MATHURA RAI Vs. MTMARACHOO KUER

JUDGEMENT

(1.) This matter has been referred to a Division Bench by a learned Judge of this Court on the ground that there is no direct decision of a Division Bench of this Court on the question raised. The question raised concerns the interpretation of Section 488, Criminal P.C. Sub-section (1) of this Section is as follows: If any person having sufficient means neglects, or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or a Magistrate of the First Class may, upon proof of such neglect or refusal, older such person to make a monthly allowance for the maintenance of his wife or such child, at such monthly rate, not exceeding one hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.

(2.) The petitioner, has been ordered to maintain a child whom the Magistrate has held to be his illegitimate child, though the petitioner himself denies the relationship. Mr. Ganesh Sharma argues that once the relationship of marriage or paternity, as the case may be, is denied, Section 488 ceases to have application, the Magistrate has no jurisdiction, and the parties must be referred to a civil Court. In other words, he argues that the issue of relationship cannot be raised before the Magistrate.

(3.) In the first place, such an interpretation would make the provisions of the Section a complete nullity. The defence would be taken in every case that the woman was not the man's wife if asked to maintain his wife or the child was not his if asked to maintain his illegitimate child. This could hardly have been the intention of the Legislature.