Subramanian vs Selvi Alias Jebamalai and another

Arumugham, J.—This revision is directed under Ss. 397 and 401 of the Code of Criminal Procedure by the alleged husband by name

Subramaniam against the finding and order passed by the learned First Additional Sessions Judge, Coimbatore division, in Criminal Revision Case

No. 126 of 1986 on 8.12.1987, awarding a sum of Rs. 100/- each, payable by himself, as maintenance to the Respondents herein, who are his

alleged wife and son, and Rs. 1,000/- per annum towards clothing and medical expenses. The learned First Additional Sessions Judge while

hearing the above revision, reappraised the entire evidence recorded by the learned Judicial First Class Magistrate, Coimbatore, in M.C. No. 12

of 1985 rejecting the claim of maintenance made by the Respondent herein as contemplated u/s 125 of the Code of Criminal Procedure.

The case of the Respondents as culled out from the evidence recorded by the learned Judicial First Class Magistrate as well as the Petition in

extract is as under:

As per the Hindu Religious custom and the caste custom in the Karupparayan Temple situated near Thondamuthur in Coimbatore district, the

marriage of the first Respondent with the revision Petitioner was performed on 16.2.1982. Thereafter, both of them were happily living as husband

and wife and as a result of the said wedlock on 3.4.1983, the second Respondent, who is a minor, was born to them which was followed by the ill

treatment caused to both the Respondents by the revision Petitioner herein by insisting to get the money from the first Respondent''s parents. As

the parents of 1st Respondent were poor and were not able to cope with any money or means the first Respondent was not able to comply with

the wishes of the revision Petitioner, and subsequently, it is the case of the first Respondent, that both of them were driven away and from then

onwards the Respondents and the Petitioner were living separately. During December 1984, the first Respondent came to know that the Petitioner,

being employed as a Warden in the Central Prison, Coimbatore, was getting a salary of Rs. 750/- per month, that besides he has contracted a

second marriage and that therefore a sum of Rs. 200/- per month towards the maintenance of each of the Respondents and a sum of Rs. 2,000/-

per annum towards the cost of medical and cloth expenses, are required by the Respondents to be payable by the revision Petitioner.

In the counter statement filed by the revision Petitioner before the learned Judicial first Class Magistrate, the revised Petitioner has denied the

relationship of husband and wife between him and the first Respondent. He has stated that no marriage was solemnised at any point of time

between themselves, nor they lived happily as claimed. The revision Petitioner denies the very paternity of the second Respondent. Therefore, in

the context of said pleas, he claims that he is not liable to pay any amount towards maintenance of clothing or medical expenses as claimed, he

further stated that on 12.12.1984, he got married with one Shanthi, daughter of Manivelan of Mavadiyan Koil St, and since then onwards, he has

been living with her and as such there was no communication of any kind between himself and the Respondents herein. Accordingly, he prayed for

the dismissal of the maintenance claim.

P.W.1, the first Respondent, was examined and she gave evidence. During the course of evidence, she claimed that she was residing at

Vedapatty village and that the Petitioner is her husband and their marriage was preformed by the temple poojari in Karupparayan Temple situated

in Thondamuthur in Coimbatore district and that therefore a joint petition was filed by both the parties to the Sub Inspector of Police,

Thondamuthur where upon they got his blessings, and they then came to Poosaripalayam village, where they led the family life for a period of eight

months as husband and wife and that during that time the second Respondent was born. Subsequently, it was the claim of P.W.1 that the Petitioner

perpetrated cruelty and ill treatment upon her by pressing her to go to her parents'' house and get some money and she was not able to cope with

his demand and hence she was tortured and driven away alongwith the second Respondent herein by the revision Petitioner. She subsequently

stated that though the revision Petitioner was employed as a warden in the Central Prison, earning a salary of Rs. 750/ - per month, he has

discarded his wife, first Respondent herein, and he refused to maintain the Respondents herein inspite of his contracting a second marriage with one

lady by name Shanthi at Karur and therefore she had claimed the maintenance for herself and her minor son. The oral evidence of P.W.2, a mill

employee and resident of Vedapatty village, testified before the Court of Law is that he knew the revision Petitioner and the first Respondent as

husband and wife and their marriage was performed on 16.2.1983 at Karpagam Temple Kalyana Mandapam and that thereafter petition was filed

before the Sub-Inspector of Police, Thondamuthur, jointly by the parties to the marriage, and they thereby obtained blessings and he himself has

attested in the joint petition as a witness and that Ex.P.1 was the xerox copy of the petition filed to the Sub Inspector of Police. Of course the

xerox copy of this joint application has been marked by the learned trial Magistrate as ""subject to objection"".

