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2000 DIGILAW 1142 (MAD)

Kandasamy Gounder v. Palaniammal

2000-11-16

B.AKBAR BASHA KHADIRI

body2000
ORDER Aggrieved by the orders passed by the trial court, the respondent therein has come forward with the instant R.C. The R.C. has arisen in this O.P. For convenient sake, I feel the revision petitioner herein can be hereinafter referred to as ‘respondent’ and the petitioner before the trial court who is the respondent herein can be referred as respondent in this R.C. 2. According to the petitioner before the trial Court, she married the respondent Kandasamy about 18 years back and out of the wed-lock, a son by name Nattuthurai was also born. It is the case of the petitioner that the respondent has neglected and refused to maintain the petitioner and her son, that the petitioner and her son were unable to maintain themselves. Therefore, she has instituted proceedings under Sec.125, Cr. P.C. claiming maintenance from the respondent therein. 3. In the counter, the respondent raised the following contentions: The petitioner is not his wife and Nattuthurai is not his son. According to him he married one Chellammal about 27 years back, through her he has a daughter by name Mariammal and a son by name Karuppusamy. Daughter Mariammal is married and living separately. Karuppusamy is yet to be married. The petitioner, Palaniammal's husband is one Muthusamy. The respondent Kandasamy had certain money dealings with Muthusamy which led to difference of opinion and consequential enemity. Muthusamy had set up his wife Palaniammal to claim maintenance from the respondent and this petition is instituted only to harass the respondent. 4. The learned trial Magistrate examined the petitioner as P.W.1. On her side, she had marked Exs.P-1 to P-6. On the other hand the respondent examined 4 witnesses on his side. The learned trial court analysed the evidence and come to the conclusion that Palaniammal, the petitioner therein had established existence of legal marriage between herself and the respondent and accordingly directed the respondent therein to pay Rs.250 p.m. as maintenance to the first respondent and Rs.150 p.m. to the second respondent namely the son. Hence the petitioner has preferred the instant revision. 5. Heard both sides. 6. Perused the records. The point to be decided in this R.C. is whether or not the petitioner before the trial court has established a valid marriage between herself and the respondent for her to claim maintenance. It would be useful to recall the provisions of sec.125, Cr. Hence the petitioner has preferred the instant revision. 5. Heard both sides. 6. Perused the records. The point to be decided in this R.C. is whether or not the petitioner before the trial court has established a valid marriage between herself and the respondent for her to claim maintenance. It would be useful to recall the provisions of sec.125, Cr. P.C. which reads as follows: 125: Order for maintenance of wives, children and parents: (1) If any person having sufficient means neglects or refuses to maintain: (a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate minor child, whether married or not unable to maintain itself; or (c) his legitimate or illegitimate minor child (not being married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself; or (d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means. (2) Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance. (2) Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance. (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided lor levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extent to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due: Provided further that if such person to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. (4) No wife shall be entitled to receive an allowance from her husband under this Section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. (5) On proof that any wife in whose favour an order has been made under this Section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order. 7. From the provisions, it is clear that the existence and continuation of a conjugal relationship is the foundation of an order of maintenance along with the further key factor, that the wife is unable to maintain herself. It should also be pointed out that the burden of proof to establish a case under Sec.125, Cr. P.C. is on the party who claims maintenance, the party is not required to prove her case beyond all reasonable doubt. The aggrieved party can establish her case on a preponderance of probability. 8. It should also be pointed out that the burden of proof to establish a case under Sec.125, Cr. P.C. is on the party who claims maintenance, the party is not required to prove her case beyond all reasonable doubt. The aggrieved party can establish her case on a preponderance of probability. 8. In the instant case, Palaniammal the petitioner before the trial Court claims herself to be the wife of Kandasamy. But according to respondent Kandasamy, he is already wedded to Chellammal. He had also deposed that petitioner Palaniammal was already married to one Muthusamy. 9. The pleadings and evidence is to the effect that the said Muthusamy has already married to one Muthaiammal and through her he has children. I have already mentioned that the burden lies upon the petitioner to prove that a valid marriage exists between herself and the petitioner, she need not to prove to the hilt but we have to consider the preponderance of evidence. 10. The petitioner did not examine any other witnesses before the trial court to establish her marriage though, she had given the names of certain persons who had attended the marriage, she had not thought it fit to cite any one as witnesses and examine them to establish the factum of marriage. We are left with her oral evidence. Even in her oral evidence, she had not stated the year of marriage, much less the date of marriage the ceremonies performed at the time of alleged marriage. I am conscious that it is not necessary that ceremonies should be performed to conclude a marriage, but it is for the petitioner to prove which form of marriage was undergone by both the parties. 