Sumathi vs C. Pachiappan

P.R. Shivakumar, J.—The correctness and legality of the order of the learned Judge of the Family Court, Salem dated 13.07.2005

dismissing the maintenance case in M.C. No. 26 of 2003 filed by the revision petitioner on the file of the said Court u/s 125 Cr.P.C are challenged

in this Criminal Revision Case filed u/s 397 read with 401 Cr.P.C.

The revision petitioner herein had filed the maintenance case (M.C. No. 2 of 2003) on the file of the Family Court, Salem claiming maintenance

for herself contending that she was the legally wedded wife of the respondent herein. It was her further contention before the Family Court that the

respondent failed and refused to maintain her despite the fact that she was unable to maintain herself. The respondent resisted the claim of

maintenance without disputing the petition averments regarding the petitioner''s inability to maintain herself but denying her contention that she was

the legally wedded wife of the respondent herein. The parties went on trial and in the trial, the petitioner examined five witnesses including herself as

PW1 to PW5 and produced Ex.P1 to Ex.P8. On the side of the respondent, three witnesses were examined and no document was produced.

The learned Judge of the Family Court, Salem, considered both the oral and documentary evidence adduced on either side and upon such

consideration, held that the petitioner failed to prove her contention that she was the wife of the respondent and dismissed her claim for

maintenance. The above said finding is challenged in the present revision.

Mr. Ezliarasan, learned Counsel appearing for the petitioner argued that the learned Judge of the Family court disregarded the overwhelming

oral evidence adduced through PW1 to PW5 and the documentary evidence in the form of Ex.P3 to Ex.P8 and came to an erroneous conclusion

that the revision petitioner failed to prove she was the legally wedded wife of the respondent herein; that the learned Judge of the Family Court

erred in holding that PW.5 Devi was not the daughter of the respondent and that hence the order of the learned Family Court Judge should be set

aside.

Per contra, Mr. R. Subramanian, learned Counsel for the respondent, advancing arguments on behalf of the respondent, contended that the

learned Family Court Judge gave a correct finding on proper appreciation of evidence; that there was no scope for interference with the order of

the Court below by this Court in exercise of its revisional power and that the criminal revision case deserved to be dismissed.

This Court gave its anxious consideration to the submissions made by the learned Counsel on either side and also perused the materials available

on record.

As against the dismissal of the claim of maintenance made by the revision petitioner u/s 125 Cr.P.C. the present revision case has been filed.

The petitioner''s claim for maintenance was negatived by the Family Court not on the ground that the petitioner was having sufficient means to

maintain herself but on the ground that she failed to prove that she was the wife of the respondent. In fact, the respondent had not denied the

petition averments regarding the ability of the petitioner to maintain herself. On the other hand, the respondent had denied the very relationship of

husband and wife, the very foundation on which the claim had been made and the factum of marriage between the parties to the case. In the

absence of any admission to the effect that they lived under the same roof at any point of time, the onus is on the petitioner to prove the marriage

between herself and the respondent or at least their co-habitation under the same roof as husband and wife.

Now let us consider, the question whether the petitioner has discharged her onus of proving the said facts and whether the finding of the Court

below, in this regard, is either infirm or discrepant so that this Court can interfere with the same in exercise of its revisional power. As many as five

witnesses were examined on the side of the petitioner. PW1 is none other than the petitioner herself and PW5 is the daughter of the petitioner. The

so called independent witnesses examined on the side of the petitioner are PW2 to PW4. Admittedly, PW2 is closely related to the petitioner. His

evidence shall not be of much help to the petitioner to prove her case that she is the wife of the respondent. He has made a clear admission to the

effect that he had not attended any function held in the house of either the petitioner or the respondent; that he did not have any knowledge of the

marriage between the petitioner and the respondent and that he did not know even the address in which they resided together. PW2 was examined

to prove that about 3 1/2 years prior to the date of his examination, the respondent had been paying maintenance at the rate of Rs. 1000/- per

mensum for a period of six months to the petitioner and her daughter. However, during cross-examination, he admitted that he had no personal

knowledge of such payment and that his evidence in that regard was hearsay as he got the necessary information from the petitioner.