Then the revision Petitioner was examined as R.W.1 and another witness Sam Chelladurai as R.W.2. The evidence given by R. Ws.1 and 2

projects only the verbatim denial of the claim by P. Ws.1 and 2 as claimed in the petition as well as before the witness box. R.W.1 admits the

contracting of second marriage with one Shanthi on 12.12.1984. This part of the total denial by the revision Petitioner has been corroborated by

R.W.2. Besides he claims a legal notice was given on 26.8.1983, a copy of which has been marked as Ex.R.l, to the first Respondent herein and

that, though it was served on her, she did not even reply the same nor has come forward with any counter case. Clinching the fact that there was

no marriage or legal relationship among themselves as husband and wife, the maintenance petition itself has been initiated by the first Respondent

only with a view to blackmail the revision Petitioner with an ulterior motive and therefore the claim for maintenance by the Respondents ought to be

rejected. R.W.2 subsequently denied that the Petitioner and the first Respondent lived as husband and wife at any point or time.

On appraising the entire evidence recorded by him and the documents relied on by both the parties, the learned Judicial First Class Magistrate

rejected the claim of both the Respondents on the ground that there was no ample proof to prove the relationship of husband and wife, more

particularly the validity of the marriage. The trial judge, considering the insufficiency of the legal evidence let in by the Respondents with regard to

the paternity of the second Respondent, also rejected the claim for maintenance from the Petitioner and accordingly dismissed the petition. Against

the order of the Judicial First Class Magistrate, a revision was filed before the first Additional Sessions Judge at Coimbatore division, and the

learned appellate Judge, on reappraising the entire documentary and oral evidence let in by both the parties, gave a clear finding that though the

alleged marriage between the revision Petitioner and the first Respondent on 16.2.1983 has not been provided under the Hindu Marriage Act or

the Special Marriage Act, the circumstances clearly spoken and established by the evidence tendered by the Respondents through Ex.P.1, a joint

petition submitted by them to the Sub Inspector of Police, Thondamuthur, clearly establish the fact that both the revision Petitioner and the first

Respondent got married and lived together for a considerable period of time as husband and wife at Poosaripalayam Village and during that

sojourn the second Respondent was born. Considering the fact that the revision Petitioner has denied the very factum of marriage itself and the

paternity of the second Respondent though he contracted a second marriage after driving away both the Respondents, and he refused to maintain

them, the learned appellate Judge set aside the order passed by the trial Magistrate, taking into account the evidence tendered with regard to the

means position of the revision Petitioner, the appellate court has directed the revision Petitioner, the appellate court has directed the revision

Petitioner to pay a sum of Rs. 100/- per month to each of the Respondents and a consolidated amount of Rs. 1,000/- per annum to both the

Respondents towards clothing and medical expenses. While observing and giving the above said finding, the learned Additional Sessions Judge

considered the aspect of the revision Petitioner being employed as a Warden in the Central Prison, Coimbatore and earning to the extent of Rs.

750/- per month as against the basic salary claimed by the revision Petitioner at Rs. 463/-.

Against the finding and order of the learned Additional Sessions Judge granting the maintenance to the Respondents herein as above, the present

revision is filed. The learned Counsel appearing for the revision Petitioner Mr. Arunachalam confined his arguments mainly with regard to the

marriage. He contended that though the learned trial Magistrate has found that there was no valid marriage between the revision Petitioner and the

first Respondent which has been proved or established, the lower appellate court misconstrued the recorded evidence of the parties herein on the

ground that there was a valid marriage, in view of the joint living by the first Respondent and the revision Petitioner herein, and to this extent the

order passed by the lower appellate authority is vulnerable for rejection. Consequently, the learned Counsel contended that at no point of time the

Petitioner and the first Respondent were living as husband and wife, and that even so the claim projected by the first Respondent that the second

Respondent was born out of the wedlock cannot be accepted and that therefore the quantum of maintenance ordered by the lower appellate Court

is not at all sustainable. The learned Counsel also contended that the reliance placed by the lower appellate court upon Ex.P.1, the xerox copy of

the complaint allegedly given by the revision Petitioner and the first Respondent to the Sub- Inspector of Police cannot be relied on, for want of

proof, and to that extent Ex.P.1 cannot be treated as secondary evidence in view of the specific provisions under Ss. 60, 61 and 62 of Indian

Evidence Act. He further contended that the original of Ex.P.1 could have been made available and the Sub Inspector of Police could have been

summoned and without doing so Ex.P.1 cannot be relied on.

