Mallika and Another vs P. Kulandai

V. Kanagaraj, J.—The above criminal revision case has been filed against the order dated 10.1.1995 made in C.R.P. No. 122 of 1993 by

the Court of 1st Additional Sessions Judge, Salem thereby setting aside the order dated 16.7.1993 made in M.C. No. 10 of 1991 by the Court of

Judicial Magistrate No. 1, Sankari, wherein in an application filed u/s 125 of the Criminal Procedure Code, the Judicial Magistrate No. 1, Sankari,

has directed the respondent to pay a monthly maintenance of Rs. 250/- to the first petitioner and Rs. 50/- to the second petitioner till she attained

majority.

The petitioners'' contentions, in a nut-shell, are that the first petitioner got married to the respondent 4� years back according to the caste

customs and rituals; that even though the respondent had already been married to one Muthulakshmi and had a female child, he represented that

his first wife had passed away, in a clandestine manner, and got married with the first petitioner; that from out of such wedlock, the first petitioner

begot a female child, the second petitioner herein; that five months back, the respondent, demanding an amount of Rs. 5,000/- as dowry from the

first petitioner, had sent her out of home along with her child, resulting in her taking asylum with her parents; that the respondent is employed in

Food Corporation of India and was earning a monthly salary of Rs. 2,500/-; that the respondent is duty-bound to maintain the petitioners and since

he is having the capacity to pay the maintenance and since the petitioners are without any means of livelihood, they have demanded monthly

maintenance of Rs. 500/- and Rs. 400/- respectively .

On the contrary, the respondent would put up his defence denying his marriage with the first petitioner and further denying that he made false

representation that his first wife was dead. He would further contend that he got married with one Muthulakshmi in the year 1975 and she became

insane in 1980 and that the first petitioner became his servant in the year 1986. He would deny the allegation that he demanded a sum of Rs.

5,000/- from the parents of the first petitioner. He would admit that the first petitioner is without any means of livelihood; that on all deductions

made, he is getting a monthly salary of Rs. 714/- only, with which he has to support his aged parents, widowed sister and her children besides

taking care of the insane wife, that the first petitioner had stolen away the jewels weighing 25 sovereigns belonging to his wife Muthulakshmi and a

cash of Rs. 30,000/-; that mediation by Panchayatdars failed either to bring back the jewels or the money taken away by the first petitioner or

even to make her come back to him to render her service as earlier and would ultimately pray to dismiss the petition.

The Court of Enquiry would hold a thorough enquiry into the said application, during the course of which the first petitioner besides examining

herself as P.W. 1, would also examine two more witnesses, viz. Chittayee and Marimuthu as P. Ws. 2 and 3, in proof of her case and would also

mark one document as Ex. P1 and on behalf of the respondent, he would examine himself as R.W. 1 and no other witness was examined nor any

document marked on his behalf as exhibit.

The first petitioner as P.W. 1 would confirm what she has stated in her petition. P.W. 2, a lady and the neighbour of P.W. 1 would corroborate

the evidence of P.W. 1 saying that the marriage in between the first petitioner and the respondent was solemnized five years back at the residence

of the first petitioner according to the caste customs and rituals in the presence of hundred persons; that they got a female child aged about four

years; that the petitioners are living with the first petitioner''s parents for the last 1� years but she does not know the reason for their separate

living.

P.W. 3, the Assistant Depot Manager in the Food Corporation of India, would depose that the respondent is working in their office as Testing

Operator and drawing a monthly salary of Rs. 2,840/-.

The respondent, appearing as R.W. 1, would confirm what all he stated in his counter.

In Ex. P1 letter written by the respondent to the first petitioner''s father A. Nagarajan he would address him as father-in-law. In it, besides

disowning the responsibility for the separation of himself and the first petitioner and throwing the blame on the addressee and his daughter, the

writer would emphasize the addressee to come and leave his daughter with him.

The Court of Enquiry, in consideration of all these aspects and discussing each and every aspect of the case and greatly relying upon the

evidence of P.W. 2 regarding the marriage that had taken place in between the first petitioner and the respondent and further commenting that the

contentions of the respondent that the first petitioner had stolen away jewels weighing 25 sovereigns belonging to his wife Muthulakshmi and cash

of Rs. 30,000/- are false, since no complaint had been lodged against such an act said to have been committed by the first petitioner and further

not trusting the contention of the respondent that the first petitioner was his servant-maid and placing reliance on Ex. P1 letter and its contents and

ultimately remarking that only marrying the first petitioner, from out of which, the second petitioner has been born and remarking that the

respondent is now putting up a false defence would order monthly maintenance of Rs. 250/- and Rs. 50/- respectively to the petitioners 1 and 2.

Aggrieved the respondent/ husband of the first petitioner preferred a revision before the Court of I Additional Sessions Judge, Salem, and the

said Court without proper discussion of the facts and circumstances of the case or the evidence adduced on the part of the witness or properly

appreciating the sole document marked as Ex. P1 would bluntly arrive at the conclusion that there was no marriage in between the first petitioner

and the respondent established by the petitioners and hence has decided that the Court of Enquiry had wrongly granted the maintenance and would

ultimately arrive at the conclusion to allow the revision filed by the respondent, thereby setting aside the order of maintenance passed by the Court

of Enquiry.

Aggrieved the petitioners have now come forward to file the above criminal revision case on certain grounds as alleged in the memorandum of

grounds of revision.

