JUDGMENT - The Sessions Judge, Nagpur, has made this reference in Criminal Revision Application No. 14 of 1970, which was directed against the order made by the Judicial Magistrate, First Class, 8th Court, Nagpur, rejecting an application filed by Smt. Vithabai claiming maintenance under section 488 of the Code of Criminal Procedure. During the trial it was the case of the applicant that she was married to the non-applicant on April 12, 1970 at Nagpur and was having with him at Gondhalipura, Dasera Road till about November 1970. She conceived from the non-applicant and by the time her evidence was recorded, she had also delivered a child. To this plea that she was legally married wife, the non-applicant by his written statement said that she was not his wife at all and further she was never married to him. 2. The learned trial Court, who recorded the evidence in this case, came to the conclusion that the marriage as per Hindu Law was not established and dismissed the application. The learned trial Court observed that if the marriage performed was according to Hindu rites, then homa and saptapadi are the essential ceremonies which should take place and without that the, marriage cannot be said to be a valid marriage. The evidence on record does not go to show that a valid marriage had taken place between the parties. The revisional Court, i.e., the Sessions Judge, considered that this approach of the learned trial Judge to test the marriage strictly in accordance with the requirements of Hindu Law as if the learned Judge W.H trying an offence or deciding a civil dispute, has vitiated the said judgment The Sessions Judge has observed that the burden in the matters arising under section 133 of the Code which is a summary proceeding, contemplated by law, is not that heavy which is required when a trial for offences or for the purposes of establishing a marriage under Civil Law is contemplated. Upon that view, he has recommended that the order passed by the learned trial Judge should be set aside as there was sufficient evidence to establish that the applicant was legally married wife of the non-applicant. 3. Upon that view, he has recommended that the order passed by the learned trial Judge should be set aside as there was sufficient evidence to establish that the applicant was legally married wife of the non-applicant. 3. The law relating to the provisions of section 483 of the C )de of Criminal Procedure has been a subject-matter of consideration by the Division Bench of this Court in In re Gulabdas Bliaidas.1 This Court was considering the provisions of section 488 of the Code, though under different circumstances relating to the off a made by the non· applicant. The Court observed by looking to the scope and object of Chapter 36, which is entitled "Of the Maintenance of Wives and Children", that this chapter was "a mode of preventing vagrancy, or at least of preventing its consequences". It is further observed that the Magistrate may not accept the English statutes and decisions, "which must have been familiar to the Indian Legislature when the Code of Criminal Procedure was passed". Reference is made to the judgment of West J., In re the petition of Shaik Fakruddin2 and to the decision in Thomsons cases being an authority for holding the scope of the chapter in question to be limited. The Court observed that the Magistrate may not, except as is expressly provided, usurp the jurisdiction in matrimonial disputes possessed by the Civil Courts. It was further held that the questions which must be decided in the affirmative in such a case are whether the applicant was validly married to the person who was arrayed as non-applicant and whether she is justified in living separate from him. 4. From this it is obvious that the Court before whom the application under section 488, Code of Criminal Procedure is made, has to come to a conclusion affirmatively whether the applicant was validly married with the non-applicant. To that effect is also the judgment cited by the non-applicants learned counsel reported in Bai Bhanabai Mavji v. Kanbi Karsnan Devraj4. 5. However, the question is one of approach and the burden in such matters. If, taking over-all picture of the evidence in a given case, it is possible to come to a conclusion that the case pleaded by the applicant that she was legally married to the non-applicant, then the proceedings under section 4138 are properly instituted by her. 5. However, the question is one of approach and the burden in such matters. If, taking over-all picture of the evidence in a given case, it is possible to come to a conclusion that the case pleaded by the applicant that she was legally married to the non-applicant, then the proceedings under section 4138 are properly instituted by her. The burden, in the matrimonial cases or when the matter is with regard to punishment to the accused upon g the proof of the marriage, is not the same as is under section 488, Code of Criminal Procedure. It is a quasi criminal jurisdiction. The probabilities involved in the case can be collected together to find out whether the applicant has made out a case that she is the legally married wife of the non-applicant. For obviously the orders rendered under section 488 of the Code do not lead to an issue of estoppel about the marriage of the parties in any competent proceedings to determine their real relationship. For the purpose of preventing vagrancy power is conferred upon the Magistrate to provide and thus protect a destitute in a summary proceedings. If sufficient material is put in such a trial to indicate the truth the applicant is the wife of the non-applicant, the power has to be exercised. Prima facie case to support such a claim has to be established by the applicant. Evidence tendered on oath by both the parties, circumstances relating to the conduct of parties, their previous admissions, their movements prior to coming in Court are all valuable guides in such matters. Preponderance of probabilities, therefore, may indicate that the applicants claim is trustworthy. That is sufficient to enable the Court to act under section 488 of the Code. If a regular trial of the complicated question as to the strict proof of the marriage ceremony is insisted, then in many cases the provisions would be rendered ineffective. 