Divyanathan vs Jayarani and Another

M.N. Moorthy, J.—These two revision petitions are filed against the order of the learned Judicial First Class Magistrate, Deva kottai, in M.C. No. 166 of 1981, made under S. 125 Crl.P.C.

On a petition filed by Jayaiani, (P.W.1) under S. 125, Crl.P.C., before the learned Magistrate claiming maintenance for herself and her minor child Inbanathan from husband Divyanathan (R.W.1), the Magistrate, rejecting the claim of P.W.1 on the ground she is not the wife of R.W.1 awarded maintenance to Inbanathan.

Crl.R.C.589 of 1982 is filed by R.W.1, against the order making him liable to pay Rs. 75 per month as maintenance to the minor child. Crl.R.C.774 of 1982 is filed by P.W.1 against the order refusing to award maintenance amount to Rs. 100 per month to her minor child as claimed.

The relevant facts to dispose of these two petitions are as follows-P.W.1 instituted a petition under S. 125, Crl.P.C, claiming that on 18th June. 1980 she married R.W.1 in the Ayyannar temple in Attur village according to the Sayamaryadhai form of marriage. A child was born out of this wedlock. She claimed maintenance of Rs. 200 per month for herself and Rs. 100 per month for the child, as R.W.1 refused to live with them, taking advantage of getting better offers to marry. R.W.1 resisted the claim petition on the ground that he was not married to P.W.1 and the child born to her was not his.

P.W.1 before the Magistrate examined nine witnesses to prove her claim. According to her, she was on intimate terms with R.W.1, two years prior to the actual marriage with R.W.1, His parents were against the marriage. Hence, on his request, she agreed for the Suyamaryadhai form of marriage which was celebrated on 18th June, 1980 at the Ayyarar temple in Attur village in the presence of P.WS. 2 to 4. They exchanged garlands and thali was tied round her neck. Subsequently, both of them went to the house of P.W.5, at Kiliyur and lived there for five months as husband and wife. When she was in her fifth month of pregnancy, she was brought to her parents'' house and left there. R.W.1 said he would pacify his parents to agree for P.W.1 being taken to house. On the 5th of Panguni, she delivered child and R.W.1 named him Inbanathan. On the pretext that his parents were in search of better offers for him, R.W.1 neglected P.W.1 and the child and they were not taken to his house though he was on visiting terms when P.W.1 was living in her parents'' house. When P.W.1 went to R.W.1''s parents'' house, she was driven out. She preferred a complaint to the police but no action was taken on it. She mentioned this fact to P.WS. 2 and 3. They enquired R.W.1, who stated he was going to marry another girl. R.W.1 refused to take P.W.1 and she was asked to seek her remedy in a court of law. According to her, R.W.1 owns 5 acres of land and he also does business in bricks, fetching a monthly income of Rs. 800.

P.W.2 belongs to Attur village. According to him, R.W.1 stated he was willing to marry P.W.1, but his parents were against it and hence requested him to help him in the matter. The marriage was celebrated in the Ayyanar temple in Attur village and P.W.1 was tied a thali by R.W.1. There was exchange of garlands also. This is corroborated by P.WS. 3 and 4. P.W.5 of Kiliyur and P.W.6 of Maruthavayal also testified to the fact of the marriage by tying thali and exchanging of garlands. P.W.5 would further have it after the marriage, the bridal couple lived in his house in Kiliyur for five months. This is spoken to by P.W.5 also.

P.W.7, father of P.W.1, deposed that he came to know of the marriage, after ten days of the ceremony. After five months, his daughter was brought by R.W.1 and left in his house when she carrying. A child was born to his daughter. R.W.1 refused to take his daughter and the child. P.W.7 then preferred a complaint to the police.

P.W.8 is the Sub Inspector of Police, Thiruvadanai. On 3rd August 1981 P.W.1 preferred a complaint which was registered as Crime No. 70 of 1981. As it was non cognisable, the case was referred.

P.W.9 is the camp supplier of Ayyanar temple. He speaks to the marriage register entry dated 4th June 1981. Ex.P.2 is the receipt for Rs. 14 paid for the marriage.

R.W.1 examined three witnesses a part from himself in support of his case, According to R.W.1, he and P.W.1 belonged to Roman Catholic community. Marriages in that community should be celebrated in a church. First, the consent has to be given to the priest. After consent, it would be entered in the register. He denied having married P.W.1 at the Ayyanar temple in Attur village. There was no Suyamaryadhai form of marriage celebrated. They never lived In P.W.5''s house as husband and wife. P.W.1 was not taken to P.W.5''s house when she was pregnant. He and his parents never drove out P.W.1. The child born to P.W.1 is not his, but Jagannathan''s. This was conveyed to P.W.7. P.W.7 convened a Panchayat. R.WS. 2 and 3 were present during the panchayat. Jagannathan denied he was the father of P.W.1'' s child and stated he had no connection with P.W.1. After five months of the Panchayat, P.W.7 asked R.W.1 to marry P.W.1 and threatened him. He preferred complaint to the police and no action was taken on it. P.W.1 delivered a child even before getting married. This case has been foisted to see that he marries P.W.2. He does not own any property and his monthly income is not Rs. 800. There was no registration of birth of the child born to P.W.1. The child was born in a hospital and as the child was born illegitimately the birth could not be registered.

According to R.W.2, P.W.5 is the father of six children. P.W. 5 is related to him and lives opposite to his house. There was no marriage celebrated between P.W.1 and R.W.1. He attended the Panchayat convened at the request of P.W.7, stating that Jagannathan had given a child to his daughter P.W.1. When Jagannathan was questioned, he denied having any connection with P.W.1 and denied the paternity of the child. When a Panchayat was again convened after a few days, Jagannathan and his family failed to turn up.

According to R.W.3, he lives in Kiliyur and knows P.W.5 and lives very near his house. He is on visiting terms to P.W.5''s house. P.W.1 and R.W.1 never stayed with P.W 5. At the request of P.W.7, he attended the Panchayat where Jagannathan was questioned about the child born to P.W.1. Jagannathan denied having had any connection with P.W.1.

R.W.4 is the father of R.W.1. According to him, there was no marriage celebrated on 18th June 1980 between P.W.1 and R.W.1. In his community, no marriage could be celebrated according to custom of Suyamaryadhai form the marriage has to be celebrated in a church. He attended the Panchayat convened by P.W.7 where Jagannathan was questioned about the child born to P.W.1. Jagannathan denied the paternity of the child. P.W.1 was also present at the meeting. When the second Panchayat was held after a few days, Jaganathan failed to turn up. After 4 or 5 months, his son R.W.1 told him that P.W.7 had asked him torn my his daughter. 4 or 5 days later, a police complaint was given by P.W.1 which was later referred. As Jagannathan is a communist and powerful, no proceedings were taken against him but maintenance proceedings were initiated against them. He does not own any property. Only his father-in-law owns 4 acres of land. He does not own any cattle. This maintenance case was instituted only to see that P.W.1 got a husband.

The learned trial Magistrate found, on 18th June, 1980, there was a function as spoken to by P.WS. 2 to 6 between P.WS. 1 and R.W.1 and later their going to P.W.5''s house and living there for five months. But he found the ceremony is not enough to make P.W.1 and R.W.1, who belong to the Roman Catholic community husband and wife. Hence, R.W.1 was held not liable to maintain P.W.1. The learned Magistrate accepted the version of P.WS. 1 and 5 and P.W.6 that P.W.1 was living with R.W.1 in P.W.5''s house, for five months and when she was in her fifth month of pregnancy she went to her parent''s house where she delivered the child Inbanathan. As far as the paternity of the child Inbanathan was concerned, the learned Magistrate found R.W.1 was the father and awarded Rs. 75 per month as maintenance to the child.

Mr. A.R. Lakshmanan, learned counsel appearing for the petitioner in Crl.R.C.589 of 198'', (R.W.1) contended as there was no valid marriage between R.W.1 and P.W.1 or presumption, R.W.1 cannot be held to be the father of the child Inbanathan. According to him, there is no material for showing that R.W.1 had access to P.W.1 at all, at the time when the child was conceived. The finding that R.W.1 is responsible to maintain the child is wrong. When there was no valid marriage, as found in the present case, the nature of proof of liability to prove the paternity of the child is not to be taken as lightly as has been done by the court below. He also contended that the quantum of maintenance awarded to the child is excessive.

In support of his contentions, Mr. A.R. Lakshmanan drew my attention to the decision in Rev. C.R. Vedantachari Vs. Marie, wherein Wallace, J. while refusing maintenance to a mother, observed-

...1 ...Where the question at issue is, whether a certain man was the father of a certain child, it is prima facie improper to accept without corroboration, the mere statement on oath of the mother who asserts the paternity. Her evidence in such a case cannot but be highly interested, and it would be unreasonable and improper for any court to act merely on her own word without some independent corroboration of it.

Next, the learned counsel placed reliance on the decision in Prasad Gareri Vs. Mt. Kesari and Another, where the learned Judge observed-

It is prima facie Improper to accept without corroboration the mere statement on oath by the mother who asserts that a certain person, to whom she is not married is the father of the child. The burden is on the mother to establish the paternity of the child and to show that the person from whom she claims maintenance for the child is the father of the child before that person can be called upon to disprove the allegation of the mother.

