BHANBAI MAVJI Vs. KANBI KARSAN DEVRAJ

JUDGEMENT

(1.) Bai Bhanbai of Sukhpar the applicant filed Criminal Miscellaneous Application No. 24 of 1966 in the Court of the Judicial Magistrate First Class Bhuj for claiming maintenance at the rate of Rs. 150/per month against the opponent No. 1 under sec. 488 of the Criminal Procedure Code inter alia alleging that she was the wife of the opponent and that she was ill treated by her husband and ultimately driven out. She also alleged that she had two daughters and that she was pregnant at the date of the application. The application was resisted by the opponent inter alia contending that she was not his lawfully married wife and that she was merely staying with him as his mistress and that therefore she was not entitled to claim any maintenance from him. He also denied the allegations about ill treatment etc. The learned Magistrate after considering the effect of the evidence adduced in the case found that the petitioner was not the lawfully married wife of the opponent and consequently she was not entitled to claim any maintenance from him. As to the claim for maintenance of the children the opponent was directed to pay at the rate of Rs. 18/per month to the applicant from the date of the application. Feeling dissatisfied with that order passed on 15 May 1968 by Mr. D. L. Vora Judicial Magistrate Bhuj the applicant preferred Revision Application No. 33 of 1968 in the Court of Sessions Judge Kutch at Bhuj. The contention before him was that she had her first husband alive and therefore her alleged marriage with him was void. She cannot therefore be said to be his lawfully married wife even if she had contracted re marriage with him. That was upheld by the Court and consequently it was found in agreement with the trial Court that she was not entitled to claim any maintenance for herself from the opponent as his wife under sec. 488 of the Criminal Procedure Code. The application thus came to be rejected. Feeling dissatisfied with that order passed on 14 October 1968 by Mr. V. J. Japee Sessions Judge Kutch at Bhuj the applicant has come in revision before this Court.

(2.) Mr. Hathi the learned advocate for the applicant urged that the learned Sessions Judge omitted to take into consideration the material evidence with regard to the divorce said to have been given by Kanji the previous husband of the applicant. Besides it was urged that in the opponents first written statement filed by his Advocate in the case on 23 he had admitted the applicants status as that of his wife and that has been wrongly not taken into account holding it to be inadmissible in evidence as hit by sec. 129 of the Indian Evidence Act. That has resulted in an error of law and it has seriously affected the decision on the point in the case. It was on the other hand contended by Mr. Mankad the learned advocate for the opponent that the concurrent findings of both the Courts below about the applicant having failed to establish her status as wife of the opponent is one based on proper appreciation of the evidence and it cannot be interfered with in revision by this Court. He also urged that even if the written statement filed by the Advocate were taken into account it cannot establish the fact of her marriage with him established as required in law. Now it is conceded that sec. 129 of the Indian Evidence Act sought to be applied by the learned Sessions Judge in holding that written statement as inadmissible in evidence cannot apply. The effect thereof has therefore to be considered. Thus there was an error of law in rejecting that part of evidence in the case and it would therefore be open to consider the question by taking into account this piece of evidence along with other evidence in the case. I shall deal with that part of evidence hereafter.

(3.) In order that the applicant is entitled to claim maintenance under sec. 488 of the Criminal Procedure Code it is essential for her to establish that she was the wife of the opponent and that her husband had refused to maintain her. Mr. Hathi urged that all that sec. 488(1) requires is that she was the wife of the opponent and if that is established the validity or otherwise of the marriage on account of certain other factors was not required to be gone into. According to him it was an undisputed fact that she had contracted remarriage with the opponent and that she had given birth to two children by him. She was living with him for about 21 years before the date of the application as his wife and was recognised as such in the society. That much evidence on record was enough to hold that she was his wife and that since she was neglected and deserted by her husband she was entitled to maintenance under sec. 488 of the Criminal Procedure Code. On a plain perusal of sec. 488(1) of the Criminal Procedure Code it appears abundantly clear that what is contemplated by the term wife referred to therein is the lawfully wedded wife and that term at any rate does not cover any other person much though she was living with him as if she was his wife. It need not say the lawfully married wife as when the term wife is used it has to be taken as a legitimate wife by reason of a valid marriage according to the law governing the parties. That becomes all the more clear from the expressions used in the second part thereof wherein reference is made to legitimate or illegitimate child who can claim maintenance under sec. 488(1) of the Code. In other words the Legislature was clear in its mind to apply this provision in respect of children either legitimate or illegitimate born of a woman neglected or refused to be maintained by his or her father. If it intended to include any illegitimate wife the Legislature could have said so just as it said in respect of children. It is thus clear that no illegitimate wife is given any such right to claim maintenance under sec. 488(1) of the Act. In the law lexicon of British India by P. R. Aiyar wife has been defined as a married woman. For conferring the status of wife on the woman marriage must be valid under law. It does not say any woman but speaks of wife and to be a wife of any person she must have been married with him according to the law affecting the parties in that regard. No authority is needed for such a proposition. However I may refer to a decision in the case of Smt. Savithrauna v. N. Ramanarasinhaih 1963 Cri.L.J. 131 (Mysore) where it was held:-