Udayakumar vs R. Kalavathi and another

M.N. Moorthy, J.—This is a petition to revise the order of maintenance awarded to the Respondents by the learned II Metropolitan Magistrate, Egmore, Madras, in M.C. No. 2162 of 1978.

The present petition arises under the following circumstances. The first Respondent filed a petition against the Petitioner for maintenance for herself and for her child, the second Respondent, on the ground, she was married to him on 6th June, 1977, and the second Respondent was born to him. The marriage was registered in the presence of relatives and elders. After living for a few months together, disputes arose between the husband and wife, which resulted in the Petitioner trying to arrange for a betrothal for his second marriage with one Vinotha of Kolar Gold field, Mysore. The first Respondent was able to stop it. Ultimately, the Petitioner married as his second wife one Anbarasi. On 24th July, 1978, the Petitioner deserted the first Respondent which made her live in her parents'' house. The second Respondent was born subsequently. She claimed maintenance of Rs. 200 per month for herself and Rs. 100 per month for the child.

The Petitioner challenged the maintenance petition on the ground that the first Respondent was not his wife and the second Respondent was not his daughter. According to him, on 6th June, 1977, only an agreement of marriage was registered and he was compelled to sign the agreement by coercive methods. He was ill-treated by the relations of the first Respondent. He was kidnapped to the Registrar''s office where he was compelled to sign the agreement of marriage register and a photo was also taken by compulsion. When he wanted to escape from the first Respondent and her relations, he was threatened to be burnt alive.

The learned Magistrate, after elaborately going into the contentions of both sides held that the document Ex.P3 , signed before the Registrar was voluntarily executed by the Petitioner and the first Respondent as they had decided to marry. He came to the conclusion that on 6th June, 1977, there was valid marriage between the Petitioner and the first Respondent and the first Respondent was the legally wedded wife of the Petitioner. He further found, there was no ground to suspect the chastity of the first Respondent and the second Respondent was born to the Petitioner. Finally, as the Petitioner was living with another wife, he held the Respondents were entitled to live separately and claim maintenance and awarded Rs. 100 per month to the first Respondent and Rs. 50 per month to the second Respondent towards their maintenance.

Mr. T.S. Arunachalam, learned Counsel appearing for the Petitioner, contended that there was no marriage between the Petitioner and the first Respondent and Ex.P3 is only an agreement to marry and even the signature in Ex.P3 was obtained from the Petitioner by coercion. On 17th September, 1977, even this agreement was cancelled by Ex.R2. He contended that a reading of Ex.P3 will show that it is an agreement of marriage and by itself it will not be sufficient to hold there was a valid marriage. But certainly it shows what the intention was between the parties when they entered into the agreement Ex.P3. The contention that the signature of the Petitioner in Ex.P3 was obtained by threat and coercion does not stand a moment''s scrutiny. According to the Petitioner, when he was going to his friend''s house often, the first Respondent''s father requested him to marry his daughter which he refused. As a result, the first Respondent''s father and some others kidnapped him in a taxi on 6th June, 1977 to the Pursawalkam Registrar''s office, where he was asked to sign Ex.P3 by threat. One circumstance to show that this version is not true is that, in Ex.R2, which is the cancellation document of Ex.P3, nothing was mentioned about the coercion or threat, before Ex.P3, came into existence. It should be noted that Ex.R2 cancellation deed was executed only by the Petitioner. This cancellation was on 17th September, 1977 whereas Ex.P3 marriage agreement was on 6th June, 1977. Nothing prevented the Petitioner from cancelling Ex.P3 immediately after 6th June, 1977, it it was obtained by coercion. Even in the subsequent notice sent through the Petitioners''s counsel informing about Ex.R2, it was not mentioned there was any coercion at the time Ex.R3 was registered. His being kidnapped to the Registrar''s office is only to be stated to be rejected. The lower Court was justified in holding that Ex.P3, was voluntarily executed.

