Decided on November 28,1972

Vithabai Laxman Hedau (Original Applicant) And Laxman Ganpat Hedau (Original Non -Applicant) Respondents


B.A. Masodkar, J. - (1.) The Sessions Judge, Nagpur, has made this reference in Criminal Revision Application No. 14 of 1970, which was directed against the order made by the Judicial Magistrate, First Glass, 8th Court, Nagpur, rejecting an application filed by Smt. Vithabai claiming maintenance under Sec. 488 of the Code of Criminal Procedure. During the trial it was the case of the applicant that she was married to the non -applicant on April 12, 1970 at Nagpur and was living with him at Gondhaliriura, Dasera Road till about November 1970. She conceived from the non -applicant and by the time her evidence was recorded, she had also delivered a child. To this plea that she was legally married wife, the non - applicant by his written statement said that she was not his wife at alt and further she was never married to him.
(2.) The learned trial Court, who recorded the evidence in this case, came to the conclusion that the marriage as per Hindu Law was not established and dismissed the application. The learned trial Court observed that if the marriage performed was according to Hindu rites, then home and saptapadi are the essential ceremonies which should take place and without that the marriage cannot be said to be a valid marriage . The evidence on record does not go to show that a valid marriage had taken place between the parties. The revisional Court, i. e., the Sessions Judge, considered that this approach of the learned trial Judge to test the marriage strictly in accordance with the requirements of Hindu Law as if the learned Judge was trying an offence or deciding a civil dispute, has vitiated the said judgment. The Sessions Judge has observed that the burden in the matters arising under Sec. 488 of the Code which is a summary proceeding, contemplated by law, is not that heavy which is required when a trial for offences or for the purposes of establishing a marriage under Civil Law is contemplated. Upon that view, he has recommended that the order passed by the learned trial Judge should be set aside as there was sufficient evidence to establish that the applicant was legally married wife of the non -applicant.
(3.) The law relating to the provisions of Sec. 488 of the Code of Criminal Procedure has been a subject -matter of consideration by the Division Bench of this Court in In re: Gulabdas Bhaidas, ILR XVI Bom. 269 This Court was considering the provisions of Sec. 488 of the Code, though under different circumstances relating to the offer made by the non -applicant. The Court observed by looking to the scope and object of Chapter 36, which is entitled "Of the Maintenance of Wives and Children", that this chapter was "a mode of preventing vagrancy, or at lease of preventing its consequences". It is further observed that the Magistrate may not accept the English statutes and decisions, "which must have been familiar to the Indian Legislature when the Code of Criminal Procedure was passed". Reference is made to the judgment of West J., In re the petition of Shaik Fakruddin and to the decision in Thomson's case3 being an authority for holding the scope of the chapter in question to be limited. The Court observed that the Magistrate may not, except as is expressly provided, usurp the jurisdiction in matrimonial disputes possessed by the Civil Courts. It was further held that the questions which must be decided in the affirmative in such a case are whether the applicant was validly married to the person who was arrayed as non -applicant and whether she is justified in living separate from him.;

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