6. Standard of proof in such matters has been considered by the Mysore High Court in 8mt. Vanajakshana v. P. Gopala Krishna5 and so also in N. J B. David v Nilamoni Devi6. I am in respectful agreement with the proposition stated in these two decisions. 7. It will be necessary, therefore, to see the evidence in this case whether prim9facie the applicant has established that she is legally married wife of the non-applicant. Vanajakshana v. P. Gopala Krishna5 and so also in N. J B. David v Nilamoni Devi6. I am in respectful agreement with the proposition stated in these two decisions. 7. It will be necessary, therefore, to see the evidence in this case whether prim9facie the applicant has established that she is legally married wife of the non-applicant. The conduct and also the evidence of the non· applicant can also be taken into consideration for arriving at conclusion on this point. 8. A. W. 1 is the applicant herself. She states On oath that the non-applicant is her husband and she was married to him on April 2, 1970 at Rajabax Maroti temple. This was so according to their consent. There were Panchas present at the time of the marriage. The non-applicant has purchased a sari and a blouse piece and Jodwe for her. Antarpat was also held and thereafter there was a katha. She names certain persons and also gives the time of the marriage. She asserts that thereafter she and the non-applicant lived together in a house on Dassera Road for about 7 to 8 months and the non-applicant thereafter left. She admits that though she had parents, they had no knowledge about this. The applicant and the non-applicant decided to marry. This decision was taken couple of days earlier to marriage. She was not remembering the name of the person who recited Mangal on that occasion. She asserts that Antarpat was there and it was non-applicant who had brought flowers. The katha was of Shri Satyanarayana. All the material required was brought by the non-applicant and the Poojari of the temple performed the ceremony. She also asserts that thereafter from Shiv Photo Studio, a photograph was taken by both the husband and the wife. She has also struck to her oath regarding her pregnancy from the non-applicant. If the cross-examination is closely perused, it is clear enough that no question has been asked about the Saplapadi or Homa., On the other hand, the question about ceremony was asked and the witness has asserted that the Poojari of the temple had performed all the ceremony. She has also struck to her oath regarding her pregnancy from the non-applicant. If the cross-examination is closely perused, it is clear enough that no question has been asked about the Saplapadi or Homa., On the other hand, the question about ceremony was asked and the witness has asserted that the Poojari of the temple had performed all the ceremony. In the normal course, if no questions of the kind upon which reliance was placed by the learned trial Judge were even put in cross-examination, the presumption is that the oath was not questionable and was sufficient to hold that the marriage ceremony took place in accordance with the law governing such marriage. 9. A. W. 2 Pandurang knows both the parties and says that he know! non-applicant as the husband of the applicant. He also knows that they were married. He further knows that they were married. He further knows the place of marriage and was present then. He speaks of a Brahmin reciting Mangalashtak. In cross-examination he states that he does not know the form of marriage in Koshti people. In the marriage Antarpat was held. Mangalashtak were recited. Bride and bridegroom garlanded each other. They sat for pooja. Nothing is asked of him whether there was Homo or Saptopadi although he asserted that he was present at the time of marriage. The witness states that after marriage he saw both the husband and the wife residing together on Dassara road. A, W. 3 Vishnu is a photographer. He has produced the negative copy of the photograph. He took oath and stated that the couple had come to his photo studio. The non-applicant before the Court took the photo copies. 1 he negative is Ex. 14. The look at the photograph and the negative clearly shows that the applicant was wearing Mangalsutra. She is sitting by the side of the non-applicant, caring Mangalsurra. The applicant herself took oath that this photograph was taken in the month of October after their marriage. This is a valuable piece of evidence which speaks for itself and supports the case of the applicant. A. W. 4 Arjun is the P. S. 1. Ganeshpeth police station and to whom the applicant had complained that her husband, i. e., the non-applicant was neglecting her and ill-treating her. That was in the month of November 1970. This is a valuable piece of evidence which speaks for itself and supports the case of the applicant. A. W. 4 Arjun is the P. S. 1. Ganeshpeth police station and to whom the applicant had complained that her husband, i. e., the non-applicant was neglecting her and ill-treating her. That was in the month of November 1970. The complaint made to the police authority styling the non-applicant as the hush and has also some relevency. It may be mentioned that there is absolutely no cross-examination of this witness. A. W. 5 Gulab, another person who was present at the time of marriage, also took oath to that effect. He supports the evidence of the applicant on the broad features of the marriage. In the cross-examination he dearly states that antarpat was held and Mangal took place. The parties garlanded each other. There were pheras around the sacred fire. No question is asked about Saptapadi. He also states that after the marriage, the parties resided in a house near his house for about 4, 5 months. He stoutly denied the suggestion that there was no marriage at all. To counter this evidence, nothing has been brought forward on behalf of the non-applicant. 