One Chinnamma and PW4 Lakshmi are the sisters of the petitioners. PW3-Mathiyalagan is the son of the above said Chinnamma. It is thus

obvious that PW3 and PW4 are also closely related to the petitioner herein. There is nothing in the evidence of PW3 and PW4 as to when and

where the marriage between the petitioner and the respondent took place. Except a bare statement that the father of the respondent is the father-

in-law of the petitioner, PW3 has not made any clear assertion that the respondent and the petitioner are husband and wife. Admittedly, at the first

instance, the petitioner was married to one Ganesan of Arasanatham Village in Attur Taluk. It is the case of the petitioner that the said Ganesan

died within a short time after the marriage and thereafter she married the respondent. But the petitioner, while deposing as PW1, was not able to

say even the year of her marriage with the said Ganesan.

PW4 simply stated that the marriage between the petitioner and the respondent took place in the year 1974, but did not elaborate where and

how the marriage was solemnised and she has not even stated that she had any personal knowledge of the co-habitation of the petitioner and the

respondent as husband and wife. She has been examined to show that the respondent was paying the petitioner and her daughter for six months at

the rate of Rs. 1,000/- per month and also gave the letters Ex.P3 and Ex.P4 to PW5 through PW4. Her evidence in this regard is not believable.

There are lot of material contradictions. It is not the evidence of PW4 that she made arrangements in her house for the meeting of the respondent

and PW5 and it is also not her evidence that PW5 and the respondent met each other in her presence. On the other hand, PW-5 the daughter of

the petitioner, would state in her evidence that after she received the letters Ex.P3 and Ex.P4 through PW4 she went to the house of PW4 and met

the respondent there and had a discussion with him. In this context, the evidence of PW4 is contra to that of PW5. According to the evidence of

PW4, though the respondent and PW5 visited her house in one and the same date, they paid the visits at different times. The same will go to show

that they could not have met. According to PW4 the visits made by PW5 and respondent were prior to the date on which Ex.P3 and Ex.P4 letters

were allegedly handed over by the respondent to her to be delivered to PW5.

On the other hand, it is the evidence of PW5 that only after she received the letters sent by the respondent through PW4 she went to the house

of PW4 where she met the respondent. Those two letters do not contain the signatures of the respondent. Curiously they contain the signatures of

the petitioner. Who advised her to put her signature in the said letters? For what purpose she did so?;-has not been explained. A thorough

consideration of the evidence adduced on the side of the petitioner will show that the petitioner has taken a new plea at the time of trial. In her

petition she has averred that those two letters were given to PW5 by the respondent through his friend. There is no evidence to show that the

friend referred to in the petition is PW4. As already pointed out, PW4 is none other than the sister of the petitioner. If at all it is true that those

letters had been sent through PW4, the same could have been stated so in the petition. It is quiet clear that an improvement has been made during

trial by introducing PW4-Lakshmi to show that it was through her the letters were sent. In addition to that a new case seems to have been put up

during the course of trial as if the respondent was paying maintenance at the rate of Rs. 1000/- per month to the petitioner and PW5 for a period

of six months. But there is utter failure on the part of the petitioner to substantiate the same. As already pointed out, PW2''s evidence is not

admissible as the same is hearsay in this regard. PW3 has stated nothing regarding the alleged payment. PW4 would say that only once the

respondent paid a sum of Rs. 1000/- to PW5 through her. On the other hand, PW5 in her chief-examination has stated that she was paid by the

respondent for about five months at the rate of Rs. 1000/- per month. In her cross-examination she has stated that for the first time she met the

respondent in Thalaivassal when her uncle identified the respondent; that at that point of time she was 25 years old and that thereafter she met the

respondent once in the house of PW4. The said evidence in comparison with the evidence of PW4 will falsify the petitioner''s new case developed

during trial that the respondent paid the petitioner and her daughter maintenance at the rate of Rs. 1000/- for about five or six months.