Per Contra, Mr. V. Gopinath, learned Counsel appearing for the Respondent herein, countered the above said argument of the learned Counsel

for the revision Petitioner by stating that though Ex.P.1, the xerox copy of the complaint was marked of course ""subject to objection"" it having

been relied on by both the courts below and having been allowed to be marked, it cannot be resiled back. He submitted with regard to the

admission of this document that, as was observed by the learned Additional Sessions Judge, efforts were taken for the production of the original of

Ex.P.1 on more than one occasion but without success and allowing the secondary evidence in that context will give credence to the relevant

provisions of the Indian Evidence Act. Therefore the learned Counsel Mr. Gopinath contended that the xerox copy of the joint petition was rightly

marked as Ex.P.1 and was well considered by both Courts below. Mr. Gopinath further contended that the very contents of Ex.P.2 clearly

demonstrate the fact that even prior to the date of the said complaint it was manifest that both the revision Petitioner and the first Respondent were

living jointly for considerable time and that in anticipation of some mischief or danger from their respective parents, they thought of giving this

complaint after having solemnised their marriage in accordance with the caste and custom of Hindu religion, though they belonged to different

castes and so on the blessing from the Sub Inspector of Police who is the law and order enforcing authority in that region, they were satisfied and

they lived as husband and wife in a house for a considerable period of time that is eight months. The learned Counsel pointed out that P.W.1, the

revision Petitioner himself, has admitted the signature in Ex.P.1 but he has denied the contents of the same and that it was not the case of the

revision Petitioner that his signature was obtained by the first Respondent or anybody either under coercion, threat or any other circumstances and

in this context the learned Counsel argues that it was for the revision Petitioner to establish under what circumstances he happened to subscribe his

signature along with his wife as early as 1983.

Having considered meticulously the respective evidences and claims of the parties herein, I am able to identify the total truth let in by the first

Respondent, by producing Ex.P.1 namely the marriage performed between her and the revision Petitioner. The contents of Ex.P.1 go to show that

even prior to the solemnisation of the marriage on 16.2.1983, both were living together. It manifests further that out of some fear which developed

in their minds, both the parties though belonged to the same village but different communities, and anticipating danger from the hands of the villagers

or their parents, they thought of giving a joint petition to the law and order enforcing authority and getting his blessings to avoid any possible mishap

from the relatives and parents. It is further made clear that only after getting the blessings under Ex.P.1, they came to a different village by name

Poosaripalayam and lived together as husband and wife and during the said married living, the second Respondent was born. True, the first

Respondent has not produced any evidence to prove for the birth of the second Respondent either from the hospital or from the municipal

authorities May be it was due to her in ability to get the document which came into existence early as 1983 . But the mere fact that no certificate of

birth either from the municipal authority or from the hospital was got, it does not mean that the claim of the first Respondent is a totally false one.

It has to be noted that the plea of the revision Petitioner before the learned trial Magistrate is one of total denial as well as the denial of the very

paternity of the second Respondent. It is seen that he has admitted his signature in Ex.P.1 as above, but no explanation has been given by the

revision Petitioner. But a mere cursory reading of the contents of Ex.P.1 clinchingly proves and demonstrates the fact that the marriage between the

revision Petitioner and the first Respondent has been solemnised in the temple as claimed and subsequently Ex.P.1 was preferred jointly by

themselves for the blessings from the law and order enforcing authority. This followed by their joint living for a period of eight months in a different

village and other established circumstances, as clearly spoken to by P. Ws.1 and 2, whose testimony cannot be suspected, go to show that the

Respondents have made out a clear case for the claim as contemplated u/s 125 of the Code of Criminal Procedure.

However, the aspect of the tenability of the evidence of the parties herein, has been considered by lower appellate court in detail and on

perusing the same, I have not come across any materials or laches to dissent with the view and the findings by the learned Sessions Judge,

Coimbatore, in awarding the maintenance to both the Respondents herein.

