A.R. Somnath Iyer, J.
1. This reference has its source in proceedings commenced Under Section 488 of the Code of Criminal Procedure, by one Venkayva, claiming to be the wife of one Channappa. Channappa who resisted the application filed by Venkavva for maintenance, pleaded that the marriage between him and Venkavva had become dissolved under a document executed by Venkavva on March 24, 1960. The Magistrate refused to investigate into the question whether there had been a divorce between Venkavva and Channappa and thought that until Channappa obtained a decree from a competent civil court that the marriage between him and Venkavva had become dissolved, Venkavva was entitled to ask the criminal court to make a decree for maintenance Under Section 488 of the Code of Criminal Procedure.
2. In this reference made by the Sessions Judge, at the instance of Channappa, it is pointed out by the Sessions Judge that the Magistrate could not have declined to make an investigation into the plea of divorce raised by Channappa.
3. With this view taken by the Sessions Judge, I entirely agree. Before an order for maintenance could be made in favour of Venkavva, the Magistrate to whom an application was presented Under Section 488 of the Code of Crimi- nal Procedure, had to find whether or not the plea of divorce taken by Channappa was a good plea. If, as contended by Channappa, the marriage between him and his wife had become legally dissolved by divorce, it was not possible for the Magistrate Under Section 488 to make an order for maintenance against Channappa. In an application presented Under Section 488 of the Code of Criminal Procedure, by a person claiming to be the wife of another, if the person against whom the application is presented contends that the person claiming maintenance is no longer his wife, the contention, if established, will put it out of the power of the Court to award maintenance Under Section 488 of the Code of Criminal Procedure.
Although an enquiry into that contention in a criminal case is bound to be not as thorough and adequate as it would be in a civil suit, and although a finding recorded in a criminal case on that question may not be binding on a civil court if the same question is raised before it, it is obvious that if a plea is taken that there has been a legal dissolution of the marriage by divorce, by a person from whom maintenance is claimed, the Criminal Court before which that contention is raised, cannot decline to investigate into that plea. By refusing that investigation, what the criminal court would in effect be doing would be to make an order for maintenance even without, in the first instance, finding, as it is bound to do, whether or not the marriage or the connubial state between the two spouses has been dissolved or is continuing. The foundation of a claim Under Section 488 in such circumstances, being the continuance of the connubiality, the refusal to enquire into the question would amount to a failure to1 exercise jurisdiction.
4. That being so, ordinarily, I would have been disposed to accept this reference and to quash the order for maintenance made by the Magistrate. But, I am not prepared to do so in this case. The reason why I take that view is this: Now, Channappa in this case, relied upon a custom in support of his case that, by the execution of divorce deeds, the marriage between him and his wife Venkavva could be legally dissolved. The only evidence he gave in support of that custom was that given by himself. I have looked into that evidence and 1 have come to the conclusion that the evidence given by him is quite insufficient to establish the custom upon which Channappa relied. The custom pleaded by Channappa should have been established by him by good and trustworthy evidence, such as the evidence of persons belonging to the community to which he belonged, who could give evidence of divorces having taken place in pursuance of such custom between the members of that community in the past. No such evidence was given by Channappa.
5. In that state of the evidence, I think, it is quite unnecessary to remit the matter to the Magistrate just so that he might record a finding on the question whether there was a divorce between Channappa and Venkavva, on the basis of the evidence already recorded, which, as already pointed out by me, is too exiguous, to justify the inference that there was a custom among the members of the community to which the spouses in this case belonged, In pursuance of which a divorce could take place between a husband and a wife by the execution of divorce deeds. In the view that I take, the order that I should make would be to refuse to accept the reference made by the Sessions Judge, and It is ordered accordingly.