Chellammal vs Angamuthu and Others

Ratnavel Pandian, J.—The appellant was the complainant in C. C. No. 236/73 on the file of the Additional First Class Magistrate II,

Madurai. The appellant, Chellammal, has preferred this appeal challenging the legality and propriety of the judgment of the learned trial Magistrate

acquitting A.I of the offences punishable u/s 494, I. P. C, read with Section 17 of the Hindu Marriage Act and A. 2 to A. 9 u/s 494. IPC read with

Section 109, IPC and Section 17 of the Hindu Marriage Act.

It may be noted here that at the time when this appeal was admitted, it was admitted only as against respondents 1 and 2 and the appeal was

dismissed as against the rest.

The facts which led to this criminal appeal, in brief, are as follows -The appellant instituted this criminal complaint against the respondents on the

allegation that she is the legally wedded wife of the first respondent (Angamuthu) their marriage having been performed as per Hindu rites and

custom about 8 years ago, i.e. on 9-7-1965 at Kallorani village, and that the said marriage is still subsisting. According to her, they belong to the

Vellala Community and they do not have the customary right of dissolution of marriage. Out of the wedlock, a girl was born to the appellant

through the first respondent and the girl was aged about 2 years on the date of presentation of the complaint.

While so, contrary to law and caste custom the first respondent Angamuthu contracted as second marriage with the second respondent,

Ponnumayil Ammal, on 6-9-1973 in the temple of Sri Meenakshi Amman at Madurai. The other respondents also took active part in the

celebration of the marriage between the first and second respondents, having fully known that the marriage between the appellant and the first

respondent is still subsisting. The complainant in support of her case examined six witnesses (P. Ws. 1 to 6) including herself, and marked Exhibits

P.I to P. 4. Of the witnesses, P. W. 1 would speak about her marriage with the first respondent and birth of a child to her through her husband (the

first respondent) about 2h years ago and about the subsistence of the marriage between them. She would further state that she came to know from

her father Solamalai Pillai (P.W. 2) that the first respondent married the second respondent abetted by the other respondents in Sri. Meenakshi

Amman Temple at Madurai. P. W. 1 was not cross-examined before the charge was framed. But at the request of the accused she was further

cross-examined after the charges were framed against them. P. W. 2, father of the appellant, would depose that his daughter (appellant) was given

in marriage to the first respondent and the said marriage was solemnised by P. W. 6, Srinivasa Iyengar and both of them were living together for

eight years and that a child was born out of the wedlock and the marriage is still subsisting. He would further state that after coming to know that

the first respondent had married the second respondent on 23rd of Avani, he went to Sivaganga and got it confirmed that the information was true,

and thereafter he went to the temple and took a certified copy of the marriage register from the temple and returned to the village on Saturday.

Respondents 1 to 9 also returned to the village on the next day only in the bus in which he travelled. Subsequently he caused the notice through his

Advocate to be served on A.I to A. 5, but there was no reply from any one of the respondents. Ex. P.I dated 14-9-1973 is a copy of the notice,

Ex. P. 2 is the original of the marriage register kept in the temple evidencing the marriage between the first and second respondents. As there was

no reply from the respondents, according to him, this complaint was filed on 17-9-1973. He proves the signatures of respondents Nos. 1, 2 and S

and 9 in Ex. P. 2. Ex. P. 3 is a true copy of Ex. P. 2 issued by the temple authorities. This witness also files Ex. P. 4 showing the income and

expenditure during the marriage between his daughter P. W. 1 and the first respondent in the year 1965. P. Ws. 3 to 5 claim that they have

witnessed the marriage between the first and the second respondents in the temple. P. W. 5 is a Purohit who swears that he was the person who

solemnized the marriage between P. W. 1 (appellant) and the first respondent about eight years back as per the custom of the community. The

accused when examined in the light of the evidence adduced in the case totally denied that any marriage took place between P. W. 1 and the first

respondent in 1965 as alleged, but they would admit the celebration of the marriage between the first and the second respondents in Sri Meenakshi

Amman Temple on 6-9-1973, Therefore, the point for determination in this case is whether the alleged marriage between P. W. 1 and the first

respondent is true, and whether the said marriage is still subsisting.

The trial Magistrate who held that there is no doubt that A.I and A. 2 got married in the temple of Sri Meenakshi Amman came to the

conclusion that the prosecution has not proved the factum of marriage between P. W. 1 and A.I and consequently acquitted all the respondents of

the offences with which they stood charged. Since the appeal is admitted only in regard to respondents Nos. 1 and 2 (A.I and A. 2), I am

restricting the consideration as against A. 1 and A. 2.

