court may infer neglect to maintain.

In Mt. Mangli v. Ganda Singh AIR 1932 Lah. 301 the Court held that where on an application made by the wife for maintenance the husband denies the validity of the marriage it is for the Magistrate to decide such a question in his own Court.

In Mt. Ganga Devi v. Ram Sarup AIR 1939 Lah. 24 the case was sent back to the Magistrate by the High Court for decision of the very issue of relationship as the issue had been raised and the Magistrate had not decided it.

It is needless to go on citing cases. If the contention now put forward were correct, all these cases would have been shortly and Summarily disposed of on the ground that the criminal Court had no jurisdiction. In point of fact the scope of Section 488 has been settled by this long course of decisions extending over a great number of years, and it is too late now to ask for an interpretation which, as I have already said, would practically render the Section a nullity.

The application fails and must be dismissed.

Imam, J.

I agree.