Mir Iqbal Husain, J
1. This Revision Petition raises an interesting quetsion as to the maintenance of the petitioner who alleges that she is the lawful wife of the respondent. The -petitioner belongs to Kurbar Community and the respondent to Padmasale Community. She filed an application under Section 488 of the Criminal Procedure Code in the Court of the City Magistrate, Bangalore, requesting for maintenance to herself as well as to her children, against the respondent Ramanarasimhaiah, who was at that time a Sub-Inspector of Police. The latter while acknowledging that the children were born to him, did not acknowledge the status of their mother as his legitimate wife. Ho alleged on the other hand that he had already married a wife by name Lakshmidevamma. He also contended that he and the petitioner did not live as husband and wife together for a number of years though the children were born to them. At this stage it was brought to my notice that during the pendency of this case before the City Magistrate, he has taken possession of the children and they are in his custody. The learned City Magistrate dismissed the petition and aggrieved by this, the petitioner has come In revision to this Court. So the matter that requires consideration at the hands of this Court is whether the petitioner is entitled to maintenance under the provisions of the Section 488, Criminal Procedure Code.
2. The petitioner alleges that she is the legitimate wife of the respondent; she was married to the respondent in the year 1939, that she and the respondent have lived together ever since as husband and wife until he discarded her in the year 1958.
3. In support of her contention she has relied upon Exhibit P 5, a registered agreement dated 10-4-1952 executed by the respondent in her favour. The respondent states therein as per Exhibit 5(a) that for 13 years the petitioner has befriended him. It also states as follows:
You and I lived together like wife and husband. Three children are born to us and they are alive. As there is no document evidencing our relationship as husband and wife, I have this day executed this agreement.
Sri Mariappa, learned Counsel for the petitioner strongly relied on this document as evidence of legitimate relationship of wife and husband between the petitioner and respondent. For the purpose of this case this being a summary proceeding - whether it can be culled out from this document that such a relationship of legally married husband and wife exists? In juxtaposition with this document, another document is to be read and that is the Will executed on the very same day by the respondent in which he makes a provision for the maintenance of his children. That is also a registered document and it is marked as Exhibit D-3 in this case. The relevant provisions in it marked as Exhibit D-3 (b) run as follows:
I had married one Laxmidevamma, daughter of Dodda Venkataramanappa. She was not keeping well for the last 10 or 11 years and was without a progeny. She is living with her parents for the last seven years. As I am not inclined to marry a second wife, the intimacy that has developed with you, Savitramma, daughter of LaKkanna for the last 13 years and as some objections were raised by your community people and relatives, to avoid all these and on account of faith and love in me, you have left off your husband Gowda Rangappa and come away with a seven year old daughter Sarojamma and stayed with me.... In this way you have left off all your people and having full faith and love towards me, have lived like a wife. Two children are born to you by me, called Indiramma, aged 7 years and Jayanarasimha, aged l 1/2 years
These two documents read together indicate that the petitioner cannot be regarded as the legally married wife of the respondent.
4. The burden of proving that she Is the legally married wife of the respondent is heavy on the petitioner. She has examined herself and a few witnesses. But her evidence falls short of proving that she is the legally married wife, for, she does not know where the marriage took place; she does not know who the purohit was; she does not know the day or the month or the year of her marriage; and she could not give the exact place of the marriage. No witness who was present at the time of the marriage has been examined. The oral evidence together with the documentary evidence referred to above indicate that the petitioner has failed to prove that she is the legally married wife of the respondent.
5. The scope of Section 488 of Criminal Procedure Code is rather restricted. Its object is to prevent vagrancy of wife or of the legitimate or illegitimate children, it affords speedy remedy for the aggrieved party. But it does not determine the legal rights as a Civil Court does. Otherwise, it would usurp the jurisdiction of Matrimonial Court. What the section provides for is the maintenance to wife or her legitimate or illegitimate children, If the intention of the legislature was that provision is to be made for even the illegitimate wife just as in the case of children where the expression 'legitimate' or 'illegitimate' is used, similar expression would have been employed, That has not been done thereby indicating that the term 'wife' includes only the legitimate wife and excludes any intermitted one.
6. It is necessary to make a brief reference to some of the cases where the word 'wife' used in Section 488 Cr.P.C. refers to the legal wife. Pwa Me v. San Hla reported in 26 ind Cas 631 (2) : AIR 1914 Low Bur 266 lays down that 'under Section 468 Criminal Procedure Code, a woman cannot be granted a maintenance order against a man unless she proves herself to be his legal Wife according to his personal law'. The decision of the Madras High Court in Lakshmi Ambalam v. Andiammal, reported in 172 Ind Cas 811 : AIR 1938 Mad 66 is of the same view. It lays down as follows:
Under Section 488, Criminal Procedure Code, a woman is not entitled to maintenance even if she has lived with a man as his wife for 12 years and has also borne him a child. Only legally married women are entitled to maintenance under Section 488 Criminal Procedure Code.Similar is the decision in Emperor v. Ganeshibai, reported In AIR 1943 Sind 156 which states thatSection 488 applied only to the abandoned wife and not to the abandoned mistress, however faithfully she may have been to her paramour, and however badly she may have been treated by him.
7. Sri Mariappa, the learned Counsel for the petitioner however urges that because of the fact that the petitioner and respondent have lived together for nearly 20 years as husband and wife and the petitioner has borne him children who are acknowledged by the respondent as his own, the presumption that the petitioner is the legally married wife of the respondent arises. In support of that contention, he strongly relies on the decision of the Privy Council in Mohabbat All Khan v. Mohammad Ibrahim Khan, reported in AIR 1929 PC 135. In that case, the question for decision was whether Mohabbat All Khan was the legitimate son of Khan Sahib Kushdil Khan. Admittedly Mohabbat All Khan was born to Mr. Babo. Kushdil Khan acknowledged Mohabbat AM Khan as his own son. it is held that 'an acknowledgement by the father, is an acknowledgment which involves the assertion that he, the father Kushdil was married to Mr. Babo, the appellant's mother. Such acknowledgment undoubtedly raises a presumption in falabour of the marriage and of the legitimacy.' The principle underlying. the decision indicates that the law would lean towards legitimacy rather than illegitimacy of the children and when the father acknowledges them as his own the presumption is that they are his legitimate children and entitled to maintenance. On the evidence in that case both oral and documentary their Lordships of the Privy Council came to the conclusion that Mohabbat Ali Khan was the legitimate son more so because of the acknowledgment made by the father Kushdil Khan.
8. Similar was the matter which came up for decision In our own High Court in Shivalingiah v. Chowdamma, reported in AIR 1956 Mys 17 and it was held that:
When a woman lives for a number of years in close association with a man and bears children who are acknowledged by the man as born to him, relations and persons of the village treat them as such there is a presumption of legitimacy as vice and immorality are not usually attributed to such association between a man and a woman.
9. These two decisions cited by Sri Mariappa do not help his contention. They are not cases in which provisions of Section 488 Cr.P.C. were considered. In any case the presumption that arises of the legitimacy of the wife is a rebuttable one. In the instant case Exhibit D-3 clearly indicates that petitioner was the wife of Gowda Rangappa. How then can she be the legitimate wife of the respondent? As the petitioner does not come within the connotation of the term 'wife' under Section 488, Cr. Procedure Code, her petition fails and is dismissed.