Mr. Subbiah, learned counsel appearing for the appellant filed a petition for reception of certain documents contending that there are

documentary evidence to establish the fact that the appellant was given in marriage to the first respondent and that the said marriages still subsists.

Having regard to the nature of the offence and the serious consequences that occasioned in this case due to some inadvertence on the part of the

appellant to file these documents. I directed the Chief Judicial Magistrate, Madurai to record further evidence from both sides in support as well as

against the contention of the appellant that she is the legally wedded wife of the first respondent. Accordingly, the learned Magistrate recorded the

evidence and sent the entire evidence to this Court. The appellant in support of her conten- tion has summoned P. W. 2 and re-examined him and

further examined five more witnesses who are now numbered as P. Ws. 7 to 11 (P. Ws 2 to 6 in the C. M. P. preferred before the Lower Court).

In order to give an opportunity to the respondents Nos. 1 and 2 to explain about the incriminating piece of evidence and the circumstances

appearing against them and the evidence adduced on remand, both the respondents were summoned to this Court and they were examined. Both

of them would totally deny the factum of the first marriage between P. W. 1 and A. 1. The further evidence of P. W. 2 and the evidence of P. Ws.

7 to 11 recorded by the Chief Judicial Magistrate on remand, would further go to show that the second respondent had given birth to a son who is

now one year old. Generally they have stated that they have not committed any offence as alleged.

Now we shall consider the evidence let in by the appellant in support of her case that she is the legally wedded wife of the first respondent. P.

W. 2, her father, would state in the further examination that he filed a civil suit against the father of A-1 viz., Subramania Pillai in the District

Munsif''s Court, Sivaganga for the recovery of a sum of Rs. 100/- borrowed on a pronote which note was executed by the said Subramania Pillai

in favour of P. W. 1, and that P. W. 2 got it made over to him. He instituted the suit through his advocates Thiru Alagu and Thiru Muthukamakshi

under whom P. W. 7 was working as Vakil Gumastha. He would further say that he got a decree in that suit and recovered the amount by

executing the decree. He flies Ex. P-5 the copy of application filed in court for obtaining the records in the said case. But as the original records

have been destroyed he could not get the copies. However, he files Ex. P-6, a copy of the suit register. Ex. P-8 is the manuscript copy of the

pronote said to have been executed by the father of the first respondent in favour of P. W. 1 and Ex. P. 9 is the copy of the plaint filed in the suit in

S. C. No. 389/68. These two documents Ex. P-8 and Ex. P-9 are marked by P. W. 7, the vakil gumastha. P. W. 2 would rely on the recitals in

that document (Ex. P-8) whereby P. W. 1 is described as the wife of the first respondent by the executant viz., the father of the first respondent.

So far as that document is concerned, it is true that the original of the pronote is not filed as it is stated to be not available. But Ex. P-6, a certified

copy of the suit register relating to small cause suit No. 389/68 on the file of the District Munisf''s Court, Sivaganga would show the particulars of

the claim as...""claim for Rs. 118.75 being principal and interest at 6-1/4 per cent per annum due on a pronote dated 16-7-1965 executed by the

defendant (Subramania Pillai, Son of Neeiamegam Pillai) to plaintiff''s (Solayya Pillai''s) assignor Chellammal for Rs. 100.00 payable with interest

at 12 per cent per annum. The plaintiff got assignment on 20-6-68 for collection."" Thus this document clearly proves that P. W. 2 was the assignee

of the pronote and that the said pronote was executed in favour of Chellammal by Subramania Pillai.

The next question that would follow is whether the promise has been described as the wife of the first respondent. But this document does not

show that she has been described as the wife of the first respondent. But notwithstanding the fact that there is no mention in Ex. P-6 that

Chellammal is described as the wife of the first respondent, in the cross-examination it has been suggested to this witness that the recitals were

made so as dictated by P. W. l''s father, the assignee himself, and the signature of Subramania Pillai (first respondent''s father) was obtained

subsequently. During the course of cross-examination no suggestion has been made that there was no such recital in the said pronote that P. W. 1

was described as the wife of the first respondent. Therefore, when A-1 himself does not go to the extent of denying such allegations, I am of the

view that the evidence of P. W.- 2 and P. W. 7 cannot be easily brushed aside. This assumes importance in view of the fact that in the plaint copy

(Ex. P-9) itself which is marked in this case it is mentioned (Original in Tamil omitted). The only suggestion made to P. W. 7 is that Ex. P-8 and

Ex. P-9 are not the true copies and that they were prepared at the instance of P. W. 2. This random suggestion cannot, in my view, affect the

veracity of the evidence given by P. Ws. 2 and 7. If really Ex. P. 9 is not the true copy of the plaint in S. C. 389/68, the first respondent would

have produced the other copy of the plaint served on his father. So under these circumstances, I hold that P. W. 1 was described in the said

pronote as the wife of the first respondent. The other document on which the appellant wants to place reliance is Ex, P. 7. Ex. P. 7 is marked by P.

