Judgement Key Points

1. This revision is against the order of the Sub Judge (CJM) Srinagar dated 17-5-1979 dismissing the revision petition of the petitioner against the order of grant of maintenance to the respondent made in proceedings under section 488 Cr. P. C.

2. The short question that has been debated before me is that the respondent has not proved that there was a valid Nikah between her and the petitioner. In the absence of any proof of a valid Nikah, the magistrate could not award maintenance under Section 488 Cr. P. C.

3. I have gone through the judgments of the courts below as also the material on the record.

4. Both the courts have found that Nikah ceremony was performed between the petitioner and the respondent, wife, although the Nikah was irregular in the sense that it suffered from the vice of absence of two witnesses as required by the Muslim Law, but as the marriage has been consummated, therefore this defect has been cured and the Nikah would be considered valid. There is a distinction between a void marriage and irregular marriage. A void marriage is unenforceable and is void from its very inception, whereas in irregular marriage is curable when the defect is removed or when the marriage is consummated.

5. In the instant case, there is ample evidence on the record to show that after the Nikah ceremony was performed the respondent, wife, and the petitioner the husband, lived as husband and wife and out of the wed lock a child was born who has also claimed maintenance in these proceedings. Under section 488 Cr. P. C. what the magistrate has to consider is whether the respondent and the petitioner have lived as husband and wife and whether they have been taken and treated as such by the people at large. In proceedings under section 488 Cr. P. C. the court is not required to go into the complicated questions of law as regards the validity of marriage. That is the function of the civil court. The purpose of sec. 488 Cr. P. C. is to provide remedy against vagrancy and starvation. The pro-ceeedings are of quasi civil nature and section imposes a statutory duty on the magistrate to award maintenance to the wife in case of neglect or refusal on the part of the husband. As observed in AIR 1962 Tripura, 61, in such proceedings complicated questions of law are not expected to be gone into as in the case of civil suits, to decide whether the marriage spoken to by the witnesses constitute a valid marriage under the personal law of the parties. That will be decided by the civil court when a suit by the husband is brought in this regard.

6 The proof of the marriage in the instant case is the fact that the respondent and the petitioner have lived as husband and wife and out of the wedlock a child was born. The husband cannot, therefore, shirk his responsibility to pay maintenance to the respondents his wife and child. Further both the courts below have recorded a concurrent finding of fact as regards the factum of marriage. In the present revision petition it is not open to re-agitate that question of fact. There is also no force in the argument that the magistrate has not considered the question of paying capacity of the husband. In my opinion, there is sufficient evidence on the record to have justified a finding on this question. Keeping in view the present day hard times. I think that the amount of maintenance granted by the trial magistrate and affirmed by the Sub Judge (CJM) for the wife and the child is not excessive.

7. The result is that there in no force in this petition which is hereby dismissed.

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