To the same effect is the decision in Bhaskaran Vs. Kunhipennu, where the learned Judge held that the uncorroborated testimony of the mother of a child to prove paternity should not be countenanced.

Yet another decision on the same point in Durairaju v. Neela, 1976 L.W. Crl. 113 is placed before me. In that case, Ratnavel Pandian, J., held that it is for the mother claiming maintenance to show that the child was born to the alleged father and the circumstances of the exclusive relationship and the burden of proof is not upon the father of the child in such cases.

Learned counsel next placed reliance on the decision in Kunjuraman v. Syamala, 1970 M.L.J. Crl. 573 where the learned Judge observed-

The burden is upon the woman to establish the paternity of the child and to show that the person from whom she claims maintenance for the child is the father of the child. It is prima facie improper to accept without corroboration the mere statement on oath by the mother who asserted that the opposite party is the father of the child. The evidence of the wife shall be corroborated either by direct or some circumstantial evidence to establish that during the period when the wife could have conceived the child, the wife and the alleged father had some access to each other.

Coming to the case on hand, it is the evidence of P.W.1, that after the marriage on 18th June 1980, she along with R.W.1, proceeded to Kiliyur to the house of PW.5 and lived there as husband and wife for five months. When she was in her fifth month of pregnancy, she left P.W.5''s house to go to her parents'' house where she ultimately gave birth to the child Inbanathan. P.W.5 is a doctor and according lo him he attended the marriage of P.W.1 and R.W.1 that took place in the Ayyanar temple in Attur village. After the marriage, when permission was sought to allow the bridal couple to live with him he acceded to the request. For five months, they lived in his house as husband and wife. P.W.1 became pregnant and then she left for her parents'' house. P.W.5 seems to be a respectable person, living as a doctor, with his six daughters in Kiliyur. There is nothing elicited in his cross-examination to make one suspect his testimony. R.W.1''s version that P.W.7 convened a Panchayat to question Jagannathan about the paternity of the child born to P.W.1''s rightly rejected by the trial Magistrate. As regards the convening of Panchayat, there is considerable variation in the evidence. It is admitted Jagannathan is a young and unmarried man. There is no reason, if Jagannathan was the father of the child, why P.W.1 should omit him and pitch upon R.W.1 as the father. There is no basis that P.W.7 tried to palm off P.W.1 as the wife of R.W.1. In fact, when his daughter delivered a child and R.W.1 refused to take her, a complaint was given to the police and R.W.1 and P.W.1 had to come out on bail. There is no basis for alleging any intimacy between P.W.1 and Jagannathan. On the cogent and convincing evidence let in that P.W.1 lived with R.W.1 for five months in P.W.5''s house and became pregnant the paternity fastened on R.W.1 is beyond reproach. The cases cited by the learned counsel on behalf of R.W.1 are not of any avail to R.W.1, on the unimpeachable evidence that the parties were living together for five months as husband and wife. No doubt, there is no birth extract produced in the case. But that alone is not sufficient to throw out the case of P.W.1 and 5 and 6. In spite of the absence of the birth extract, it is proved that R.W.1 is the father of the; child Inbanathan and the maintenance awarded against him by lower court is correct.

As far as the quantum of maintenance is concerned, the learned Magistrate has accepted the version that R.W.1 comes from an affluent family having 5 acres of land and cattle and getting a monthly income of Rs. 800 from brick business. That the family owns lands is not disputed but it is claimed that it is owned by R.W.1''s mother. R.W.1 does not dispute the brick business he is doing but does not say how much is his actual income. On the facts of the case, the trial court was justified in accepting the financial status of R.W.1. The principle in awarding maintenance shall be neither penurious nor on an extravagant scale. In the case on hand, on good grounds, the learned Magistrate has found, having regard to all the factors, a sum of Rs. 75 per month awarded to the child Inbanathan is just and I see no reason to interfere with the same.

