BRAJ NANDAN CHOUDHARY Vs. SMT. JANKI DEVI

JUDGEMENT

(1.) This is an application in revision by the petitioner against the order passed by a Magistrate, 1st class Biharshariff, on 31st. December. 1973 directing him to pay Rs. 35/ - per month to the opposite party as maintenance and Rs. 15/ - per month to her son born of him under the provisions of Sec. 488 of the Code of Criminal Procedure, 1898. The opposite party had filed an application under Sec. 488 of the Code of Criminal Procedure claiming maintenance for herself as also for her minor son born of the petitioner at the rate of Rs. 100/ - per month on the allegation that the petitioner had married her and begotten a child but had subsequently started neglecting and not maintaining her and the child. Subsequently, in course of her examination before the court, the opposite party claimed only Rs. 35/ - per month for herself and Rs. 15/ - per month for her minor son by way of maintenance.

(2.) The learned Magistrate, after examining the witness produced on behalf of the parties and consider ring the claim of the opposite party came to the conclusion that the petitioner had already a wife living at the time of the alleged Sagai between him and the opposite party and the opposite party had already a husband living at the time of Sagai and the Sagai had taken place sometime near about the year 1965 when the Hindu Marriage Act had been in force. So, in view of Ss. 5 and 11 of the Hindu Marriage Act; the marriage or sagai between the petitioner and the opposite party was void. He, however, held that even though the marriage was void, the petitioner was liable for maintenance of the opposite party and her son as, according to the learned Magistrate, unless the marriage was declared a nullity, the petitioner was liable to pay maintenance. The learned Magistrate has placed reliance upon a derision of the Madras High Court in the case of (11) Paramasami Pillai V. Somathamal ( : A.I.R. 1969 Mad 124) referred to him by Learned Counsel for the opposite party. But the decision in that case has no application to the facts of the present case and. It does not help at all in deciding the question which falls for decision here. In that case it was held that though the marriage with an important woman is invalid, on the death of the husband who did not ask for a declaration from the court that the marriage was a nullity, the woman must be held to be his widow and the person claiming as reversioner of the deceased cannot raise the question whether that woman was the widow of the deceased

(3.) Learned Counsel for the petitioners has placed reliance on a Bench decision of this Court in the case of (2) Banshidhar Jha V. Chhabi Chatterjee ( : A.I.R. 1967 Pat 277) where it has been held that "it is well -settled that a woman can claim maintenance under Sec. 488, only if she is a legally wedded wife of the man, from whom she claims maintenance." It has also been urged by Learned Counsel for the petitioner that the opposite party has not adduced any evidence of corroborative nature to establish that the so -called son was born of the petitioner, excepting her own evidence which has been actually repeated by other witnesses without disclaiming as to how the child has been claimed to be a son born of the petitioner. In this connection, Learned Counsel for the petitioner has referred to a decision of this Court in the case of (3) Thakur Prasad V. Godavari Devi ( : A.I.R. 1951 Pat 514) where it has been observed thus: