N Criminal Appeal No  579 of 1986 From the Judgment and order dated 1541986 of the Bombay High Court in Crl
R Appln
No 160 of 1985
Rakesh Upadhyay MM Kashyap and NA Siddiqui for the Appellants
VN Ganpule SK Agnihotri and AS Bhasme for the Respondents
The Judgment of the Court was delivered by SHARMA J
The appellant No 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 the respondent No 1 Ganga Ram and that the appellant No 2 Maroti was born out of this wedlock
She claimed maintenance both for herself and for her son
Ganga Ram denied the marriage as well as the paternity of the appellant No 2
He also averred that he was already married twice before the wedding 790 pleaded by Bakulabai and that both his wives were living
The Judicial Magistrate accepted Bakulabai s case and granted maintenance at the rate of Rs 100 per month in her favour and additional Rs50 per month for the minor boy
Ganga Ram moved the Sessions Judge in revision
Bakulabai also filed a revision application for enhancement of the rate of maintenance
The two applications were 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 3973 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
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 the other 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 791 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
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 Ganga Ram 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 Ganga Ram was already married and his wife or wives were living on the date the marriage with the appellant Bakulabai is alleged the Magistrate did not record a categorical finding
According to the case of Ganga Ram 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 spouses in 1972 he could not have lawfully married a third time in view of the provisions of the 
The Judicial Magistrate rejected the plea by saying that the second marriage of the respondent with Kusumbai was on his own showing null and void as his first wife was then alive
Dealing with the effect of the first marriage he held that it was not as fact proved
Thus he got rid of the effect of both the marriages by adopting a queer logic
If the story of the first marriage was to be rejected the second marriage could not have been held to be void on that ground
The finding of the Judicial Magistrate on the validity of the marriage of the appellant was therefore illegal
We have by our judgment in Criminal Appeal No 475 of 1983 Smt
Yamunabai vs Anantrao Shivram Adhav and another delivered today held that the marriage of a Hindu woman with a Hindu male with a living spouse performed after the coming in force of the  is null and void and the woman is not entitled to maintenance under section 125 of the Code
Coming to the facts of the present case it appears that the respondent has satisfactorily proved his case about his earlier marriage with Kusumbai by production of good evidence including a certificate issued by the Arya Samaj in this regard
It is not suggested that Rajabai was living when Kusumbai was married and was dead by the time the appellant s marriage took place
The position which emerges therefore is that either the respondent s first marriage with Rajabai was subsisting so as to nullify his second marriage with Kusumbai in which case the appellant s marriage also was rendered null and void on that very ground or if on the other 792 hand the respondent s case of his marriage with Rajabai is disbelieved A the marriage of Kusumbai will have to be held to be legal and effective so as to lead to the same conclusion of the appellant s marriage being void on either hypothesis the appellant s claim is not covered by section 125 of the Code
She cannot therefore be granted any relief in the present preceedings
The decision to that effect of the High Court is R therefore confirmed
The other findings of the Magistrate on the disputed question of fact were recorded after a full consideration of the evidence an should have been left undisturbed in revision
No error of law appears to have been discovered in his judgment and so the revisional courts were not justified in making a reassessment of the evidence and substitute their own views for those of the Magistrate
See Pathumma and another vs Mahammad  Besides holding that the respondent had married the appellant the Magistrate categorically said that the appellant and the respondent lived together as husband and wife for a number of years and the appellant No 2 Maroti was their child
If as a matter of fact a marriage although ineffective in the eye of law took place between the appellant No 1 and the respondent No 1 the status of the boy must be held to be of a legitimate son on account of section 161 of the  which reads as follows 161
Notwithstanding that a marriage is null and void under Section 11 any child of such marriage who would have been legitimate if the marriage had been valid shall be legitimate whether such child is born before or after the commencement of the Marriage Laws Amendment Act 1976 68 of 1976 and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act
 Even if the factum of marriage of his mother is ignored he must be treated as an illegitimate child of the respondent on the basis of the findings of the Judicial Magistrate and is entitled to relief by reason of Clauses b and c of section 1251 of the Code specifically referring to an illegitimate child
We therefore hold that the order of the Judicial Magistrate allowing the maintenance to the appellant No 2 was correctly passed
The amount of Rs50 per month was allowed as the mainte 793 nance of the child in 1984
The revision application filed before the Sessions Judge was rejected
A second application before the High Court was therefore not maintainable
We will therefore assume that the decision assessing the amount of maintenance as Rs50 per month in 1984 became final
However on account of change of circumstances this amount can be revised after efflux of time
During the last four years the value of money has gone down due to inflation
The child has also grown in age
In the circumstances we direct the respondent Ganga Ram to pay the appellant No 1 the maintenance amount for appellant No 2 at the rate of Rs150 per month with effect from February 1988
The arrears up to January 1988 if not paid should also be paid promptly
The appeal is allowed in the terms mentioned above
GN Appeal allowed
GN Appeal allowed


Summary:
The question for decision in this appeal was whether a dispute raised by the workmen  relating to a person who was not a workman could be an industrial dispute as defined by section 2k of the  as it stood before the amendments Of 1956
The appellants who were the workmen of Dimakuchi Tea Estate espoused the cause of one Dr K P Banerjee Assistant Medical Officer who had been dismissed unheard with a month s salary in lieu of notice but who had accepted such payment and left the garden and the dispute raised was ultimately referred by the Government for adjudication under section 10 of the Act
Both the Tribunal and the Appellate Industrial Tribunal took the view that as Dr Banerjee was not an workman within the meaning of the Act the dispute was not an industrial dispute as defined by section 2k Held per Das C J and section K Das J Sarkar J dissenting that the expression any person  occurring in section 2k of the  cannot be given its ordinary meaning and must be read and understood in the context of the Act and the object the Legislature had in view
Nor can it be equated either with the word workman  or employee 
The two tests of an industrial dispute as defined by the section must therefore be 1 the dispute must be a real dispute capable of being settled by relief given by one party to the other and 2 the person in respect of whom the dispute is raised must be one in whose employment non employment terms of employment or conditions of labour as the case may be the parties to the dispute have a direct or substantial interest and this must depend on the facts and circumstances of each particular case
Applying these tests the dispute in the present case which was in respect of a person who was not a workman and belonged to a different category altogether could not be said to be a dispute within the meaning of section 2k of the Act and the appeal must fail
Narendra Kumar Sen vs All India Industrial Disputes Labour Appellate Tribunal  approved
Western India Automobile Association vs The Industrial Tribunal Bombay  distinguished 1157 Case law discussed
Per Sarkar J There is no reason why the words any person  in section 2k of the Act should not be given their natural meaning so as to include an employee who is not a workman within the meaning of the Act
Consequently a dispute concerning a person who is not a workman may be an industrial dispute within that section
The primary object which the Act has in view is the preservation of the industrial peace
The Act does not make the interest of the workmen in the dispute a condition of the existence of an industrial dispute
Such interest is incapable of definition and to make it a condition of an industrial dispute would defeat the object of the Act
Western India Automobile Association vs The Industrial Tribunal of Bombay  Narendra Kumar Sen vs The All India Industrial Disputes Labour Appellate Tribunal and United Commercial Bank Ltd vs Kedar Nath Gupta  referred to
Even assuming that the workmen must be interested in order that there can be an industrial dispute the present case satisfies that test and falls within the purview of section 2k of the Act