W. 2. This is an inland letter purported to have been written by the first respondent. But after going through the letter, I find that no signature of the

first respondent is found in that letter. Of course, this letter is addressed to P. W. 2. But as there is no sufficient proof that this letter was written by

the first respondent himself, I feel no reliance can be placed by any court of law to draw any conclusion on that. Mr. Subbiah himself would fairly

concede that this letter would mot be of any help to his client. So I do not propose to rely upon this letter.

The next important document is the birth register marked in this case as Ex. P. 10. P. W. 8 who is the Assistant working in the Sivaganga Joint

Sub-Registrar''s Office, II, would state that Ex. P. ]0 is the register of births during the year 1971 in the village Kalloorani, the village of P. W. 1.

P. W. 9 is the village munsif of village Kalloorani. According to him, he knows P. W. 1 and the first respondent as they are the wife and husband

respectively and he attended their marriage which took place about ten years back, from the year 1976. He marks Ex. P. 10 and states that the

entry made for the date 25-3-1971 and marked as Ex. P. 11 is the entry relating to the birth of a female child to Chellammal through Angamuthu

and the said child was born on 23-3-1971, and that he was the person who made the entry in Ex, P. 10. The original document now summoned

from the office of the Sub-Registrar very clearly indicates that a female child was born on 23-3-1971 in that village and the mother of that child

was one Chellammal and the father was Suba Angamuthu. This entry is made by this witness in his normal official duty. Mr. Subbiah would rely on

a plethora of decisions in support of the contention that entries in Birth Registers are public documents and are admissible u/s 35 of the Evidence

Act and such evidence can be relied upon. I think I need not swell this case by extracting the observations from all the decisions, but suffice it if I

mention some relevant decisions. In Bujhawan Singh and Others Vs. Mt. Shyama Devi and Others, , a Division Bench of the said Court has

observed that entries In birth and death register are public documents and are admissible u/s 35 Evidence Act, and that the ground of reception, of

such evidence is that it is the public duty of a person who keeps the register to make such entries after satisfying himself of the truth, and that entries

in register of birth, death or marriage are at least prima facie, though they may not be always conclusive evidence, and that it is not necessary to

prove who made the entries and what was the source of his information. The next decision relied upon is one reported in Brij Mohan Singh Vs.

Priya Brat Narain Sinha and Others, wherein the Supreme Court has observed that the reason why an entry made by a public servant in a public

or other official book, register, or record stating a fact in issue or a relevant fact has been made relevant is that when a public servant makes it

himself in the discharge of his official duty, the probability of its being truly and correctly recorded is high. The above principle is once again

reiterated in Ram Prasad Sharma Vs. The State of Bihar, . In Bishwanath Gosain Vs. Dulhin Lalmuni and Others, a Bench of the Patna High Court

pointed out that the entries in birth and death register are public documents and the said register being a public document, presumption of

correctness attaches to it and heavy onus lies on the party who wants to dispute the presumption.

If we scrutinize the document Ex. P. 10 in the light of the observations made above, it is clear to my mind that this entry cannot be challenged

by the respondent. This entry Ex. P. 10 has been made by P, W. 9 the village munsif during the course of his official duty. The authenticity of this

entry assumes importance when the said register itself has been produced not from the custody of the village munsif. but from the office of the

Registrar of Assurances. In my view, this entry will unequivocally and unambiguously prove that Chellammal lived with the first respondent as his

wife and gave birth to a child. P. W. 10 is the karnam of that village Kalloorani. He marks Ex. P. 12, the Voters'' list relating to Kalloorani village

of Tiruppuvanam Panchayat Union, Sivaganga Taluk. Ex. P. 12 is the corresponding entry at page 2 of the said voters'' list for serial numbers 76 to

In this, entry 76 gives the name of Subramania Pillai, son of Neelame-gam Pillai, who is the father of the first respondent. Entry 77 relates to

one Aru-mugam Pillai son of Subramania Pillai. Entry 78 is with reference to Angamuthu, son of Subramania Pillai and entry 79 relates to

Chellammal, wife of Angamuthu. These entries viz., 78 and 79, according to this witness, relate to the first respondent and P. W. 1. This witness

says that the Entry No. 77 is a wrong entry for the name Arumugam Ammal, it is printed as Arumugam Pillai. However, he is definite that entries

78 and 79 relate only to the first respondent and P. W. 1. He would further his evidence by saying that P. W. 1 is the wife of the first respondent

and both were residing in door No. 20. The only attack made against this witness is that he is related to P. W. 2 and that he is giving false

evidence. Barring that suggestion, nothing tangible has been brought out during the cross-examination to discard the evidence of this witness. P. W.

