Smt. Kanta Devi vs Maan Singh

G.D. Sharma, J.—This revision petition is directed against the order dated 31-1-1996 passed in revision by the learned Sessions Judge,

Jammu against the order dated 6-8-1994 of Munsiff, Judicial Magistrate 1st Class, Jammu whereby the petition of the petitioner herein made u/s

488, Cr. P.C. for the grant of maintenance allowance was dismissed. The Magistrate had at the first instance dismissed the petition and then in

revision, the order was upheld. It has been contended that both the Courts below have fallen into error in appreciating the legal position with

regard to the grant of maintenance allowance because the law favours that in case the parties had lived as husband and wife for a long time then the

neglected wife by the husband is entitled to the maintenance because long cohabitation gives a presumption of marriage.

Heard the arguments.

The counsel appearing for the petitioner herein has contended that when an attempt is made by the delinquent husband to negative the claim of

the neglected wife deprecating her as a mistress on the specious plea that he was already married, then the Court should insist on getting strict

proof of the earlier marriage and in this case no proof of the existence of first valid marriage was called. Both the Courts below have refused the

claim of the petitioner on the sole ground that when she was married with the respondent (on 27-4-1957) the latter had already a living spouse,

namely, Smt. Sunaina and that the marriage was ipso facto void because the J & K Hindu Marriage Act had come into force in the year 1955. The

law laid down by the Apex Court in the case of Yamunabai Anantrao Adhav Vs. Anantrao Shivram Adhav and Another, was held applicable to

the facts of the case and the petitioner herein was found not entitled to any claim of maintenance. In appeal the finding of the trial Court was upheld

and it was reiterated that the marriage of the petitioner was void ipso jure and had to be ignored as not existing in law. The learned counsel

appearing for the respondent has mainly relied upon the law laid down in the above stated case, whereas the counsel appearing for the petitioner is

basing the claim of the petitioner on the law laid down by the Apex Court in the case of K. Bimla v. Veera Swami 1993 MLR 88. The counsel has

contended that respondent was required under law to satisfactorily prove the subsistence of a legal and valid earlier marriage and only then the

claim of the petitioner herein could be negatived. The object of Section 488, Cr. P.C. is to save the wife and children from vagrancy and

destitution. Under the provisions of Section 488, Cr. P.C. the neglected wife or illegitimate child who is unable to maintain itself, is entitled to a

monthly allowance of maintenance on the proof of neglect or refusal from the husband or the father, as the case may be. The term 'wife' has not

been defined in the Code of Criminal Procedure but a wider meaning has been given to this term in the Central Criminal Procedure Code by

including a ""woman"" who has been divorced by the husband or who has obtained a divorce from her husband and has not remarried. Thus a

woman"" not having the legal status of a wife, has been brought within the inclusive term of the definition of ""wife."" This has been done to achieve

the object of the section. The legislature in J. & K. State has not yet thought of this social aspect of the matter arising in a given case. The present

controversy is regarding the maintenance to a woman whose marriage was ipso facto void at the time when it was solemnized. Neither the

legislature nor the Apex Court has given any benefit to the status of such a wife. In the case of K. Bimla (supra) the respondent therein on the

pleadings was bound to prove that the marriage of the respondent-husband in the customary form was subsisting in the year 1983 when the

appellant K. Bimla was married to him. In the presence of the doubt of the first marriage, the Apex Court had held that the marriage of the

appellant K. Bimla with respondent-Veera Swami did not suffer from any legal infirmity. On those facts it was held that the Court should have

insisted for the strict proof of the earlier marriage. In the instant case, this is not the position as nowhere the petitioner herein has pleaded that at the

time when she was married with the respondent herein, first marriage of the respondent was not subsisting or it was an affair of doubtful nature.

The ratio decidendi of the case of Jamuna Bai (supra) which was earlier decided by the Apex Court in 1988 applies in all fours to the facts of the

present case. It is the petitioner, who intends to take benefit of the benign provisions of Sub-section (1) of Section 488, Cr. P.C. and thus she is

required to establish the necessary condition, namely, that she is the wife of the respondent. In Jamuna Bai's case (supra) the expression 'wife' has

been interpreted by the Apex Court to mean only a 'legally wedded wife.' The petitioner herein has failed to prove that she was the legally wedded

wife of the respondent. In the presence of such an infirmity starting the case from its inception, the petitioner is found not (sic) to claim maintenance

allowance from the respondent. Accordingly, it is found that the judgments and orders of the Courts below are in consonance with the provisions

of law and there is no merit in this revision petition which is dismissed.