A woman can claim maintenance under Section 488 of the Code of Criminal Procedure only if she is a legally wedded wife of the man from whom she claims maintenance.

Ramratna Singh, J.

1. This implication is directed against an order of the Sub-divisional Magistrate of Purnea, by which the petitioner was required to pay Rs. 30 per month for the maintenance of his wife. Chhabi Chatterjee, and Rs. 20 per month for the maintenance of his infant daughter through the mother Chhabi Chatterjee under Sec. 488 of the Code of Criminal Procedure. The opposite party Chhabi Chatterjee filed an application under that Section on the 26th June 1903. alleging that she had been married with petitioner Banshidhar Jha, by exchanging gar-lands m a temple on the 6th Shravan, corresponding to the 21st July 1962, according to the customary right as also by the petitioner putting vermilion on her forehead. Since then, she claims to have lived with him as his lawfully wedded wife and given birth to the girl on the 23rd May. 1963, at Katihar Hospital, where the petitioner got her admitted. The petitioner denied the allegations and said that the infant girl was not his child, nor was Chhabi Chatterjee his wife. He further pleaded that he had already a lawfully married wife under Hindu law since 1952 and in view of the provisions of the Hindu Marriage Act, 1955, the marriage, if any, with Chhabi Chatterjee was void ab initio and therefore she was not entitled to claim any maintenance under Section 488 of the Code of Criminal Procedure.

2. Having considered the evidence of seven witnesses, besides Chhabi Chatterjee herself, some of whom are competent to speak abouf the marriage some about the birth of the child at Katihar Hospital and some on both the points as also some letters written before and after the marriage by the petitioner and the bed-head ticket of Katihar Hospital, the learned Sub-divisional Magistrate accepted the case of Chhabi Chatterjee that she was legally married to the petitioner and the child was born at Katihar Hospital of that marriage. He also considered the evidence of the petitioner, Banshidhar Jha. and one Bishwanth Sah claiming to be one of the shebaits of the temple in which the marriage is alleged to have been performed and rejected their evidence to the contrary. Some witnesses were examined on behalf of Banshidhar to say that the character of Chhabi Chatterjee was not good and she was a woman of ill-reputation; but he refused to accept their evidence also. We have been taken through the evidence of these witnesses examined on behalf of the parties and we are of opinion that the findings of the learned Magistrate are absolutely justified.

3. Mr. Gajadhar, however, laid stress on the provisions of the Hindu Marriage Act and submitted that this marriage with Chhabi Chatterjee was void ab initio, and, therefore, she was not entitled to claim maintenance under Sec. 488 of the Code of Criminal Procedure. He conceded, however, that, in law, the girl born to the petitioner of Chhabi Chatterjee is entitled to maintenance under that section even if she were an illegitimate child. He could not point out any material on the record to show that the amount of Rs 20 per month allowed as maintenance to the girl was excessive or unjustified So far therefore, as the maintenance to the girl is concerned the learned Magistrates order must be uphold. The learned Magistrate has rightly directed that this amount should be paid to Chhabi Chatterjee. in whose custody the girl is to remain

4. The only question now for considera tion is whether Chhabi Chatterjee is entitled to any mainlenance or not. It is well settled that, in order to enable her to claim main-tenance under Sec. 488, it must be proved that she is the legally married wife of the petitioner There is. of course, the finding to the effect that she was married to him in a temple and both of them lived as husband and wife Mr Gaja dhar submitted that, in view of certain provisions of the Hindu Marriage Act, 1955, the Marriage in 1962 was absolutely void. Sec. 5 (i) of this Act lays down that the marriage may be solemnised between any two Hindus,