Johnson vs Jaya Pushparani and Others

M. Karpagavinayagam, J.—This revision by the husband is directed against the order made in M.C. No. 17 of 1993, on the file of Judicial

Magistrate No. 2, Pudukkottai, awarding maintenance to the wife/1st respondent herein at Rs. 300/- per month and to the minor son/2nd

respondent herein at Rs. 100/- p.m.

The wife filed me petition for maintenance in M.C. No. 17 of 1993, before the Judicial Magistrate No. 2, Pudukkottai, stating that both the

petitioner and the 1st respondent were living together as husband and wife, even prior to the marriage, which was performed on 23.10.1989 in a

Christian Church and registered with the Registrar of Indian Christian Marriages, Pudukkottai, and after the birth of the child, the 2nd respondent

herein, the petitioner/husband left the company of the wife and child and neglected to maintain them.

The petitioner/husband contested me said maintenance application, contending that there was no intimacy as alleged by the 1st respondent,

between them prior to the marriage, and he was not responsible for the birth of the child, that he was forcibly taken by the relations of the 1st

respondent, with the help of police and that the marriage was performed only under threat and coercion, and on that ground he filed a suit in Civil

Court for declaring the marriage as null and void, which is still pending.

The learned Judicial Magistrate, after considering the relevant materials produced by both the parties, had come to the conclusion, that the

marriage was solemnised in between the petitioner and the 1st respondent, and the 1st respondent is the legally wedded wife of the petitioner, and

the petitioner is the cause for the birth of the minor son/2nd respondent herein. Consequently, the learned Judicial Magistrate directed the petitioner

to pay maintenance to the respondents at the rate mentioned above. Aggrieved over the said order, the present revision has been filed by the

petitioner/husband.

Mr. S. Shanmugavelayutham, learned Counsel for the revision petitioner submitted that the procedures prescribed under the relevant Act, have

not been followed, while the alleged marriage was performed between the petitioner and the 1st respondent, and so, the said marriage cannot be

said to be valid in law. Learned Counsel also contended that since the suit filed by the petitioner before the Civil Court in the year 1989, for a

declaration that the marriage held between the petitioner and the 1st respondent is null and void, is still pending, the 1st respondent/wife cannot

claim any maintenance from the petitioner, till the above said issue is decided.

Per contra, Mr. T. Ayyasamy, learned Counsel for the respondents, submitted that these points have been elaborately considered by the trial

Court, and maintenance has been ordered on the strength of the decision reported in 1986 LW (Cri.) 399 (K.A. Panchapagesan v. K.V.

Sridharan), wherein it is held-that ""it is not necessary that the marriage should be established beyond reasonable doubt, and it is enough for the

Magistrate that a prima facie case is made out in order to afford the immediate and speedy relief to the suffering party u/s 125 Cr. P.C., while

leaving open to the aggrieved party the right to agitate his plea before the Civil Court.

Learned Counsel also submits that the validity of the marriage is to be decided only by the Civil Court. Placing reliance on the decision of the

Apex Court in Smt. Dukhtar Jahan Vs. Mohammed Farooq, , learned Counsel for the respondents would submit that though 1st respondent/wife

conceived even prior to the marriage and the child /2nd respondent herein was born within three months after the marriage, since the wife

conceived only due to the cohabitation with the petitioner, with whom the marriage was performed subsequently, the child must be a legitimate

child. The relevant observation of the Apex Court in the above referred to decision is as follows :

To drive home the point, we may refer to some of the reported cases where the Courts have applied the rule of evidence contained in Section

112 of the Indian Evidence Act and declared the legitimacy of a child born during wedlock, even though the child had been born prematurely. In

Mahbub Ali v. TajKhan, AIR 1915 Lahore 77(2), it was held that a boy born about 7 months after his father and mother were lawfully worried

and who had opportunity of access to each other at the time he could have been begotten, must be held to be the legitimate son of his parents. In

Khan Singh v. Natha Singh, AIR 1925 Lahore 414, the defendant''s father was married to the defendant''s mother on 2nd August, 1889 and the

defendant was born on 23rd January, 1890. Even so it was held ""that the defendant being born during the continuance of the marriage between his

parents, he is his father''s legitimate son unless it is shown that his parents had no access to each other at any time when he could have been

begotten and that it is immaterial how soon after the marriage the defendant was born. In (Syed) Sibt Mohammad Vs. Mohammad Hameed and

Others , it was held that Muhammedan child born during the continuance of a valid marriage between its parents but within 6 months of the date of

its parents'' marriage must be held to be a legitimate child by reason of Section 112 of the Evidence Act.

I have carefully considered the rival submissions made by the respective Counsel, the order of Court below and the relevant authorities cited by

the Counsel.

It is clear from the records, that the marriage was performed in the Church and the same was registered on 23.10.1989. According to the wife,

the 1st respondent herein, the child was born on 13.1.1990. The access between the petitioner and the 1st respondent, before their marriage, was

clearly established through the evidence of PWs 1 and 2, due to which, the 1st respondent/wife conceived, well before her marriage. These

aspects have been not only spoken to by PW1, the wife, but also by PW2, who is none other than the paternal uncle of the petitioner/husband. On

the basis of these materials, the learned Judicial Magistrate has come to the conclusion that the respondents are entitled to maintenance. When

these factual findings have been given by the learned Judicial Magistrate, on the meticulous analysis of the evidence, I am not able to persuade

myself to interfere with the same, in view of the decision of the Apex Court in the case of Pathumma and Another Vs. Muhammad, .

In the result, the revision fails and the same is dismissed, confirming the order of Court below.