Coming to legal aspects, as was concurrently held by both Courts below, that the alleged marriage between the revision Petitioner and the first

Respondent was not on par with the provisions of the Hindu Marriage Act or the Special Marriage Act, I may observe that this consideration

among the married parties has become unnecessary, under the circumstances, particularly in view of the solemnisation of the marriage in a temple

as spoken by P. Ws.1 and 2 and the joint living by the parties herein for a period of more than eight months as husband and wife, and the fact that

a male child was born out of their wedlock. Therefore, I may observe that a strict scrutiny for the proof of validity of the marriage as per the

provisions of either the Hindu Marriage Act or the Special Marriage Act, assumes, no significance in a matter where the Court has to decide

payment of maintenance to the wife and children as asked for and this is enough for a claim for maintenance u/s 125 of the Code of Criminal

Procedure. In such cases, the circumstances leading to the joint living by a male and female as husband and wife of a very considerable long time in

a separate house, the claim of performance or solemnisation of the marriage and the surrounding circumstances, and the result of the said marriage

to be considered by a Court of law. This is what is enumerated as ingredients in Section 125 of the Code of Criminal Procedure and in short strict

proof as to the legality or validity of the performance of a marriage is only an incidental thing and cannot be allowed to be the sole cause for

maintenance. It does not depend on the proof of the validity of the marriage as contemplated u/s 125 of the Code of Criminal Procedure.

In the light of the above legal ratio as was observed by the lower Court, I am fully satisfied to hold that the finding given by the learned

Additional Sessions Judge has come on par with the law and established procedure.

Accordingly, I hereby confirm the finding and order passed by the learned Sessions Judge passed in the above revision petition. In Saudamini

Dei v. Bhagirathi Raj (1982 CLJ 539), the Orissa High Court has observed as follows:

S. 125 provides a swift and summary remedy for providing maintenance to neglected wives, parents and children by compelling the man to

perform his moral obligation. In such a summary proceeding, while granting maintenance of the wife, it is not necessary to go into intricacies of law

to find if there is a valid marriage.

That for the limited purpose of Section 125 it may be inferred that there was marriage. The facts and circumstances of this case indicate that the

man and the woman lived together as husband and wife and were treated as such by the community and the man treated the woman as his wife.

The Panchayati Patra was his equivocal declaration.

Even in another decision in Govindan Nadar Sreedharan Vs. Retna Bai Pushpa Bai, the Kerala High Court has held as follows:

It may be that the Hindu Marriage Act, 1955 does not contemplate a marriage between a Hindu Male and Christian Female. At the same time, the

Christian Marriage Act, 1872 permits marriage between Christian and non-christians solemnised in accordance with the provisions of that Act.,

In view of this, where the marriage of Christian woman with a Hindu as conducted according to the custom of the community to which the parties

belonged and the parties were living together as husband and wife, the wife was entitled to maintenance. The fact that the Petitioner-wife and the

Respondent- husband followed different religions need not necessarily mean that there could be no marriage between them and that the Petitioner

would not get the status of a wife even after undergoing the ceremony of marriage. It was not necessary for the Court to consider whether the

ceremony fulfilled the conditions for a marriage under the Christian Marriage Act.

In the light of the above legal ratios made applicable to the facts of the instant case, I am unable to countenance the arguments advanced by the

learned Counsel for the revision Petitioner. Even with regard to the quantum of maintenance, as was justifiably contended by Mr. V. Gopinath,

learned Counsel for the Respondent it is not excessive in the present state of affairs, namely the pricing of the commodities prevalent at present. It

is admitted that the revision Petitioner is a State government employee employed as a warden in the Central Prison, Coimbatore, but having

contracted a second marriage now, he has doubled his difficulty. But even so that aspect does not mean that his first wife and the son born through

her have to be discarded on the ground of his lesser earning. Whatever it may be the law does not permit the married wife and the issue born

through her to be discarded by a man in any civilised country. Therefore having regard to the above norm in my mind and considering the quantum

of maintenance and the quantum of amount fixed by the learned Additional Sessions Judge towards clothing and medical expenses, I may observe

that they are not excessive as was rightly contended. Thus, having considered the entire evidence adduced by the respective parties herein, both

oral and documentary, I fully endorse the finding of the learned Additional Sessions Judge while ordering the maintenance and awarding amount

towards the clothing and medical expenses to be payable by the revision Petitioner. No other point was argued. Therefore, the revision petition

deserves no merit for consideration by this Court and nothing was made out to interfere with the finding of the lower appellate court.

In the result, the revision petition is dismissed and the order passed by the lower appellate court is hereby confirmed