A child born out of a void marriage is legitimate if the marriage would have been valid but for the fact that one of the parties had a living spouse at the time of the marriage.

JUDGMENT :

SHARMA, J.

1. Appellant 1 Bakulabai filed an application under Section 125 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) before the Judicial Magistrate, Degloor, alleging that she was lawfully married to respondent 1 Gangaram and that appellant 2 Maroti was born out of this wedlock. She claimed maintenance both for herself and for her son. Gangaram denied the marriage as well as the paternity of appellant 2. He also averred that he was already married twice before the wedding pleaded by Bakulabai and that both his wives were living.

2. The judicial Magistrate accepted Bakulabai's case and granted maintenance at the rate of Rs. 100/- per month in her favour and additional Rs. 50/- per month for the minor boy.

3. Gangaram moved the Sessions Judge in revision. Bakulabai also filed a revision application for enhancement of the rate of maintenance. The two applications wore registered respectively as Criminal Revision No. 83 of 1984 and Criminal Revision No. 110 of 1984, and were heard together. The Sessions Judge accepted the defence case, reversed the findings of the Judicial Magistrate and dismissed the application for maintenance. Revision Case No. 83 of 1984 was thus allowed and the wife's application was dismissed. Bakulabai challenged the order before the Bombay High Court by a revision application. By the impugned judgment the High Court rejected the same holding that since it was the second revision application by the wife it was not maintainable, being barred by the provisions of Section 397(3) of the Code. The court further proceeded to examine the merits of the case and concurred with the view of the Sessions Judge. The appellants have now come to this Court by special leave.

4. On the maintainability of the revision application before it, the High Court took an erroneous view. The provisions of sub-section (3) of Section 397, relied upon, are in the following terms:

"(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by either of them."

The main judgment of the Judicial Magistrate upholding the appellants' claim for maintenance was in her favour and there was no question of her challenging the same. Her challenge before the Sessions Judge was confined to the part of the order assessing the amount of maintenance, and this issue could not have been raised again by her. Subject to this limitation she was, certainly entitled to invoke the revisional jurisdiction of the High Court. The decision on the merits of her claim went against her for the first time before the Sessions Judge, and this was the subject matter of her revision before the High Court She could not, therefore, be said to be making a second attempt when she challenged this order before the High Court. The fact that she had moved before the Sessions Judge against the quantum of maintenance could not be used against her in respect of her right of revision against the Sessions Judge's order. Accordingly, the decision of the High Court on this question is set aside and it is held that the revision petition of the appellant before the High Court, except the prayer for enhancing the amount was maintainable.

5. Now, coming to the other aspect, the Judicial Magistrate on a consideration of the evidence led on behalf of the parties accepted the appellants' case. He held that Bakulabai and Gangaram had lived together in the same house as husband and wife for a considerable period, and the boy Maroti was born of this union. On the question as to whether Gangaram was already married and his wife or wives were living on the date of the marriage with the appellant Bakulabai is alleged, the Magistrate did not record a categorical finding. According to the case of Gangaram, he was first married with Rajabai, and again with Kusumbai in 1969. It was, therefore, argued on his behalf that as he had two living spou