The only remaining evidence to be considered is the evidence of PW1. It his her assertion that the marriage with the respondent was

solemnised at Easwaran Temple at Tharamangalam in the year 1974. She has admitted that the temple authorities used to issue receipts for the

marriages solemnised in the temple and she has not chosen to produce the receipt issued by the temple authorities for her marriage. It is not her

contention that no receipt was issued for her marriage by the temple authorities or that the receipt issued by the temple authorities had been lost.

Even if it is so, the petitioner could have summoned the temple authorities and proved the factum of marriage. As she has not chosen to do so, the

trial Court has come to a correct conclusion that the petitioner failed to prove the factum of marriage alleged by her.

The documents produced by the petitioner are not enough to prove the factum of marriage and at best they can be accepted as the evidence to

prove the joint co-habitation. But a careful scrutiny of documents will show that the said documents have been issued based on the information

furnished by the petitioner. The documents relied on by the petitioner are Ex.P5-Family Ration Card, Ex.P6-Election Identity Card of the

petitioner, Ex.P7-Election Identity Card of PW-5, Ex.P8-transfer certificate of PW5. The learned trial Judge has correctly observed that those

documents are not sufficient to prove the marriage between the petitioner and the respondent as they are of recent origin. In fact, the age of the

petitioner and that of the respondent are furnished by the petitioner in the petition as 53 years and 50 years respectively indicating that the

respondent is three years younger than the petitioner. In the family card issued in 1998, the petitioner''s age is given as 53 where as that of the

respondent is given as 60 years. Admittedly, long prior to the issue of the said family card they were separated and the respondent was not living

with the petitioner during the relevant period for which the family card was issued. However, respondent is shown as one of the members of the

family in Ex.P5 All these aspects have been properly dealt with and the Court below has rightly declined to rely on the above said evidence

produced by the petitioner in proof of her contention that she is the wife of the respondent herein.

On the other hand, the case of the respondent happens to be more consistent and reliable than that of the petitioner. It is the clear averment

made by the respondent that the petitioner was his aunt (mj;ij) in relation. Though the same was sought to be denied by the witnesses examined on

the side of the petitioner, they have not given even the name of the father of the petitioner and his relationship with the father of the respondent. On

the other hand, the respondent, besides examining himself as RW1, examined his father Chinnasamy as RW2 and one Rajendran as RW3. All of

them categorically stated that the father of the petitioner and RW2 Chinnasamy were brothers and thus the petitioner was the aunt (mj;ij) of the

respondent in relationship. It is the clear evidence of RW2 that the petitioner was daughter of his junior paternal uncle Muthumsamy. The said

evidence of RW2 stands uncontraverted. Besides the said evidence which will make the case of the petitioner improbable and probablize the case

of the respondent that the respondent could not have married her, there is clear evidence adduced on the side of the respondent to the effect that

the petitioner had illicit intimacy with her sister''s husband Periyasamy and was living with him only. All the three witnesses examined on the side of

the respondent have supported the case of the respondent in this regard. At the same time, there are also admissions on the part of PW4 which

corroborate the evidence of RW1 to RW3. PW4 who is the sister of the petitioner did not deny the suggestion that the petitioner was living with

Periyasamy, the husband of Chinnamma, another sister of the petitioner. She has also pleaded ignorance as to whether the said Periyasamy was

keeping the petitioner as a concubine. The Court below took into consideration the above aspects, marshalled the evidence in proper perspective

and came to the correct conclusion that the petitioner had failed to substantiate her case that she was the wife of the respondent. This Court finds

no infirmity or discrepancy in the above said findings of the trial Court and there is no scope, whatsoever, to interfere with the same in this revision.

In view of the foregoing discussion, this Court is of the view that the Court below has not committed any error in coming to the conclusion that

the petitioner has failed to prove her status as wife of the respondent and in dismissing the claim for maintenance based on such finding. The order

of the trial Court is perfectly in order and there is no scope for interference. The Criminal Revision Case must fails and accordingly the same is

dismissed.