11 the Panchayat President of Kalloorani has stated that A-1 is his nephew and first respondent and his wife P. W. 1 were residing three houses

away from his house, and that he attended the marriage of the first respondent with P. W. 1. He has marked Ex. P. 13, the voters'' list of

Kalloorani village relating to the year 1970 whereunder entry number 72 relates to Subramania Pillai (Neelamegam Pillai); entry 73 relates to

Arumugam Ammal (Subramania Pillai); entry 74 relates to Angamuthu (Subramania Pillai) and entry 75 relates to Chellammal (Angamuthu). Thus

the voters'' list also would show that Chellammal was living with the first respondent as his wife. The first respondent has marked Ex. D. 1 through

P. W. 10. This Ex. D. 1 is the voters'' list of the same Kalloorani village for the year 1975. Entry No. 88 relates to Ponmayil (Angamuthu), that is,

Pon-mayil is shown as the wife of the first respondent. This Ex. D. 1 would go to show that the first and the second respondents were living

together as husband and wife after 1973. That they were married in Sri Meenakshi Amman Temple has been referred to earlier. In Thayammal Vs.

Muthuswami Gounder and Others, a Division Bench of this Court has observed that where the name of a person was found to have been entered

in voters'' lists of two villages, all that it would indicate was that the person would have lived in both the villages concerned at the time of

enumeration. In Kabul Singh Vs. Kundan Singh and Others, it has been pointed out that the entries found in the electoral roll are final and they are

not open to challenge before a civil court or before a Tribunal which considers the validity of any election. Then Mr. Subbiah placed reliance in yet

another Full Bench decision reported in Uma Sahuani v. Thakur Sahu AIR 1972 Cri 158. In this case the Full Bench of the Orissa High Court held

that electoral roll prepared under the Representation of the People Act is a public record within Section 35 and a public document within Section

74 (1) (iii) of the Evidence Act and is admissible in evidence as such and it is not necessary to call in evidence the author thereof or a person

supplying the information to prove the roll as its genuineness will be presumed under this section when it is produced before the Court. If we

scrutinise the evidence given by P. Ws. 10 and 11 and the documents Exs. P. 12 and P. 13 in the light of the decisions cited above, it is clear that

the first respondent and P W 1 were living together from the year 1966 to 1970. I may point out one more decision in this context. In Nagachari v.

Butchayya AIR 1948 Mad 1198 the following observations have been made:

But where it is established by evidence that a man and woman were not merely living together but professed themselves to be husband and wife

and were treated as such by the society in which they moved and this conduct and recognition extended over a sufficiently long period of time, a

presumption can well be. drawn in favour of marriage.

In the instant case there is abundant evidence to show that both the first respondent and P. W. 1 lived together for a considerable length of time as

husband and wife and as a result of this relationship and union a child was born to P. W. 1. It is very painful to note that the respondents (accused)

in order to get out of this criminal prosecution have gone to the extent of making uncharitable suggestion to P. W. 1 that she was having illicit

intimacy with her sister''s husband and as a result of such intimacy this child was born to P. W. 1 and that P. W. 1 in order to save her face in the

society has come forward with this false case at the instigation of her father and taking advantage of the previous negotiation of the marriage of P.

W. 1 with the first respondent that she is the wife of first respondent. For the foregoing reasons I hold that the appellant (complainant) has proved

her case that she was married to the first respondent and she lived with him for a considerable length of time and that she gave birth out of the

wedlock to a female child and that the marriage is still subsisting. Regarding the second marriage respondents 1 and 2 themselves have admitted

that they got married. Therefore, without any hesitation I come to the conclusion that the second marriage was solemnised while the first marriage

of the first respondent with P. W. 1 is still subsisting and thus both of them have committed the offence with which they are charged. Accordingly I

set aside the order of acquittal passed by the lower court in so far as it relates to respondents Nos. 1 and 2 against whom alone the appeal has

been admitted and allow this appeal.

In the result, I convict the first respondent and the second respondent (A-1 and A-2 in the trial Court) and sentence each of them to undergo

imprisonment till rising of the court and to pay a fine of Rs. 10/- each and in default to undergo S. I. for one week. Both the respondents shall

appear before the lower court to receive the sentence and pay the fine. Time for payment of fine ie one month from the date of receipt of this

judgment in the trial court.