J.S. Bedi, J. - (1.) PRITAM Kaur applied under Section 488, Code of Criminal Procedure, against Bansi Lal for maintenance alleging that about 4 years back Bansi Lal was a Head Constable in the Punjab Armed Police and was posted in a P.A.P. picket in village Wan, when she was married to him. They both lived together thereafter as husband and wife and from that wedlock a daughter was born. Bansi Lal had taken a room in Amritsar from one Amrik Singh where she used to live and where Bansi Lal used to come during holidays and also on other occasions. It was also alleged that Bansi Lal then indulged in taking liquor and had cultivated illicit connections with other women, which Pritam Kaur resented. Bansi Lal, therefore, started beating and maltreating her. Amrik Singh, owner of that house, used to come to her rescue a number of times. The Applicant thereafter went to her parents and started living there at village Wan. The Respondent Bansi Lal was thereafter transferred to Jullundur and then to Gurdaspur where her brother Gurcharan Singh along With Sucha Singh. Achhar Singh and others went to him for reconciliation, but to no effect. Bansi Lal having refused to maintain her and even to take her back to his house, Pritam Kaur filed this application claiming Rs. 70 per mensem for herself and Rs. 30 per mensem for her minor daughter as maintenance. It was alleged that the salary of Bansi Lal was Rs. 130 per mensem and his income from the landed property was about 10,000 per annum.
(2.) THE application was resisted by Bansi Lal who denied his marriage with Pritam Kaur and asserted that he was already married to one Roshni Devi from whom he has a daughter aged about 8 years. The parties led evidence in support of their respective pleas. Shri Amar Singh, Magistrate 1st Class, Amritsar, after recording the evidence and hearing the parties came to the conclusion that the Applicant was legally wedded to the Respondent and that the latter had neglected and refused to maintain her and her daughter, allowed Section 25 for Pritam Kaur and Rs. 10 for her daughter Harjinder Kaur by way of maintenance, - -vide his order, dated the 30th July, 1962. Against this order Bansi Lal went up in revision to the Court of Session, which came up before Shri Brijindra Singh, Additional Sessions Judge, Amritsar, who held that Bansi Lal was already married to Roshni Devi and his marriage with Pritam Kaur being void, she (Pritam Kaur) was not entitled to any maintenance. Regarding Harjindar Kaur, daughter of Pritam Kaur, he found that there was no proof that the child was born to Pritam Kaur from the loins of Bansi Lal. As a result of the above findings, he made a recommendation to this Court that the order of the learned Magistrate, dated the 30th July, 1963 be set aside. The recommendation was opposed by Pritam Kaur. and her counsel while arguing the case submitted that in proceedings under Section 488, Code of Criminal Procedure, the Court has no jurisdiction to go into the question whether the marriage of the parties was legal or otherwise. He maintained that to determine such questions a separate Tribunal has been set up by virtue of the Hindu Marriage Act, 1955. In support of his contention he cited Janak Dulari v. Narain Dass , I.L.R. 1959 P&H 152 :, A.I.R. 1959 P&H 50, Balwant Kunwar v. Addl. Munsiff : A.I.R. 1959 All. 7 and Bikram Singh v. Sudarsan Singh : A.I.R. 1961 All. 150. It is true that applications under the Hindu Marriage Act are to be decided by a particular Tribunal. But the provisions under Section 488, Code of Criminal Procedure, are of a summary nature and before any relief can be given to a party, the first and the foremost point to be considered is whether the parties have been married, which obviously means legal marriage. In the present case the learned Additional Sessions Judge has come to the conclusion that Bansi Lal was married to Roshni Devi a number of years before the alleged marriage of Pritam Kaur with him. According to the provisions of the Hindu Marriage Act it is obvious that the parties can enter into a marriage only if they are not already married. If any of the parties is already married, then the second marriage would be void. It would therefore be wrong to say that while dealing with' applications under Section 488, Code of Criminal Procedure, the Magistrate can only go to the extent of finding whether a marriage has taken place between the parties or not. and that it is not within his domain to decide whether their marriage, if at all, is legal. I am supported in this view; by a case reported as Lakshmi Ambalam v. Andiammal : A.I.R. 1938 Mad. 66, This was a case under Section 488, Code of Criminal Procedure, in which Newsam J. held that only legally married women are entitled to maintenance.
(3.) THERE is, however, enough material on the record to show that Harjinder Kaur was born to Pritam Kaur through Bansi Lal and that she is a minor. Although she is not living with her father yet she is entitled to maintenance by virtue of the provisions of Section 488, Code of Criminal Procedure : See also/in this connection Abnash Chancier v. Smt. Soshila Devi , 1962 P.L.R. 161. In my opinion, therefore, a maintenance allowance of Rs. 30 per mensem for Harjinder Kaur would be sufficient. I order accordingly. The recommendation of the learned Additional Sessions Judge is. therefore, partly accepted.;