BUDH RAM Vs. SAWNI

JUDGEMENT

(1.) SMT . Sawni who is respondent before, me brought a petition under section 4 88 of the Code of Criminal Procedure on her behalf and on behalf of her two minor children, namely, Gian Chand, her son; and Sunito alias Surjito 2 years' old daughter, for maintenance against the petitioner claiming that she was married to Ram Kishan brother of Budh Ram petitioner and after his death she contracted a Karewa marriage with Budh Ram petitioner. She claimed that these two children were born to her out of her wedlock with Budh Ram petitioner and now Budh Ram petitioner has refused to keep her and her two minor children and has turned them out after Leafing and mal -treating her and that they are entitled to have maintenance from him.

(2.) THE learned Magistrate after appreciating the evidence led by the parties came to the conclusion that Smt. Sawni respondent was entitled to Rs. 20/ - per month as maintenance for herself and both the minor children were entitled to Rs. 10/ - each per month as maintenance. Therefore, he granted a maintenance allowance of Rs. 40/ - per month to them. The learned Additional Sessions Judge, Ambala, vide his order dated 20th July, 1970 has made a reference to this Court for quashing the order of the learned Magistrate mainly on the ground that since it was admitted on the record that Budh Ram petitioner had a living wife at the time when the alleged Karewa marriage was contracted between Smt. Sawni and Budh Ram and keeping in view the provisions of the Hindu Marriage Act the said Karewa marriage was illegal. Section 4 of the Hindus Marriage Act precludes the application of the custom and section 5(1) declares that a marriage may be solemnized between any two Hindus if neither of them has a spouse living at the time of the marriage and according to section 11 the marriage in contravention of that condition shall be void.

(3.) AS regards the maintenance allowance granted to Gian Chand and Surjito the alleged children born to Smt. Sawni out of her illegal Karewa marriage with the petitioner, it has to be noted that under the provisions of section 488 of the Code of Criminal Procedure, even the illegitimate children have a right to claim maintenance. Therefore, their application cannot be thrown out on the ground that the marriage of Sawni with the petitioner is void. This aspect of the case was never gone into by the learned Additional Sessions Judge. The Learned Counsel for the petitioner husband contends that from the evidence adduced by the parties, a finding cannot be recorded that Smt. Sawai had contracted a Karewa marriage with the petitioner and that two children were born out of their wedlock. The Learned Counsel contends that the evidence of Smt. Sawni (P.W. 1), Ram Kishan (P.W. 2) and Bhan Singh (P.W. 3) is not enough to record a finding that Gian Chand and Surjito minors were born out of the loins of the petitioner and from the womb of Smt. Sawni. respondent. I have gone through the evidence of Smt. Sawni (P.W. 1), Ram Kishan (P.W. 2) and Bhan Singh (P.W. 3) produced by the wife and that of Sawan Sam (R.W. 1), Tota Ram (R.W. 2), Tej Ram (R.W. 3), Daulat Ram (R.W. 4) and Budh Ram (R.W. 5) produced by the petitioner in that connection. No doubt there was a suggestion put to the P.Ws that Smt. Sawni was Jiving unchaste life alter the death of her previous husband Ram Kishan but there is no evidence led by the defence to prove that contention. It was suggested to her that Budh Ram made an application against her unchaste life to the Superintendent of Police which suggestion was denied by her. But curiously enough no evidence has been led by the petitioner to prove that the said application was made by him in the year 1966. The Learned Counsel for the petitioner has referred to a copy of the said complaint, but the said copy is neither proved to be a true copy nor the same was got proved from any witness. For the purposes of this case the said document is a waste paper and cannot be looked into. The petitioner is naturally out to throw mud on the character of the respondent Smt. Sawni as in that case it he succeeds, he will not be liable to pay any maintenance, to his illegitimate children. But I find that the learned Magistrate having gone into the whole evidence rightly came to the conclusion that the wife had succeeded in proving her Karewa marriage with the petitioner and also succeeded in proving the birth of these two children from her womb and out of the loins of the petitioner. It is a different matter that because of the provisions of the Hindu Marriage Act, the said Karewa marriage is not a marriage in the eyes of law, but it can be safely said that the two minor children are the illegitimate children of the petitioner. However, the birth entry of Surjito has been produced which has been exhibited as Exhibit P.A. It shows that Surjito was born from the womb of respondent Sawni and she is mentioned as the daughter of Budh Ram petitioner. The contention of the Learned Counsel for the petitioner that tins entry is fictitious cannot be accepted without any evidence on the record to that effect.