As regards Cr.R.C.774 of 1982, Mr. R.S. Venkatachari, appearing for the petitioners, contended the order of the trial court refusing to grant maintenance to P.W.1 on the materials placed before court is erroneous. P.W.1 and R.W.1 are Indian Christians and they had undergone the Suyamariyadhai form of marriage in the Ayyanar temple in front of respectable witnesses and thali was tied around the neck of P.W.1, and the bridal couple exchanged garlands. As the marriage is in the form of Suyamariyadhai the magistrate should have held P.W.1 to be the lawfully wedded wife of R.W. I for the purpose of maintenance. He further contended, the valid marriage between two Hindus performed in Suyamariyadhai or seertbirutha form will be a valid marriage also between two Indian Christians who are only Hindus converted into Christianity. It is open to two young Christians of age to hold themselves out as husband and wife by performing Suyamariyadhai form of marriage. Even if the marriage is performed in any one of the modes known to the community and when it is popularly accepted as a valid marriage, the woman is entitled to the status of a wife. For a claim of maintenance under S. 125. Crl.P.C., the marriage under S. 7-A of the Hindu Marriage Act is invoked. There is substantial and sufficient evidence on record to show that both P.W.1 and R.W.1 have lived together as wife and husband. As such, the mere fact that they are Christians would not deprive P.W.1 of her legal status of wife because the marriage was not performed in the Church and according to Christian rites. When the society at large recognises certain kind of marriage as valid, whether it is religious or not, the court of law cannot refuse to accept the same as valid.

Before I advert to the above contentions, it is also to be noted that an enhancement of the maintenance awarded to the child is also sought for in this petition. I have given my reasons holding, while disposing of Crl.R.C. 589 of 1982, that the maintenance awarded is adequate and need not be interfered.

Mr. R.S. Venkatchari stressed on the finding entered by the learned Magistrate that, on 18th June, 1980 at Ayyanar temple in Attur village, there was a certain form of marriage celebrated which would come under the suyamariyadhai form, wherein R.W.1 tied thali round the neck of P.W.1, and there was an exchange of garlands in the presence of witnesses. It should be noted that the parties belong to Roman Catholic community. Suyamariyadhai form of marriage is a valid marriage under the Hindu Marriage Act, 1955, as amended by Madras Act 21 of 1967. It is mentioning the obvious, to say that this kind of marriage is valid when the parties are Hindus. A number of decisions have been cited before me to support the contention of P.W.1, that she is entitled to maintenance as the legally wedded wife of R.W.1.

Firstly, the learned counsel relied on the decision in Govinda Nadar Sreedharan v. Ratna Bai alias Pushpa Bai 1978 M.L.J. Crl. 207, to show that a marriage between a Hindu and a Christian lady according to the custom of community is a valid marriage for claiming maintenance. In this case, there was no controversy between the parties that there was a customary form of marriage in the Nadar community and that there was a ceremony of the kind between the parties. Therefore, the fact that a Hindu and a Christian marrying under the customary form need not necessarily mean there could be no marriage. The marriage agreement had been executed and the parties were living as husband and wife and a child was born to them. The standard of proof required for a marriage in proceedings for maintenance under the Code of Criminal Procedure is no doubt not so high as is required in connection with proceedings like Indian Divorce Act or for prosecution for bigamy under the Indian Penal Code. But, in the instant case, two Roman Catholics entering into the suyamariyadhai form of marriage cannot be said to be a valid marriage. If it was under the Indian Christian Marriage Act, even Christians and non-Christians getting married, solemnised in accordance with the provisions of the Indian Christian Marriage Act (.Act 15 of 1872) was valid. Such is not the case as regards the marriage of R.W.1 and P.W.1 in the instant case. P.W.1 claims it was only under the suyamariyadhai form of marriage. Hence, this decision cannot be of any use to P.W.1.

Mr. R.S. Venkatachari relied on the decisions in Nanakchand v. G.K. Aggarwal, 1970 1 S.C.J. 176 = 1970 L.W. (Crl.) 39 and Bhagwan Butt v. Smt. Kamala Devi 1975 1 S.C.J. 143 for the proposition that the provision of law of maintenance provide a summary remedy and is applicable to all persons belonging to all religions and has no relation to the personal law of the parties.

For the wife to claim maintenance there should be a valid and subsisting marriage between the parties. No doubt, court will not require strict proof of marriage as in proceedings in a civil court, but merely living together as husband and wife for five months, as in this case, is a far cry from living as a legally wedded couple. It cannot be questioned that the right of maintenance does not depend on the personal law of the parties but it is a right which exists independently of it. If the evidence let in falls short of a valid marriage, the court is justified in refusing to award maintenance. As the law stands, only a wife is entitled to claim maintenance and a woman without attaining that status is precluded from seeking maintenance. Mere cohabitation does not raise a presumption that a marriage had taken place under one of the legal systems of law. On the discussions made above, the learned Magistrate was justified in holding that P.W.1 is not entitled to maintenance from R.W.1.

In the result, Crl.R.C.589 of 1982 for setting aside the maintenance awarded to the child Inbanathan and Crl.R.C.774 of 1982 claiming maintenance for P.W.1 and for raising the maintenance amount awarded to Inbanathan stand dismissed. The order of the trial court is confirmed.