1. Petitioner has involved jurisdiction of this court in terms of Section 561-A Criminal Procedure Code (for short the Code) for quashing proceedings drawn and initiated by the Judicial Magistrate Sub Judge, Small Causes Court, Srinagar, in a petition for grant of maintenance filed by respondent no. 1 Mrs. Huma Zaffar on her behalf and on behalf of her son respondent no.2 on the grounds taken in the petition.

2. Heard.

Learned counsel for the petitioner has argued that in a petition under Section 488 of Code proceedings drawn and orders passed are abuse of process of law on the ground that respondent no. 1 Mrs. Huma Zaffar, applicant no. 1 before the trial court has contracted marriage with petitioner herein Wajahat Hussain during the subsistence of her first marriage, thus the marriage is void and proceedings under Section 488 of the Code are not maintainable. She does not fall within the definition of Wife as given in section 488 of the Code.

3. Learned counsel for respondent no. 1 argued that no marriage was performed by respondent no. 1 with any other person but a fraud was practiced upon her and in order to cheat and defame respondent no. 1 a conspiracy was hatched and marriage documents were manipulated and managed. Respondents after noticing the said fact immediately invoked jurisdiction of the competent court and obtained a decree from the said court.

4. The sole question which needs determination is where this petition is maintainable? And whether grounds are available to the petitioner in order to seek quashment of the petition under Section 488 of the Code, the answer is negative for the following reasons.

5. It is profitable to reproduce para no. 1 of Section 488 of the Code here under:

"If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the Chief Judicial Magistrate or any other Judicial Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife of such child, at such rate, not exceeding five 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."

6. The question is what does word "wife" mean. Normally it means that parties- husband and wife must have entered into valid contract of marriage and performed religious ceremonies as per the personal law applicable. The Magistrate while passing order under Section 488 of the Code is not to decide intricate questions of law but has to hold that the parties lived as husband and wife and they were treated as such in order to achieve the purpose ,aim and object of granting maintenance. The Apex Court in a case Ranganath Parmeshwar P. Mali v. E.G.Kulkarni reported in AIR 1996 SC 1290 held that presumption of valid marriage can be safely drawn in respect of two persons who live as husband and wife for continuous and long period to the knowledge of others. It is profitable to reproduce para no. 6 of the judgment as under:"

"... It has been held by this Court in the case of S.P.S. Balasubramanyam v. Surutayan, (1994) 1 SCC 460 (1993 AIR SCW 3765) that if a man and woman live together for long years as husband and wife then a presumption arises in law of legality or marriage existing between the two. But the presumption is rebuttable. The High Court, committed an error of law in recording a finding that the presumption would arise only if the factum of marriage is proved. We are afraid if factum of marriage is proved, the question of raising presumption does not arise. The lower appellate Court on the other hand has merely entered into the arena, of conjecture and surmises by interfering the finding of the trial judge without considering the relevant and material evidence on the point. In this view of the matter findings arrived at by the lower appellate Court as well as by the High Court on the question of relationshi

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