On overall consideration of the facts and circumstances of the case, as put forth by parties, the evidence let in through P.Ws. 1 to 3 and R.W.

1, the document marked as Ex. P1 on the part of the petitioners and appreciating such evidence in the expected line of appreciation and having

gone through the orders passed by the Court of Enquiry and the Revisional Court below and upon hearing the learned

Counsel for the petitioners and the respondent, what comes to be established is that the respondent having got married with one Muthulakshmi in

the year 1975 and admittedly since she became mentally retarded in the year 1980, had married the first petitioner without disclosing the existence

of the first wife or the subsistence of the first marriage with the said Muthulakshmi and on misrepresentation that she was dead. From out of such

wedlock between the first petitioner and the respondent the second petitioner had been born to them. These facts come to be established not only

from the evidence of P. W. 1 which get well corroborated by the evidence of P.W. 2 who is the neighbour of P.W. 1, but also from the various

circumstances gathered from the materials placed on record particularly from the contents of Ex. P1.

It is the further case of the petitioners that the respondent, prior to his marriage with the first petitioner, had sent his first wife to her parents''

abode and without disclosing such facts but on false representation that she was dead, he got married with her and due to harassment of dowry

amount, the first petitioner had to leave the respondent along with her child. The relationship of the first petitioner and the respondent as wife and

husband, the reason for separation and the demand of the respondent with his father-in-law (father of the first petitioner) to bring and leave the first

petitioner with him are all further established from the letter marked as Ex. P1 and absolutely there is no iota of evidence muchless in a reliable

manner placed by the respondent against the strong case set up and proved on the part of the petitioners. The respondent has not only set up very

vague, weak and untenable defence that the first petitioner was his servant-maid without even explaining as to whom the second petitioner was

born or at least to show whether she got married to somebody else through whom the second petitioner could have been born, etc., but also he

thoroughly whom the second petitioner could have been warranted by law. No male master would write such a long letter to the father of his

female servant muchless addressing him as uncle or father-in-law to bring his daughter and leave her with him besides having a lengthy discussion of

the family affairs as patently seen from the contents of Ex. P1. Hence, the defence of the respondent becomes liable to be dismissed as false.

The big question that arises for consideration at this juncture is whether during the life-time of the first wife, the second marriage held in

between the first petitioner and the respondent could be validated in law ? The contention of the petitioners is that suppressing the fact of the first

wife living and on misrepresentation that she was dead, the respondent got married with the first petitioner and only, of late, just five days prior to

filing of the petition before the Court of Enquiry, the first petitioner came to know about the first wife of her husband living. This had to be accepted

since absolutely no iota of evidence is made available from any quarter contra to the effect that the first wife of the respondent was also living with

them, nor any attempt had been made on the part of the respondent in proof of the same. Hence, the reason attributed for the first petitioner

consenting to get married with the respondent has to be believed and accepted under such circumstances. After all, the marriage held in between

the first petitioner and the respondent could only be treated as a valid marriage, since the fact of the subsistence of the first marriage and her

suppressed on representation that she was dead. Under these circumstances, the marriage could only be treated voidable one, the option of getting

the same declared void is left with the first petitioner. As things stand for the purpose of the petition, it is held that there is a subsisting marriage in

between the first petitioner and the respondent and the second petitioner is their legitimate child.

However, for the purpose of Section 125 of the Criminal Procedure Code, the law is settled long back that the marriage in between the parties

though plays an integral part in deciding the question of maintenance, even if the marriage strictly does not come to be proved, it is sufficient if

evidence is available to the effect that the parties have lived together for a considerable time. As such, since it is established that the first petitioner

had been living with the respondent for a considerable period and continuously so as to give way for the second petitioner to be born, this status of

the first petitioner itself is sufficient for the grant of maintenance not only for her but also for her child the second petitioner. Therefore, it is held that

the first petitioner is the wife of the respondent and the second petitioner is their legitimate child and the respondent is duty bound to maintain them.

Therefore, the only question that is to be decided next is whether the petitioners are incapable of maintaining themselves and on the contrary,

the respondent is having the capacity to maintain the petitioner to the extent that is sought for ? It is admitted by the respondent himself that the

petitioners have no means of livelihood. P. W. 3, the Assistant Depot Manager of the Food Corporation of India wherein the respondent is serving

as Testing Operator, has deposed that the respondent was drawing a monthly salary of Rs. 2,850/-. This amount, which is the monthly salary of

the respondent is a little more than thrice the amount of monthly maintenance claimed by both the petitioners and a considerable amount of

maintenance could be awarded in favour of the petitioners especially in favour of the second petitioner since the amount of Rs. 50/- allowed by the

Court of Enquiry is inconsistent and meagre. But, since no step has been initiated on the part of the second respondent claiming enhancement of the

maintenance amount. I am not able to consider the same. Considering all these facts and circumstances, the Court of Enquiry has granted monthly

maintenance of Rs. 250/- and Rs. 50/- to the petitioners 1 and 2 respectively.

In the result, this criminal revision case is allowed setting aside the order dated 10.1.1995 made in C.R.P. No. 122 of 1993 by the Court of I

Additional Sessions Judge, Salem. The order dated 16.7.1993 made in M.C. No. 10 of 1993 by the Court of Judicial Magistrate No. 1, Sankari,

is hereby restored.