A perusal of the evidence of the first Respondent and her father, P.W.2, clearly shows that the Petitioner was keen to marry the first Respondent and, as his parents were against it, he wanted the marriage to be held in the Registrar''s office. After Ex.P3 was registered, garlands were exchanged and the thali was tied by the Petitioner on the neck of the first Respondent. What is more, a photo of Ex.P1 was taken soon after. The Petitioner paid the charges for the photo. It is futile for the Petitioner to argue that the photo was also taken by threat. Over and above these, in Ex.P4, petition sent to the Inspector of Police by the Petitioner and the first Respondent, it is stated that the Petitioner had married on 6th June, 1977, on both parties being willing, before the Registrar, and they asked the police to help them to lead their life happily. The signature in Ex.P4 is admitted by the Petitioner. The evidence of R.W.3, the father of the Petitioner and his complaint Ex.P10 to the panchayatdars, a few days after the marriage, prove beyond doubt that the first Respondent came with a thali to his house after the marriage with the Petitioner. The mother of the Petitioner R.W.2, also admits that the first Respondent came with a thali to her house. The fact that there was a marriage as contemplated u/s 7-A of the Hindu Marriage Act, as there was an exchange of garlands between the parties and a thali was tied, is proved beyond doubt. The learned Counsel for Respondents relied on a decision of Maheswaran, J. in Koodappan v. Kothai alias Kothai-Nachiar Ammal 1979 L.W. (Crl.) 154 to show that there was a valid marriage between the Petitioner and the first Respondent in the instant case. It was argued on Ex.R1, Registrar''s reply to R.W.3, that there was no marriage between the Petitioner and the first Respondent. As stated supra, on Ex.P3 alone, it may not be sufficient to hold that there was a marriage. But, the other surrounding circumstances like the exchange of garlands, tying of thali and taking of photo, make it a valid marriage. The lower Court was correct in holding that there was a valid marriage between the Petitioner and the first Respondent.

The second Respondent was born on 30th August, 1978. According to the Petitioner, the marriage agreement was cancelled on 17th September, 1977, by Ex.R2, and he could not have lived with the first Respondent after that date and hence the child born on 30th August, 1978 could not be his. But the evidence of the first Respondent is that she was deserted only on 24th July, 1978 when she was carrying. The first Respondent was pestered to give her consent for the second marriage of the Petitioner and she refused. The Petitioner was able to marry Anbarasi as his second wife. As Ex.R2 cancellation deed contains only the signature of the Petitioner, it must have come into existence without the knowledge of the first Respondent. In this regard, two decisions were placed by learned Counsel for the Petitioner before me. In Durairaju v. Neela 1976 L.W. (Crl.) 113, Ratnavel Pandian, J. observed-

To decide the paternity of the child it is prima facie improper to accept the mere statement of the mother, upon whom lies the burden to establish the paternity of the child. It is true that corroborative evidence is not usually forthcoming and therefore the Magistrate has to rely upon other corroborating circumstances if they are available. But at the same time it is not correct to say that unless the child is admitted by the putative father to be his illegitimate child, the Magistrate has no power to make an order for payment of maintenance. The basis of an application for maintenance of a child is the paternity of the child irrespective of its legitimacy or illegitimacy. Therefore, it is the duty of the Court, before making the order, to find definitely though in a summary manner, the paternity of the child.........

The burden of proof is not upon the father of the child in such cases. 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."

In Mahadeva Rao v. Yasoda Bai 1961 M.W.N. Crl. 164, Anantanarayanan, J. held:

No presumption of paternity can arise in a proceeding u/s 488 , Code of Criminal Procedure with regard to children born out of wedlock merely upon the entries found in certain birth register extracts where there is no evidence to show that the alleged father was the informant or that he gave some information constituting admission of paternity.

In the instant case, the child, the second Respondent, was born while the relationship of husband and wife between the Petitioner and the first Respondent subsisted. Hence, the presumption is that the child was born to the Petitioner unless the contrary is established. The evidence of the first Respondent was that she was deserted when she was pregnant on 24th July, 1978. Though the cancellation deed Ex.R2, unilaterally executed by the Petitioner came into existence on 17th September, 1977, there is absolutely no evidence to support that the Petitioner had no access to the first Respondent after that date. The evidence of P.W.2, the father of the first Respondent is that the desertion took place on 24th July, 1978. The learned Magistrate has accepted the evidence on the side of the Respondents and, I have no reason to differ from the same. No doubt, no birth certificate of the second Respondent was produced. But we have the evidence of the first Respondent that Ex.P9 was given to her in the hospital when she became a mother. According to her she had given the Petitioner''s name as the father of the child. Even in the grounds of the petition of the Petitioner, it is stated, "marriage was cancelled on 17th September, 1977", thereby implying there was a marriage and the Petitioner and the first Respondent were living together, apart from the admissions made by the Petitioner in his deposition.

The learned Counsel for Respondents brought to my notice the decision in Aziz Mohd Vs. Mst. Sayda Begum, to support his contention that a wife is entitled to live separately and claim maintenance if there was a re-marriage of the husband and she need not prove neglect or refusal. She is justified in claiming maintenance by refusing to live with him in such circumstances.

The order of the learned Magistrate who went into the matter thoroughly and came to the conclusion that both the Respondents are entitled to claim maintenance from the Petitioner, is correct. Having regard to the respective positions of the Petitioner and the first Respondent, and taking all the other relevant factors into consideration, the quantum of maintenance awarded to the Respondents is by no means excessive.

The net result of the analysis is that there is no ground to interfere with the order of the II Metropolitan Magistrate in C.C. No. 2162 of 1978 and this revision petition is dismissed.