11. Per contra, the respondent had examined four witnesses including himself. The respondent and his witnesses R.W.2 speak of the marriage of Kandasamy with Chellammal. R.W.3 furnished negative evidence, in that he had stated that he had not seen the petitioner and the respondent living together, but the respondent was already married to Chellammal. R.W.4, the Technical Assistant working in the Taluk Office has spoken about issuance of ration card to the respondent, in which, the name of the petitioner does not find a place. It would thus be evident that the petitioner had not established existence of a valid marriage by letting in any oral evidence. R.W.4, the Technical Assistant working in the Taluk Office has spoken about issuance of ration card to the respondent, in which, the name of the petitioner does not find a place. It would thus be evident that the petitioner had not established existence of a valid marriage by letting in any oral evidence. The documentary evidence furnished in the shape of the ration card and community certificate by itself, would not give raise to a presumption of marriage, because admittedly the petitioner and the respondent were living apart from a long time. Therefore, it is but natural that the name of the one or the other parties might not be appearing in the ration card. 12. In the instant case, the presumption that can be drawn under the relevant provision of Evidence Act that continuous co-habitation for a long period and recognition of the petitioner and respondent as man and wife cannot be also drawn. Because admittedly, the parties were living apart from a long time. The petitioner herself and claimed that she was living away from her husband from a long time. But there is no indication as to how long they have been living apart. Therefore, the presumptive marriage on the basis of long co-habitation also cannot be drawn in this case. 13. The only piece of evidence on which the petitioner relies is a piece of circumstantial evidence. According to her she had issued a notice to the respondent on 20.4.1998. The notice was returned without service. Without even knowing as to what at all the contents of the notice, he respondent sent a reply on 20.5.1998, wherein he had blurted out that he presumed that he notice was intended to make a claim for maintenance. 14. According to the learned counsel appearing for the respondent herein, namely Palaniammal if really the petitioner herein had no conjugal relationship with the respondent how could he presume that the unserved notice was for a maintenance claim from a person conjugaly unknown to hime 15. According to the learned counsel appearing for the petitioner herein that circumstances would in a way prove that the petitioner herein is to give to sweep the truth under the carpet. Of course, this circumstance may point a finger towards the existence of her marriage status between the petitioner and the respondent. 16. According to the learned counsel appearing for the petitioner herein that circumstances would in a way prove that the petitioner herein is to give to sweep the truth under the carpet. Of course, this circumstance may point a finger towards the existence of her marriage status between the petitioner and the respondent. 16. I feel that by itself, would not be sufficient for the petitioner to claim maintenance because, there is one more hurdle which leads the petitioner to cross roads. It is this; both parties admit that Kandasamy is already married to one Chellammal. If Kandasamy had a first wife by name Chellammal, according to Palaniammal the petitioner before the trial Court admitted that Kandasamy had married her after the death of Chellammal. But absolutely there is no evidence to establish that Chellammal died or when Kandasamy married Palaniammal. Though, according to P.W.1 Palaniammal, Kandasamy married her about 18 years back, she had not let in any evidence to prove that Chellammal had died prior to her marriage, she had not even uttered the name of Chellammal in her notices nor even in the petition but, only in the course of evidence she had admitted that she is the second wife. But for her ipse dixit that Kandasamy married her subsequent to the death of Chellammal, there is no clinching evidence available to establish the same. The probative value of her oral evidence nullified by the probative value of respondents R.W.1 and R.W.2. 17. Thus perusal of the evidence and records would show that the petitioner had not established existence of a valid marriage between her and Kandasamy for her to claim maintenance. While the factum of marriage was categorically denied by the petitioner herein, he respondent herein had failed to prove that she was the legally wedded wife of Kandasamy. Provisions of Sec.125, Cr. P.C. have been engrafted in the code for preventing destitution, vagrancy, immorality and crime on the scrap-heap of the society. Such protection is given to the wife, children and the parents, considering the conjugal, filial and paternal relationship that exists. But a party who has no sort of blood or conjugal nexus with the other party can seek the courts of law to offer protection to himself or herself. 18. Such protection is given to the wife, children and the parents, considering the conjugal, filial and paternal relationship that exists. But a party who has no sort of blood or conjugal nexus with the other party can seek the courts of law to offer protection to himself or herself. 18. I am of the view that the learned trial court Magistrate had failed to appreciate the evidence in the proper perspective and therefore, committed error in law in holding a legal marital status that exists between the petitioner and the respondent which had resulted in grant of maintenance. 19. In that view of the matter, I set aside the orders passed by the learned Judicial Magistrate. The petition in Crl.M.C.No.15 of 1998 shall stand dismissed. Consequently, connected Crl.M.P.No.4171 of 2000 is closed. B.S.-----Revision allowed.