10. N. A. W. 1 Laxmans statement if closely considered, it gives a clear impression that he is not a man whose word can be relied upon. He says that he knows the applicant. She was residing in his neighborhood and is knowing her since about two years. She is not related to him in any manner. In take second paragraph of the examination-in· Chief he takes a somersault and says "I even do not know her. It is also not correct that she was bearing a child from me." In the first paragraph of the examination-in-chief his oath is that he was knowing the applicant for about two years but presumably within a moment he changes and in the very second paragraph goes on to state on oath that he even does not know the lady in the Court. In the cross-examination similarly there are total denials. He does Dot know when the applicant went to reside to Dassasa Road. He denied the fact of residing together with the applicant. He denies the fact that he had taken a photograph with the applicant. He denies the lady in the photograph to be Vithabai. In the cross-examination similarly there are total denials. He does Dot know when the applicant went to reside to Dassasa Road. He denied the fact of residing together with the applicant. He denies the fact that he had taken a photograph with the applicant. He denies the lady in the photograph to be Vithabai. When further pursued, he simply avoids the knowledge about the lady and says I do not know who is the lady and how the photograph was drawn." He does not remember whether he replied the notice. He admits that his family has a house in Timki Bazar. He denies that he has any plot at Khaparkheda. He denies that Vithabai has got a son from him. The evidence of Lax man (non-applicant) is thus wholly unsatisfactory. It appears that he is telling patent falsehood. Firstly, he is not even trying to disclose who the lady in the photograph is when he is posed with her and when there is positive proof in this case that he went to the photo studio and had taken that photograph with the applicant. Thus, no credence can be attached to the word of such a man. 11. If the evidence of the non-applicant does not inspire any confidence in this case, it is clear enough that the evidence led by the applicant and her witnesses is trust-worthy. The evidence clearly establishes that there was marriage performed at Rajabax Maroti temple. There is no evidence to suggest that it was in any manner invalid. After the marriage the conduct of the parties clearly goes to prove that they acted upon it and lived as legally wedded husband and wife. They were so residing at Dassara road and they photographed themselves at Shiv Photo Studio and it is possible to believe that the applicant conceived during this period from the non-applicant. There is presumption that once the marriage is established, the child born during the period spoken by the applicant is from the said wedlock. The pregnancy and the delivery of the applicant do support her say in such matters. 12. The events brought out on record by the evidence led on behalf of the applicant show that there is ample material to come to the conclusion that the applicant is the legally married wife of the non-applicant. The pregnancy and the delivery of the applicant do support her say in such matters. 12. The events brought out on record by the evidence led on behalf of the applicant show that there is ample material to come to the conclusion that the applicant is the legally married wife of the non-applicant. To that extent therefore, the order of the learned trial Court will have to be set aside. 13. The next question is about the quantum of maintenance, as it cannot be disputed that the applicant stands deserted and is entitled to the provisions of section 488 of the Code. The learned Sessions Judge thinks that Rs. 75/- would be adequate maintenance for this lady who has now given birth to a child. The oath of the non-applicant is that he does not own any property. He is trying to run away not only from the lady who is obviously his wife but also from his responsibilities. Upon the evidence it is clear that there is a family house in which this non-applicant has One loom. He is a Koshti by caste. The evidence of A. W. 1 is that he earns about Rs. 10 j. per day. He has a shop by name Kamala Saree Stores at Walker road. This oath that he owns a shop has not been denied by the non-applicant in his evidence. In fact, as I have indicated above, it will be, therefore, safe to accept the evidence given by Vithabai to support her claim for maintenance. The question, however, in this case being only a claim for applicants personal maintenance, I think Rs. 50/- per month will meet the ends of justice. 14. While setting aside, therefore, the order of the 8th Court, it is held that the applicant has proved that she is legally married wife of the non-applicant and as such entitled to maintain an application under section 488 of the Code. The non-applicant is directed to pay monthly maintenance from the date of application at Rs. 50/. to the applicant as his wife, as in this case it appears that he had left her and he is not willing to keep her. The reference is, therefore, accepted and the order of the trial Court is set aside. An order in the above directions to issue. Reference accepted.