BHAGWANT Vs. SHYAM DEVI

JUDGEMENT

(1.) THIS is a petition under Article 227 of the Constitution of India read with Section 561-A of the Code of Criminal Procedure with a prayer that the order and judgment of the learned District Magistrate, Kinnaur District at Kalpa, dated the 31st July, 1972, be quashed.

(2.) THE present respondent had filed a petition under Section 488 of the Code of Criminal Procedure before the Nyaya Panchayat Kalpa on 31st December, 1970 fou maintenance to herself from the present petitioner in this Court on the allegations that according to the custom prevailing in their JJaqa she was a legally married wife of the petitioner and that he had cohabited with her on that right and as a result of that she also conceived a child. When the petitioner saw that the respondent had conceived he tried to get rid of her and somehow or other turned her away from his house on 24th December, 1970. It was on that ground that she laid the petition under Section 488 of the Code of Criminal Procedure before the Nyaya Panchayat, which had the jurisdiction under Sub-section (2) of Section 203 of the Himachal Pradesh Panchayati Raj Act, 1968, to take cognizance of such cases. The petitioner denied the allegations of marriage as also cohabitation with her and opposed the application for maintenance.

(3.) SINCE the case was pending before the Nyaya Panchayat for a pretty long time, therefore,, the respondent moved an application before the Sub-Divisional Judge for the transfer of the proceedings, which was accepted. In the meanwhile the Sub-Divisional Magistrate who had withdrawn the case from the file of the Nyaya Panchayat to his own, proceeded on leave and one Shri Shalindra Nigam took over from him as Sub-Divisional Officer, Kalpa. He was not invested with the criminal powers till the 5th February, 1972, and, therefore, the District Magistrate withdrew those proceedings from his file to his own. It appears that during the pendency of these proceedings the respondent gave birth to a child and thereupon the District Magistrate while proceeding with the case framed issued with regard to the marriage of the respondent with the petitioner, about the entitlement of the respondent to maintenance for herself; about the legitimacy of the child born to the respondent and the liability of the petitioner to maintain the child.